CR.A/58/1987 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 58 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD 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 ? ========================================= = STATE OF GUJARAT Versus HARESHBHAI T PARMAR AND OTHERS ========================================= =Appearance : MR SP HASURKAR, ADDL PUBLIC PROSECUTOR for the Appellant MR JP GADHAVI for Opponent No.1 MR VP THAKKER for Opponent No.2 NOTICE SERVED for Opponent(s) : 3, ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/58/1987 2/6 JUDGMENT 1. Against the judgment and order dated 31st May, 1985 passed by the Court of learned Chief Judicial Magistrate, Bharuch in Criminal Case No.14231 of 1984, whereby the learned Magistrate convicted both the accused for the offences punishable under Section 7(1) read with Section 16(1)(A)(i) and sentenced the accused No.1 simple imprisonment for six months and fine of Rs.2,000/- in default of payment of fine further simple imprisonment for three months and sentenced the accused No.2 simple imprisonment till rising of the Court and fine of Rs.1,000/- in default of payment of fine, simple imprisonment for one month; the accused preferred Criminal Appeal, being Criminal Appeal No.43 of 1985, before the District & Sessions Court, Bharuch. The learned Sessions Judge, vide judgment and order dated 6.10.1986, reversed the order of conviction and sentence and acquitted the accused of the offences charged against them. The learned Sessions Court found that mandatory procedure of sending specimen of sample as per the rules is not followed. The learned Additional Sessions Judge relied upon a decision reported in the matter of Food Inspector, Mangalore Corporation Vs. A.G. Suvarna, reported in 1985 Criminal Law Journal 709. It is observed in the said judgment that: “It therefore follows from the fact that the recitals in the report of the Public Analyst in so far as they relate to the condition of the seals and comparison of these seals in the prescribed form are in excess of the rule-making power, and same being in print form cannot be regarded as record of the notes of observations made by the Public Analyst or the officer authorized by him in this behalf. The recitals in his behalf are, therefore, neither by themselves substantive evidence, much less the evidence of the facts stated therein,” (emphasis supplied) CR.A/58/1987 3/6 JUDGMENT Relying upon the observations in the said judgment, the learned Additional Sessions Judge was pleased to observe that provisions of Rule 7(1) are mandatory and Public Analyst has to follow the same meticulously. Perusing the report on record regarding seals being intact were in written format form and therefore, actual comparison of seals was done by Public Analyst cannot be presumed. In the instant case, though Mr. I.M. Desai was Public Analyst, he himself has not carried any analysis and the person who has undertaken the analysis, whether in fact has compared the seals or not is not borne out from the record. On this ground, the learned Additional Sessions Judge was pleased to reverse the conviction of both the accused. 2. The learned Public Prosecutor contended that insistence of actual recording recitals regarding comparison of seals and specimen is contrary to the spirit of Section 114 of the Evidence Act. He relied upon observations of Hon'ble Supreme Court in the matter of State of Himachal Pradesh Vs. Narendrakumar and another reported in (2004)4 SCC 567. In the said judgment, the Hon'ble Supreme Court observed in paras 6 and 7 that: Para 6: “On a plain reading of Rule 18, what is required is that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent in a sealed packet (underlined for emphasis) separately to the Public Analyst. As indicated above, the word 'separately' refers to separate dispatch of articles indicated in Rule 17 and Rule 18. The expression “in a sealed packet” refers to both the copy of memorandum and the specimen impression of the seal. They are both required to be sent in a sealed packet. Plurality of packets is not provided for and obligated. What is required is that the copy of memorandum and specimen impression of the seal used CR.A/58/1987 4/6 JUDGMENT to seal the packet are to be sent in a sealed packet separately and not with the articles required to be sent under Rule 17.” Para 7: “This Court in N.Sukumaran Nair v. Food Inspector dealt with requirements of Rule 18 and in para 2 noted as follows: (SCC p.102) “It has vehemently been urged by Mr. V.A. Bobde, learned Senior Counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case, the view of the trial Court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW 1 was categoric that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But, if the word of the Food Inspector is not challenged in cross-examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted to. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid CR.A/58/1987 5/6 JUDGMENT ground.” (emphasis supplied). 3. We have gone through the judgment of the Hon'ble Supreme Court and considered the submissions made at the bar. The facts of the present case were in full agreement with the law laid down by the Apex Court. Thus, observations of the learned Sessions Judge while reversing the conviction were as such not justified in the light of above referred judgment. However, considering the facts of this case, the accused were running a small restaurant and samples were collected way back on 10.10.1984. They were convicted on 31.5.1985 and in the appeal, which they have preferred, they were acquitted by judgment of learned Sessions Judge on 6.9.1986. It is required to be noted that the learned Sessions Judge acquitted the accused considering the law which was obtaining at that time. 4. If the point of view of law governed the pending case on the day when it was in currency, then the accused legitimately expected that his case would be governed by those factors only. If due to lack in system, the things have gone to a level where perception of law got changed, small trader, like the respondents, would be hard pressed to suffer on the consequence, which is manifested subsequently. This Court feels that at a time of distance of 23 years, the accused should not be made to suffer for change of law. Though we do not approve the stand of the first Appellate Court of law, yet, we decline to interfere and disturb the acquittal and consequentially, the appeal is dismissed. Bail bond, if any, stands cancelled. Office is directed to send record and proceedings to the Trial Court concerned forthwith. (BHAGWATI PRASAD, J.) CR.A/58/1987 6/6 JUDGMENT (S.R.BRAHMBHATT, J.) omkar