CR.A/817/1999 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 817 of 1999 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 MUKESHKUMAR RATILAL MODI - Opponent(s) ========================================================= Appearance : MR KC SHAH, APP for Appellant(s) : 1, MR DK MODI – amicus curie for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 26/11/2008 ORAL JUDGMENT The State of Gujarat preferred this appeal under section 378 of the Code of Criminal Procedure [for short 'Cr. P.C'] challenging the legality and validity of the impugned judgment and order rendered by the CR.A/817/1999 2/8 JUDGMENT Ld. Judicial Magistrate First Class, Deesa [for short 'the Ld. Magistrate'] on 14/5/1999 in Criminal Case No. 562 of 1998. By virtue of the impugned judgment, the Ld. Magistrate was pleased to acquit the respondent – accused from the charge of the offence punishable under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 [for short 'the Act']. 2. The case of the prosecution, in nut-shell, is as under :- 2.1. Mr. K C Kumbi, Food Inspector visited the shop of the accused on 13/9/1997 at about 16.00 hours. In presence of panchas, the sample of Ghee was collected by the Food Inspector. The sample was duly packed and sealed and was sent to Public Analyst for analysis. The report of the Public Analyst revealed that the sample of Ghee was adulterated and did not conform with the standards laid down under the Act. After obtaining due sanction for launching prosecution against respondent – accused, complaint was filed in the Court of the Ld. Magistrate against the respondent – accused. 2.2. The Ld. Magistrate framed charge against the accused at exh. 29, to which the accused did not plead guilty and claimed to be tried and, therefore, the prosecution adduced its oral and documentary evidence. The prosecution examined Food Inspector Mr. K C Kumbi at CR.A/817/1999 3/8 JUDGMENT exh. 6. During the course of deposition of Food Inspector, relevant documentary evidence was produced and proved by the prosecution. Panch witness Rajeshkumar Thakkar was examined at exh. 31. No more witnesses were examined. 2.3. The Ld. Magistrate, after appreciating the evidence on record and after considering the arguments advanced on behalf of both the sides, rendered the impugned judgment and order recording the acquittal of the respondent – accused. Feeling aggrieved and dissatisfied with the impugned judgment and order, the State of Gujarat preferred this appeal. 3. On behalf of the appellant-State, Ld. APP Mr. Shah submitted that the Ld. Magistrate has not properly appreciated the evidence on record. The testimony of Food Inspector Mr. Kumbi, who is independent public servant, should not have been discarded by the Ld. Magistrate. That the Ld. Magistrate erred in arriving at the conclusion that certain mandatory requirements laid down under the Act have not been complied with. Therefore, it is submitted that the appeal be allowed and the impugned judgment and order rendered by the Ld. Magistrate in recording acquittal of the respondent – accused be set aside and the respondent – accused be convicted for the offence charged against him and he be awarded appropriate sentence in accordance with law. CR.A/817/1999 4/8 JUDGMENT 3.1. Learned advocate Mr. D K Modi as amicus curie on behalf of the respondent – accused, submitted that in the instant case, the Food Inspector collected the sample of Ghee while it was in a solid state. Considering the entire oral and documentary evidence adduced by the prosecution, there is no evidence to the effect that before taking the sample of Ghee, it was heated or boiled and thereafter it was stirred. It is submitted that in the instant case before collecting the sample of Ghee, it was necessary to boil it and to convert it into liquid form and then to stir it so as to make the sample collected from it a homogeneous one. In support of this submission, reliance was placed upon a decision rendered in the case of Laxmichand Bhailal Thakker v/s. State of Gujarat reported in 1995 (2) G.L.R. p. 1528. Reliance was also placed upon a decision rendered in the case of State of Gujarat v/s. M/s. HarkhchandDahyabhai decided by this Court on 16/11/2000 in Criminal Appeal No. 670 of 1990. Therefore, it is submitted that the appeal deserves dismissal. 4. I have gone through the record and proceedings of the case. The testimony of Food Inspector Mr. Kumbi examined at exh. 6 suggests that the sample of Ghee was collected by him from a tin containing it. In his cross-examination on behalf of the accused, he stated that the Ghee CR.A/817/1999 5/8 JUDGMENT was in a semi-liquid form. He admitted the fact that before collecting a sample of any food article, the stirring is required and that it is required to be made homogeneous. Even considering the panchnama exh. 11, there is nothing that before taking the sample of Ghee from the container containing the Ghee, it was heated or boiled and thereafter stirred and then the sample was collected. 4.1. In this connection, perusing the impugned judgment delivered by the Ld. Magistrate, it appears that the above aspect of the matter was elaborately considered and relying upon Laxmichand Bhailal Thakker's case [supra], Ld. Magistrate came to the conclusion that in the instant case the Food Inspector before taking the sample of Ghee did not boil it and thereafter did not stir it and, therefore, the sample does not become a homogeneous one. 5. Considering Laxmichand Bhailal Thakker's case [supra], a sample of Ghee was collected, but before collecting the sample it was not heated and thereafter was not stirred. In para. 7 of the said judgment, it was observed as under :- “7. In view of the facts of the case, I am of the opinion that the entire quality of ghee should have been heated or boiled and that the contents of the tumbler wherefrom the CR.A/817/1999 6/8 JUDGMENT sample of ghee was collected should have been thoroughly stirred. This becomes all the more necessary as there is prescribed limit for melting and if is above the maximum prescribed, the sample would likely to be adulterated. It would therefore, be necessary to have quantity of ghee homogeneous in character by melting and stirred as well.” 5.1. Considering M/s. Harkhchand Dahyabhai's case [supra], almost identical was the situation. In that case also, the sample of Ghee was collected. In para. 5 of the said judgment, this Court observed as under:- “5. The evidence of complainant does not prove that before taking sample he had boiled the quantity of the ghee which was stored in a vessel. The evidence of complainant also does not prove that he had properly stirred the ghee to make it homogeneous. This High Court, in Criminal Revision Application No. 2420 of 1985 decided on 27th April 1995 reported in 1996 (2) Prevention of Food Adulteration Cases, Page 77, has laid down the principle that if the entire quantity of ghee is not heated or boiled and the said quantity is not stirred so as to make the sample homogeneous and if the sample is taken without following the above procedure, the conviction of the vendor cannot be sustained. In my view, the evidence led by the complainant did not establish that he had boiled the quantity of ghee and CR.A/817/1999 7/8 JUDGMENT after it was melted and after churning the same the samples in three bottles were taken. On this ground also, the order of acquittal recorded by the learned Magistrate deserves to be confirmed.” 6. Considering the above discussions, it becomes clear that in the instant case, the ratio laid down by this Court in the above referred two rulings, shall clearly apply. In the impugned judgment along with other discussions and appreciating the entire oral and documentary evidence on record, one of the points which the Ld. Magistrate observed in the impugned judgment was, not heating the Ghee and thereafter, stirring it before taking the sample and there is nothing to come to the conclusion that in the impugned judgment, the Ld. Magistrate committed any illegality or irregularity in arriving at such conclusion. In the result, it would not be necessary for this Court in this appeal to discuss and appreciate the depositions of the two witnesses and to discuss and appreciate at length the documentary evidence produced in this case. Suffice it to say that in light of the above discussions, there is no reason to interfere with the order of acquittal recorded by the Ld. Magistrate. 7. Last but not the least, a note is taken for the valuable service rendered by learned advocate Mr. D K Modi, who appeared as amicus CR.A/817/1999 8/8 JUDGMENT curie in this matter for rendering valuable assistance to this Court. 8. In the result, the appeal deserves to be dismissed and it stands dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.