CR.A/438/1996 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 438 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE J.C.UPADHYAYA ====================================== 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 ? ====================================== STATE OF GUJARAT - Appellant(s) Versus LAGHADHIRBHAI VAGHJIBHAI PRAJAPATI - Opponent(s) ====================================== Appearance : MR MR MENGDE A.P.P. for Appellant(s) : 1, MR DK MODI for Opponent(s) : 1, MR MD MODI for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 12/03/2008 ORAL JUDGMENT The appellant – State of Gujarat preferred this appeal under CR.A/438/1996 2/11 JUDGMENT Section 378 of Code of Criminal Procedure, 1973 ('Code', for short) challenging the legality and validity of the impugned judgment and order delivered by the learned Judicial Magistrate First Class, Kalol ('ld.Magistrte', for short) dated 22.2.1996 in Criminal Case No.218 of 1991. The ld.Magistrate by virtue of the impugned judgment and order, acquitted the respondent-accused for the offence punishable under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act, 1954 ('Act', for short). 2. The brief facts giving rise to the prosecution case are as under:- 2.1 It is the case of the prosecution that on 14.2.1991 at about 5.30 p.m., Food Inspector Mr.Sumanchandra Trivedi along with the Sanitary Superintendent Kantilal Hargovinddas Trivedi visited the shop of the respondent-accused and after disclosing their identity to the accused, collected sample of groundnut oil approximately 400 grams in weight and divided the sample in 3 equal parts, and collected the same in 3 different bottles, and paid the price of the same to the accused. It is the case of the prosecution that while collecting the sample, the prescribed procedure was duly followed, and thereafter, each bottle containing the part of the sample was duly packed and sealed in accordance with the procedure prescribed under the Act. One of the samples was sent for analysis and the report of the Public Analyst was received stating that the sample does not confirm with the standard laid down in the Act. The two bottles containing the samples were sent to Local Health Authority. The Food Inspector thereafter sought for the sanction for launching prosecution against the accused under the Act from the Local Health Authority and in turn, the Local Health Authority granted sanction for launching the prosecution. Accordingly, the Food Inspector Mr.Sumanchandra Trivedi filed a private complaint regarding the offence CR.A/438/1996 3/11 JUDGMENT under the Act in the Court of ld.Magistrate. 2.2 Since the accused did not plead guilty, the ld.Magistrate recorded the oral evidence adduced by the prosecution. The deposition of Food Inspector Mr.Sumanchandra Trivedi was recorded at exh.14. During the course of his deposition, relevant documentary evidence was produced and proved. The deposition of panch witness Sanjay Ratilal at exh.44 was recorded and he was declared hostile witness by the prosecution. The deposition of Local Health Authority Mr.Anil Tulsidas was recorded at exh.45 and the deposition of Kantilal Hargovinddas, who was sanitary superintendent at the relevant time was recorded at exh.52. After the completion of the evidence adduced by the prosecution, the ld.Magistrate recorded further statement of the accused u/s.313 of the Code wherein the accused denied all the allegations leveled against him by the prosecution. After appreciating the evidence on record and hearing arguments advanced on behalf of both the parties, the ld.Magistrate delivered the impugned judgment and order, whereby he was pleased to acquit the accused. 3. On behalf of the appellant – State, learned A.P.P. Mr. M.R. Mengde submitted that the judgment and order delivered by the ld.Magistrate is contrary to law and facts on record. That the prosecution established beyond reasonable doubt that the sample collected from the shop of the accused was found to be adulterated. That the complainant Food Inspector – Mr.Sumanchandra Trivedi and the Sanitary Superintendent Kantilal Hargovinddas Trivedi who had accompanied the complainant at the time when the sample was collected clearly deposed in their depositions regarding the manner in which the sample was collected and manner in which it was packed and sealed and forwarded to the Public Analyst and the Local Health Authority. That CR.A/438/1996 4/11 JUDGMENT both these witnesses were public servants and there was no reason whatsoever to discard their depositions. That thus, the ld.Magistrate failed in