CR.A/1883/2004 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1883 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE STATE OF GUJARAT - Appellant(s) Versus GAMNAJI BHURAJI PRAJAPATI (VENDOR AND OWNER OF SHOP) & 2 - Opponent(s) ========================================================= Appearance : MR MUKESH PATEL, ASST. UBLIC PROSECUTOR for Appellant(s) : 1, MR DM AHUJA for Opponent(s) : 1, MR DK MODI for Opponent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 04/07/2006 ORAL JUDGMENT 1. The appellant - State of Gujarat has preferred this appeal and leave to appeal under Section 378 of the Code of Criminal Procedure; 1973 challenging the judgment and order of acquittal dated 14th July, 2004 passed by the Chief Judicial Magistrate, Ahmedabad (Rural), in CR.A/1883/2004 2/13 JUDGMENT Criminal Case No. 1573 of 1994 acquitting the respondent Nos.1 to 3 - original accused Nos. 1 to 3 of the charges under Sections 2(1A) (A) (M), 7(1) r.w. Section 16 (1A) (1)(2) of the Prevention of Food Adulteration Act; 1954 (hereinafter referred to as “the PFA Act” for short). 2. Heard the learned counsel for the respective parties. 3. Shri Patel, learned APP, has taken this Court through the memo of the appeal, judgment and order impugned and the relevant documents pertaining to Criminal Case No. 1573 of 1994. 4. The brief facts leading to the filing of this appeal are to be set out as under :- The original complainant – Food Inspector on 22nd December, 1993 at 10.30 A.M. visited the store owned by accused No.1 in the style and title of Prakash General Stores. The accused No.1 was selling “super star brand double filter groundnut oil” in seal packed condition. The original complainant – Food Inspector bought 400 gms of groundnut oil out of the seal packed 1 ltr oil bottle containing Agmark Label No. 24-A- 318399 and Batch No. P. Shah Jagjivandas Hirachand, Ahmedabad, who has also been arraigned as accused No.3, is a Firm. The CR.A/1883/2004 3/13 JUDGMENT accused No.2 is a nominee of the Firm. The sample food article was firstly collected in the steel bowl and thereafter, it was divided into three parts and collected in a glass bottles. The glass bottles were sealed in accordance with the law and the serial number No. 2/FDA/AHD/HQ- 1/2/129/93 was pasted thereon. The panchnama was drawn and the requisite Notice in Form – 6 was issued. The receipt for payment was also obtained as the record shows. As the sample food article was found to be adulterated in the opinion of the Public Analyst, the necessary details were submitted to the Local Health Authority for obtaining sanction for lodging prosecution. On receiving the sanction from the Local Health Authority for lodging the prosecution, the complaint came to be lodged and it came to be registered as Criminal Case No. 1573 of 1994 in the Court of Chief Judicial Magistrate, Ahmedabad (Rural). After lodging the complaint, the Notice under Section 13(2) came to be issued upon the respondents. After recording the plea of denial, the trial had commenced. The trial Court has come to the conclusion that the prosecution has failed in proving its case beyond doubt and therefore, acquitted the accused of the charges of committing offence under Sections 2(1A) (A) (M), 7(1) r.w. Section 16 (1A)(1)(2) of the Prevention of Food Adulteration Act; 1954. CR.A/1883/2004 4/13 JUDGMENT 5. Shri Patel, learned APP, has vehemently submitted that the report of the Central Food Laboratory is very clear on the aspect of the food stuff i.e. Food sample being adulterated. When the food sample was not in conformity with the standards laid down and when there was conclusive proof of adulteration in Form of Central Food Laboratory's Report, the trial court ought not to have recorded the acquittal on the so called infirmities in the procedure for collecting the sample like, non-cleaning of bottles in accordance with Rule – 14 of the PFA Rules and not stirring the quantity of oil before taking the sample, and for so called discrepancies in numbers mentioned in the report of the Central Food Laboratory. These are the aspects, which have no bearing on the factum that the food article, that is groundnut oil was in fact, not in conformity with the provisions of PFA Rules and it was sold by the accused No.1, who had received the same from the accused Nos.2 and 3. The accused have, therefore, been errorneously acquitted by the trial Court. The trial Court has erred in recording the acquittal. The trial Court has erred in appreciating the evidence on record and therefore, this appeal deserves to be admitted and the respondents deserve to be dealt with in accordance with law. 6. This Court has perused the record of the CR.A/1883/2004 5/13 JUDGMENT Criminal Case No. 1573 of 1994 as it was available with the learned APP, Shri Patel. Shri Modi, learned counsel, for the respondent Nos.2 and 3 and Shri Ahuja, learned counsel, for the respondent No.1 have taken this Court through the relevant papers pertaining to Criminal Case No. 1573 of 1994. The learned counsel for the respondents have attempted to persuade this Court for declining leave to appeal on the basis of the patent infirmity in the case of prosecution, which cannot be cured at the appellant stage especially in acquittal appeal. It is submitted on behalf of the respondents that the leave deserves to be