CR.RA/17/1996 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 17 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE =============================================== 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 ? =============================================== CHANDULAL POPATLAL. Versus STATE OF GUJARAT. =============================================== Appearance : Mr KV SHELAT for the Applicant. Mr KC SHAH, APP, for Opponent No.1. Mr SATYAM Y CHHAYA for Opponent No.2. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE Date : 08/12/2008 ORAL JUDGMENT:- 1. The Revisionist came to be prosecuted for the offences punishable under Section 7(5) read with Section 16(1)(a)(i) of the CR.RA/17/1996 2/6 JUDGMENT Prevention of Food Adulteration Act, 1954, for sale of adulterated turmeric powder, by the Food Inspector in the Court of Metropolitan Magistrate, Court No.8, Ahmedabad, in Criminal Case No.13 of 1993 and came to be convicted therefor by judgment and order dated 2nd December, 1994 and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/-, in default, to undergo further rigorous imprisonment for one month. 2. The prosecution was on the basis of the fact that the sample sent to Public Analyst was found to contain wheat starch. On the summons being served, the Revisionist asked for the sample being sent to the Central Food Laboratory (“CFL” for short) and the sample was, accordingly, sent. The CFL also confirmed presence of wheat starch. As per the standards prescribed, turmeric powder is not supposed to contain any amount of wheat starch. 2.1 The judgment and order of learned Metropolitan Magistrate was challenged in appeal before City Sessions Court, Ahmedabad, by preferring Criminal Appeal No.53 of 1994, which came to be dismissed by judgment and order dated 12th January, 1996, confirming the conviction and the sentence by the Metropolitan Magistrate Court. It is against these two judgments and orders that the present Revision Application is preferred. CR.RA/17/1996 3/6 JUDGMENT 3. Learned Advocate, Mr. Shelat, for the Revisionist has contended that for testing the presence or absence of wheat starch, chemical examination is essential as per several judicial pronouncements. He relied on the decision in the case of Jagdish Chandra v. State of Uttar Pradesh, (1982) 1 SCC 350 and the decision in State of Gujarat on behalf of M. G. Shaikh, Food Inspector v. Ahmed Gulam Mohmed Umar, 2005(1) FAC 62 besides two unreported judgments of this High Court, one in Criminal Revision Application No.267 of 1993 dated 15.9.1993 (Coram: N. J. Pandya, J.) and another in Criminal Appeal No.65 of 1984 with Criminal Appeal No.1030 of 1984, decided on 11.6.1993 (Coram: B.C. Patel, J.), only in respect of turmeric powder. He submitted that this aspect was not considered by the Courts below and conviction is recorded and confirmed. Mr. Shelat submitted that the Appellate Court committed an error by observing that the evidence of Public Analyst supports his report and his report is at par with the CFL report and, therefore, the case is proved. He, therefore, submitted that the Revision Application may be allowed by setting aside the judgments and orders of the Courts below. 4. Having regard to the factual situation, following aspects remain undisputed :- (1) The sample was draw by the Food Inspector with due authority. It was properly sealed and sent to the Public CR.RA/17/1996 4/6 JUDGMENT Analyst. The Public Analyst gave his report (Exhibit 18), according to which, the sample conformed to the required standards so far as other aspects were concerned but there was additionally found plenty of wheat starch. So far as finding of wheat starch is concerned, it is given on the basis of microscopic examination. The evidence of the Public Analyst also conforms the same, though he says that chemical examination and other tests were performed for other results, which conformed to the standard. (2) The personnel from CFL has not been examined, but the report of CFL is at Exhibit 4. Reading of that report indicates that presence of wheat starch was found in the sample on microscopic examination, which should not have been found at all, if it was to meet with the required standards. The other tests conformed to the required standard. Reading of exhibit 4 would indicate that the opinion regarding presence of wheat starch was founded only on the basis of microscopic examination. 5. With this factually undisputed situation, if the legal position is seen, the Supreme Court has, in the case of Jagdish Chandra (supra) indicated that the report of Public Analyst made on the basis of microscopic test, which indicated that the sample was not cinnamon but contained cent per cent foreign bark, could CR.RA/17/1996 5/6 JUDGMENT not have been the basis of conviction. The Court observed that chemical tests, including treatment of the ash in the sample with Hydrochloric Acid would be a must in light of the Rules (Items) A.05.06 and A.05.06.01. 5.1 Relying on the said judgment, this Court in Criminal Revision Application No.267 of 1993, by order dated 15.9.1993, took a view in respect of turmeric powder that, if the report by the CFL about content of wheat starch is found on the basis of only microscopic examination, it would be essential to have a chemical analysis, which is the only evidence acceptable under law to determine content of starch both quality-wise and quantity-wise and, in absence of chemical analysis, when the opinion was founded only on microscopic examination, the conviction was set aside. In another judgment in Criminal Appeal No.65 of 1984 with Criminal Appeal No.1030 of 1984, referred to hereinabove, a similar view was taken and, lastly, in the case of State of Gujarat on behalf of M.G. Shaikh, Food Inspector v. Ahmed Gulam Mohmed Umar, 2005(1) FAC 62, again same view has been taken. Under the circumstances, when there is no evidence to show that any test other than microscopic examination was undertaken to ascertain the presence of wheat starch, the conviction recorded by the Trial Court and confirmed by the Appellate Court cannot be permitted to stand. CR.RA/17/1996 6/6 JUDGMENT 6. In the result, the revision application would stand allowed. The judgment and order of conviction and sentence passed by the Trial Court in Criminal Case No.13 of 1993 as confirmed by the Appellate Court in Criminal Appeal No.53 of 1994 is hereby set aside. The Revisionist is acquitted of the charges levelled against him. Fine, if paid, shall stand refunded. Bail bond shall stand cancelled. Rule is made absolute. [ A. L. DAVE, J. ] gt