properly appreciating in its true perspective the evidence of the prosecution witnesses. That the ld.Magistrate placed much emphasis regarding not mentioning certain details in the complaint of the Food Inspector. That it is now well settled that in the complaint, details regarding the offence are not required to be mentioned. Therefore, the ld.Magistrate erred in comparing the depositions of Food Inspector and Sanitary Superintendent with the complaint, and observing that certain details which these witnesses stated in their depositions are not referred in the complaint. That all the required mandatory requirements were duly complied with. That merely because the panch witness turned hostile, that also cannot be a sole ground for acquitting the accused from the serious offence under the Act. That the ld.Magistrate erred in holding that the depositions of the complainant Food Inspector and Sanitary Superintendent are contradictory. That in fact, no material contradictions are there in their depositions. Therefore, it was submitted that the appeal be allowed, and the impugned judgment and order delivered by the ld.Magistrate be set-aside and the respondent – accused be appropriately punished for offence punishable u/s.16(1) r/w.Section 7 of the Act, in accordance with law. 4. As against this, learned advocate Mr. D.K. Modi for the respondent – accused during the course of his argument, supporting the impugned judgment and order delivered by the ld.Magistrate submitted that there are violations of mandatory requirements laid down under the Act as well as under the Prevention of Food Adulteration Rules, 1955 ('Rules', for short). It was submitted that the mandatory requirements laid down under Rule 14 of the Rules and Sections 11 and 20 of the Act have not been complied with, and the consequence of the non-complying such CR.A/438/1996 5/11 JUDGMENT mandatory requirement would be the acquittal of the accused. I need not refer here at length the entire arguments advanced by ld.counsel Mr. Modi for the respondent – accused and at the time of relevant discussion in this judgment, the same shall be discussed. Ld.counsel Mr. Modi for the respondent – accused relied upon certain Rulings which shall also be discussed in this judgment at its appropriate time. Therefore, it is submitted that the appeal be dismissed. 5. Before I appreciate or re-appreciate the evidence adduced by the prosecution in this case, it would be necessary to consider the following principles established by Honourable Supreme Court in connection with the acquittal appeal preferred u/s.378 of the Code in the case of of Chandrappa and others Vs. State of Karnataka reported in (2007)4 SCC 415: (1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3)Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4)An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to CR.A/438/1996 6/11 JUDGMENT him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5)If two reasonable views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not be disturbed by the appellate court.” 6. Keeping in mind the above principles established by the Honourable Supreme Court and appreciating the evidence on record, and simultaneously considering the impugned judgment delivered by the ld.Magistrate, the ld.Magistrate observed that certain details which the Food Inspector Mr.Trivedi in his deposition and Sanitary Superintendent Kantilal Hargovinddas in his deposition deposed have not been referred in the complaint filed by the Food Inspector. In the impugned judgment what are those details which are though deposed by these witnesses are not finding place in the complaint have been enumerated by the ld.Magistrate. However, I fully agree with the arguments advanced by the ld.A.P.P. Mr. Mengde that all these details are not required to be mentioned in the complaint. Under such circumstances, whether particular detail though deposed by the complainant is finding place in the complaint or not can never be a relevant fact much less a ground for acquitting the accused. 