refused and appeal deserves to be rejected only on the three counts, namely, (i) the prosecution has failed in proving due compliance with mandatory provisions of Rule – 14 of the PFA Rules, (ii) the prosecution has also failed in proving beyond reasonable doubt that the sample in question was collected in absolute compliance with the Rules, which are mandatory in nature and, that (iii) there were discrepancies in the serial numbers mentioned in the Central Food Laboratory's Report, which did not tally with the number, which was mentioned on the sample. Thus, the identity of the sample, itself, was not beyond doubt. These three grounds can be made good by the perusal of the deposition of the original complainant – Food Inspector, the report of the Central Food Laboratory and the CR.A/1883/2004 6/13 JUDGMENT label on the sample. These infirmities cannot be cured by the prosecution in the acquittal appeal. 7. The learned counsel for the respondents have submitted that the prosecution has not led any positive evidence whatsoever for proving due compliance with Rule – 14 of the PFA Rules. Mere stereo type recital by the Food Inspector that the bottles being clean is in itself would not be sufficient to prove due compliance of Rule – 14 of the PFA Rules. Shri Modi, learned counsel for the respondent Nos.2 and 3 has relied upon the decision of this Court in case of State of Gujarat V/s. Sohanlal Trikamchand Shah reported in 1995(2) GLR P 1099 in support of the submission that the prosecution is required to prove due compliance with Rule – 14 of the PFA Rules. Shri Modi has also relied upon the decision of the Madhya Pradesh High Court in case of Dharma Chandra V/s. Food Inspector And Another reported in 1985 (11) PFA Cases P 199 in support of his submission that the oil was required to be stirred and made homogeneous before the sample was taken therefrom. As it is nowhere brought on record by the prosecution to show that the entire quantity of oil was made homogenized before the sample was taken therefrom. The procedure was not complied with for taking the oil sample. Shri Modi has also relied upon the decision of the Bombay High CR.A/1883/2004 7/13 JUDGMENT Court in case of State of Maharastra V/s. Vinayak Mahadeora Waze And Another reported in 2005(2) FSC P 126 in support of his submission that the sample food article – oil ought to have been collected only after making the entire quantity homogenized. In other words, the sample food article is necessarily required to be representative of the entire quantity. The thrust is on the sample being representative of the entire quantity. Shri Modi has also invited this Court's attention to the discrepancy in the serial number, that in the deposition of the complainant, it is clearly mentioned that the sample was containing Serial No. 2/FAD/AHD/HQ- 1/129/93. Now, this is not reflected exactly in the report of the Central Food Laboratory. The Central Food Laboratory's Report, which is produced on record indicates the following as sample Serial No.2/FAD/AHD/129/93. Thus, the mentioning of 'HQ-1' is conspicuously missing in the report of the Central Food Laboratory. Shri Modi has submitted that though this omission may appear to be mistake, but when the certificate, which is treated as conclusive proof of adulteration, contains some discrepancies then it raises doubt about the case of the prosecution and therefore, the benefit thereof should accrued to the respondents. He has relied upon the decision of this Court in case of Vishnuprasad C. Dodiya V/s. Surendrakumar Mohanlal Thakkar & Another reported in 1994(1) CR.A/1883/2004 8/13 JUDGMENT GLR P-487, in that case also, there was such discrepancies noticed in the Serial Number. 8. Thus, on these three counts, it can well be said that the case of the prosecution was rightly not believed by the trial Court and therefore, no interference is called for in the acquittal appeal. This Court has perused the record and heard the learned counsel at length. 9. These three grounds canvassed by the respondents deserve to be discussed in its appropriate perspective. The deposition of the Food Inspector and his admission in cross-examination would clearly go to show that the prosecution could not prove due compliance with mandatory provisions of Rule – 14 of the PFA Rules. It is, time and again, held by this Court and various other High Courts also that merely making a statement in the Examination-in-chief about the bottle of sample being clean in itself would not be sufficient in absence of any other positive evidence for due compliance of Rule – 14 of the PFA Rules. In the instant case, as it is stated hereinabove, the complainant – Food Inspector in his cross-examination has clearly admitted that he has not cleaned the bottle nor did he have them cleaned by anyone, and the bottles were received from the Office and he had no knowledge when the bottles were cleaned in the Office. This would be sufficient to show that the CR.A/1883/2004 9/13 JUDGMENT prosecution has failed in proving due compliance of Rule – 14 of the PFA Rules. 