7. However, on behalf of the respondent-accused, ld.counsel Mr. Modi submitted that in the instant case, there is violation of Rule 14 of the Rules. Rule 14 pertains to manner of sending sample for analysis. It reads as under:- “14. Manner of sending samples for analysis:- Sample of food for the purpose of analysis shall be taken in clean dry bottles or CR.A/438/1996 7/11 JUDGMENT jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.” Now, considering the provisions contained in Rule 14 and appreciating the evidence on record, in the present case, it becomes clear that neither the Food Inspector Mr. Trivedi nor the panch Sanjay and nor the Sanitary Superintendent Kantilal Hargovinddas in their depositions clarified as to when, how and who cleaned the bottles, wherein the sample of groundnut oil was alleged to have been collected. It was submitted that mere oral statement of Food Inspector that the sample was collected in clean, dry bottles will not be termed as sufficient compliance of the mandatory requirements laid down under the Rules. In support thereof, the reliance has been placed upon a case of State of Gujarat Vs. Babu Lavji Jalia reported in 1997(2) FAC 26, wherein this High Court held that Rule 14 of the Rules lays down mandatory requirements and it is the duty of the prosecution to prove by leading positive evidence that bottles were cleaned and dried before the sample was taken by the Food Inspector. Reliance was also placed upon the judgment delivered by this court in the case of State of Gujarat Vs. Sohanlal Trikamchand Shah reported in 2002(2) FAC 156, wherein almost identical principle was laid down as laid down in the above referred case. Reliance was also placed upon the case of State of Gujarat Vs. B.P. Prajapati reported in 2007(2) FAC 310, wherein referring to Rule 14 of the Rules in para-9 of said judgment, it was observed that “in fact Rule 14 makes it mandatory upon the prosecution to prove its due compliance by leading cogent and positive evidence. This Court is unable to agree with the submissions of Shri Patel that when the Food Inspector has given his evidence that cleaned bottles were used, that itself is sufficient for establishing due compliance with provisions of Rule 14. Mere statement with regard to using clean bottles for collecting sample is CR.A/438/1996 8/11 JUDGMENT not sufficient, as this court has held time and again”. Under such circumstances, even mere statement of the Food Inspector that the sample was collected in clean and dry bottle, would not amount to sufficient compliance of Rule 14. It should be proved by leading cogent and positive evidence. 8. Ld.counsel Mr. Modi for the respondent – accused further submitted that perusing the evidence on record, it becomes clear that at the time of visiting the shop of the accused, the Food Inspector had carried with him the utensil called “tapeli”, and the sample of groundnut oil from a tin containing the oil was collected with the help of “pali” an aluminium container or small utensil, which normally is used to take out loose edible oil from main container. It is submitted that even so far as the said “tapeli” and “pali” are concerned, there is no oral evidence worth the name that the same were clean or dry, much less any positive evidence in this respect. Considering the deposition of Food Inspector Mr. Sumanchandra Trivedi and Sanitary Superintendent Kantilal Hargovinddas, so far as “tapeli” and “pali” are concerned, there is no oral evidence adduced by them that the said utensils were clean and dry. Reliance was placed upon the case of Khengar Dhana Rabari Vs. State of Gujarat decided on 8.2.1979 in Criminal Revision Application No.447 of 1978 by this Court, wherein the sample of milk was collected by the Food Inspector and before dividing the sample into 3 different bottles, the milk was collected in a tumbler and this Court observed that the Food Inspector in his entire deposition, nowhere mentioned that the container i.e., tumbler in which the sample was taken, was clean and dry. Reliance was placed upon the case of State of Gujarat Vs. Laljibhai Ishwarbhai Zala decided on 15.2.2007 in Criminal Appeal No.841 of 2003, wherein the sample of edible oil was collected by the Food Inspector with the help of “pali”, and it was observed that there was no CR.A/438/1996 9/11 JUDGMENT evidence whatsoever that the same was clean, prior to taking out the sample from the main container. The ld.counsel Mr. Modi for the respondent-accused relied upon the case of State of Maharashtra Vs. Vinayak Mahadeorao Waze reported in 2005 Cri.L.J. 2100, wherein the sample of groundnut oil was collected by the Food Inspector and was divided into 3 glass bottles. Bombay High Court observing that the bottles in which the samples were collected, were not cleaned and dried in presence of accused and panch wintesses and held that the sample cannot be said to have been properly collected. 9. Considering the principles laid down in the above referred Rulings, and the evidence on record, in our case, it becomes clear that the requirements laid down in Rule 14 of the Rules are held to be mandatory and non-compliance of the same would amount to acquittal of the accused from the offence charged under the Act. In the case on hand, the non-compliance of the requirements laid down under Rule 14 of the Rules is clear. 10. Ld.counsel Mr. Modi for the respondent – accused submitted that before collecting the sample of groundnut oil, the Food Inspector was required to stir the contents of the tin containing the groundnut oil, so as to make the sample a homogeneous one. That in the instant case, so far as the deposition of Food Inspector is concerned, he nowhere stated that before collecting the sample of groundnut oil, the contents of the tin containing the oil were stirred. However, in his cross-examination, he stated that he had shaken the tin itself containing the oil. It was submitted that the requirements were to stir the contents of the tin i.e. the groundnut oil. In this respect, the reliance was placed upon the case of State of Gujarat Vs. Gamnaji Bhuraji Prajapati decided on 4.7.2007 in Criminal Appeal No.1883 of 2004, perusing the facts of CR.A/438/1996 10/11 JUDGMENT the said case, in that case the Food Inspector had collected the sample of groundnut oil from the shop of the accused. In paragraph – 10 of the said judgment, this court observed that nowhere it is stated either by the Food Inspector or by other witnesses that the sample which was taken was properly stirred and was representing the entire quantity. In the case of Food Inspector Vs. Padakanti Bhupathi reported in 2005(1) FAC 16, the Andhra Pradesh High Court in the case, wherein the Food Inspector had collected the sample of groundnut oil observed that during the course of deposition of Food Inspector, he has not deposed that the oil contained in the tin was thoroughly stirred before taking samples and in absence of stirring, the oil contained in the tin before taking samples, the very manner in which the samples had been taken had caused prejudice to the accused. Identical principles were laid down by Punjab and Haryana High Court in the case of Suresh Kumar Vs. State of Haryana reported in 1991(2)_FAC 98. 11. Considering the principles laid down in the above Rulings and coming back to the evidence adduced in the case on hand, as stated above, neither the Food Inspector, nor the Panch witness, nor Sanitary Superintendent Kantilal Hargovinddas stated that the contents of the tin containing the groundnut oil were thoroughly stirred before taking the sample. 12. Furthermore, considering the Public Analyst report, exh.25, after referring the description regarding the analysis of the sample and giving the final findings about the resolution of the analysis, the Public Analyst referred as under:- “and am of the opinion that the sampe No........ of G.N. Oil....... conforms/does not conform to the standards and provisoins laid down under Prevention of Food Adulteration Rules, 1955” CR.A/438/1996 11/11 JUDGMENT 13. Thus, in the report nowhere it is stated that the sample of which No. was analysed. Moreover, whether the sample conforms or does not conform is not made clear in the report by erasing atleast non-applicable part of the report. Likewise, in the forwarding letter addressed by the Public Analyst to the Food Inspector exh.24, in column No.2, what was the exact nature of slip of Local Health Authority have not been clearly mentioned by erasing non-applicable part of remarks – paragraph – 2. It has come in evidence that on the date on which the Food Inspector collected the sample from the shop of the accused, on the same date the Food Inspector had collected in all 3 samples of groundnut oil including that of the accused. It has come in evidence that the Food Inspector forwarded for analysis all the 3 samples on the same day to Public Analyst. When such is the situation, the identity of the sample of the groundnut oil collected from the shop of accused carried much importance. Whether the Public Analyst analyzed the very sample which was collected from the shop of the accused, becomes a vital question, and as stated above, considering the report of the Public Analyst, along with the forwarding letter, the link cannot be said to have been satisfactorily established. 14. For the foregoing reasons discussed in detail in this judgment, I am of the opinion that the ultimate conclusion arrived at by the ld.Magistrate in acquitting the respondent-accused for the offence punishable u/s.16(1) r/w. Section 7 of the Act, does not require any interference. In the result, the appeal deserves to be dismissed. 15. The appeal is hereby dismissed. (J.C. Upadhyaya, J.) binoy