10.The second contention in respect of making the oil homogeneous before the sample was taken also deserves due consideration. The fact remains that the oil was collected from a packed bottle of 1 ltr. Shri Patel, learned APP, has, therefore, attempted to persuade this Court that the sample of oil was collected from 1 ltr bottle and when it was being examined for verifying that it was not having any leakage the oil was naturally got stirred and therefore, there was no specific requirement to stir the oil as to state in deposition that the oil was collected after stirring it. Such a contention should not be accepted. This contention of Shri Patel is not tenable. The real thrust is upon sample being representing the food stuff, which is being sold. In the instant case, nowhere it is stated either by the Food Inspector or by other witnesses that the sample, which was taken from the bottle of 1 ltr was representing the entire quantity. The representative character of the sample is essential for fastening the criminal liability. In the instant case, as it is seen from the record, the prosecution has failed in proving that the oil sample was collected before making the entire oil homogeneous. The reliance placed by Shri Modi in support of his contention upon the decision of CR.A/1883/2004 10/13 JUDGMENT the Bombay High Court and Madhya Pradesh High Court is well placed as the ratio therein would also be applicable in the present case. 11.The third contention with respect to discrepancy in mentioning the serial number of the sample in the report of the Central Food Laboratory also deserves to be considered and accepted. The omission of mentioning 'HQ' may not appear to be an intentional or may be due to mistake but it has bearing upon the identity of the sample. However, when the sample is being tested by the Central Food Laboratory, whose report is going to be treated as conclusive proof, than, the report needs to be unequivocally clear upon the aspect of identity of the sample. In the instant case, the omission to mention 'HQ' is capable of raising doubt about the very identity of the sample and therefore, this contention also deserves to be accepted. Shri Modi has relied upon the decision of Visnuprasad (Supra) wherein, the controversy was in respect of mentioning 'U' instead of 'V” and yet this Court found that the said discrepancy was fatal to the case of prosecution. The relevant portion of the judgment is to be set out in order to hallucinate the contention. “Para – 5. On going through the Examination-in- Chief of the Food Inspector, it transpires that he has produced a copy of forwarding letter CR.A/1883/2004 11/13 JUDGMENT dated 25.1.1979 (Exh.61) and the report of Public Analyst (Exh.67) on the record. When these two documents, viz., Exh.61 & Exh.67 respectively are compared and verified, it further clearly appears that there is no variance in describing the said sample in each of these two documents. In other words, both the forwarding letter (Exh.61) and Report (Exh.67) clearly vouchsafe the identity of mudamal sent by Food Inspector for analysis and the one that ultimately came to be analysed by Public Analyst and reported to the Food Inspector as the same one. However, for whatever reasons, the Food Inspector while giving evidence before the Court and referring to the Serial Number of the sample and describing it as the particular serial number, some mistake appears to taken place. If we minutely peruse the documents Exhs.61 & 67, the serial number mentioned therein id described as D-17/5(IV)(I) in English. While taking down the same in Gujarati, it came to be recorded as “D-17-5(1U)(1)”. This is how, there is a patent inconsistency in referring the muddamal sample before the Court in place of the one there was forwarded to and ultimately came to be analysed by the Public Analyst. In short, what is referred to as 'serial number' of the sample by Food Inspector in his evidence before Court is not the one and the same which was forwarded to the Public Analyst and which ultimately came to be analysed ! When such is the conflicting CR.A/1883/2004 12/13 JUDGMENT position, it is indeed difficult to connect the respondent with the crime alleged against him. When Mr. A.R.Thakkar, the learned Advocate for appellant was confronted with the above glaring confusiong, he was not in a position to stear clear of it to set at rest insurmountable controvercy. .........................Under such circumstances, it is not advisable for this Court to bridge the discrepancy by inferential engineering. It is unfortunate that the offenders of the social beneficial piece of legislation like the one under Food Adulteration Act goes scot-free on the sole ground of an avoidable mistake committed in the instant case either by the Complainant-Food Inspector and/or in the second instance by the learned Magistrate.” 12.In view of the aforesaid discussion, this Court is of the considered opinion that the leave to appeal does not deserve to be granted and the appeal, itself, deserves to be rejected. As this being an acquittal appeal, the order of acquittal need not be interferred, unless and until, it is resulted into miscarriage of justice. In absence of any such plea in the present case, this Court is not inclined to interfere with the judgment and order of acquittal dated 14th July, 2004 passed in Criminal Case No. 1573 of 1994 by the learned Chief Judicial Magistrate, Ahmedabad (Rural). In CR.A/1883/2004 13/13 JUDGMENT the result, the request for leave is refused. The appeal, therefore, stands disposed of accordingly. (S.R.BRAHMBHATT, J.) kdc.