CR.A/25519/1991 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 255 of 1991 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ========================================================= 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 VISHRAMDAS VIRUMAL - Opponent(s) ========================================================= Appearance : MR AJ DESAI APP for Appellant(s) : 1, MR HN JOSHI FOR MR PM THAKKAR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 10/12/2008 ORAL JUDGMENT 1. This appeal preferred by the State under Section 378 of the Code of Criminal Procedure, 1973 is directed against the judgment and order of acquittal dated 20.12.1990 passed by the learned Chief Judicial Magistrate, Bharuch in Criminal Case No.19418 of 1990 by which the CR.A/25519/1991 2/9 JUDGMENT learned Judge acquitted the respondent/original accused for the offence punishable under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”). 2. Being aggrieved by the said order, the State has preferred the present appeal contending inter alia that the order passed by the learned Judge is not based upon the evidence on record of the case and the learned Judge, while acquitting the respondent-accused, has not interpreted the oral deposition as well as documentary evidence in its proper perspective. It is submitted by learned A.P.P. Mr.A.J. Desai that the learned Judge has not interpreted the provisions contained in Section 7 read with Section 16 of Act, while acquitting the respondent. The learned Judge committed egregious error in holding that the bottle, in which the sample was taken by the complainant, was not clean and dry and, therefore, the breach of Rule 14 of the Prevention of Food Adulteration Rules, 1955 has been committed by the prosecution. The learned Judge, on appreciation of evidence on record of the case, ought to have held that the evidence adduced by the prosecution successfully established the case against the respondent beyond the reasonable doubt and convicted the CR.A/25519/1991 3/9 JUDGMENT respondent for the offence punishable under Section 7 read with Section 16 of the Act. The learned Judge ought to have taken into consideration catena of decisions rendered by the High Court as well as Apex Court and come to the conclusion that the prosecution has made out a case against the respondent for conviction and thereby, convicted the respondent for the offence punishable under Section 7 read with Section 16 of the Act. Thus, it is contended by the learned A.P.P. that the prosecution has, on the evidence on record of the case, successfully established the involvement of the respondent in the commission of offence punishable under Section 7 read with Section 16 of the Act and, therefore, the order passed by the learned Metropolitan Magistrate is required to be quashed and set aside and the respondent be convicted for the offence punishable under Section 7 read with Section 16 of the Act. 3. Learned advocate Mr.Joshi representing the respondent submitted that the learned Chief Judicial Magistrate has, after going through the entire gamut of oral deposition and documentary evidence on record, come to the conclusion that the procedure, as required under Rule 14 of the Prevention of Food Adulteration Rules, 1955, has not been followed. On bare perusal of Rule 14, it CR.A/25519/1991 4/9 JUDGMENT becomes clear that the sample of food for the purpose of analysis is required to be taken in clean dry bottles or 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. Thus, on perusal of Rule 14 of the Prevention of Food Adulteration Rules, 1955, a stringent procedure is prescribed and, as Rule 14 is a mandatory provision, compliance of the same is sine-qua-non. Thus, it is submitted by the learned advocate that the prosecution has miserably failed to establish that all the procedures, as prescribed under the Act as well as under the Rule, more particularly under Rule 14, were followed in a scrupulous manner and, therefore, the benefit of breach of Rule 14 is required to be given in favour of the respondent. The learned advocate submitted that considering the oral deposition and documentary evidence on record of the case, there is no infirmity or illegality committed by the learned Judge which would called for any interference by this Court in the appeal preferred under Section 378 of the Code of Criminal Procedure, 1973 and, therefore, the appeal is liable to fail and the same be dismissed. 4. I have heard learned A.P.P. Mr.A.J. Desai for CR.A/25519/1991 5/9 JUDGMENT the State and learned advocate Mr.H.N. Joshi for Mr.P.M. Thakkar for the respondent at length and in great detail. I have perused the evidence on record of the case as well as the reasoning given by the learned Judge while granting acquittal to the respondent for the offence punishable under Section 7 read with Section 16 of the Act. 5. On perusal of the oral deposition and the documentary evidence, it is evident that the incident in question took place as long back as on 25.01.1990. Food Inspector – Mr.N.M. Patel visited the shop of the respondent-accused and took sample of “Mungdal” for analysis. After obtaining the sample of “Mungdal”, it was kept in the bottle and necessary procedure was followed while sealing the bottle. Thereafter, the sample was sent to public analyst, Vadodara for the purpose of detail analysis. At the time of obtaining the sample of “Mungdal”, Panchnama was drawn and the panch-witnesses, who were present, have put their signatures below the same. The public analyst carried out the analysis on receipt of the sample of “Mungdal” and submitted a detailed report vide Exhs.29 and 30 on 17.02.1990. It is pertinent to note that necessary sanction was also granted to prosecute the respondent vide Exh.10. I have also perused the complaint produced vide Exh.1, the deposition CR.A/25519/1991 6/9 JUDGMENT adduced by PW-1-B.N. Shah-Food Inspector vide Exh.8, P.W.2-Narayanbhai Mangaldas Patel vide Exh.16, PW-3 – Babubhai Manilal vide Exh.35 and PW-4 Jagjivandas Girdharlal vide Exh.36 to the present case. Considering the same, it becomes clear that the procedure is prescribed in Rule 14 of the Prevention of Food Adulteration Rule, 1955 while obtaining the sample. It is stated therein that the sample of food for the purpose of analysis is required to be taken in clean dry bottles or 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. Thus, on perusal of the Rule 14, it becomes clear that the procedure prescribed therein is mandatory in nature and it is required to be followed in the scrupulous manner while obtaining the sample from the concerned party. This procedure was not followed while obtaining the sample of “Mungdal”. There are catena of decisions of this Court wherein, it is held that the procedure, as prescribed under Rule 14 of the Prevention of Food Adulteration Rules, 1955, is mandatory in nature and it is incumbent upon the prosecution to lead evidence in that regard. The judgments which are cited by the learned advocate for the respondent are as under:- CR.A/25519/1991 7/9 JUDGMENT 1.State of Gujarat V/s. Prajapati Amratlal Natvarlal reported in 2008(1) GLH 631. 2.State of Gujarat V/s. Doshi Chhabildas Shivlal and Ors. reported in 2007(2) GLH 637. 3.Ramesh G. Bendkar-Food Inspector V/s. Sehumal S. Virvani rendered in Criminal Appeal No.796 of 1991 on 28.02.2007 (Coram: S.R. Bhrahmbhatt, J.). 4.State of Gujarat V/s. Narottambhai Chaganlal Thakkar rendered in Criminal Appeal No.578 of 2004 on 08.02.2007 (Coram: S.R. Bhrahmbhatt, J.) and 5.State of Gujarat V/s. Barkatali Pyarali Hasanani rendered in Criminal Appeal No.509 of 2004 on 31.01.2007 (Coram: S.R. Brahmbhatt, J.). 6. Considering the ratio laid-down in the aforesaid judgments, I am of the view that when the mandatory procedure, as prescribed under Rule 14 of the Prevention of Food Adulteration Rules, 1955, is not followed in a scrupulous manner by the Food Inspector then the benefit of the same is required to be given to the respondent. Thus, without entering into the discussion about the other evidence on record of the case or the documentary evidence, since the breach is glaring in nature, the appeal is required to be dismissed only on the short point of not following the mandatory procedure, as prescribed under Rule 14 of the Prevention of Food Adulteration Rules, CR.A/25519/1991 8/9 JUDGMENT 1955 by the prosecution. 7. This is an acquittal appeal in which the Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly when the evidence has not inspired confidence of the learned Magistrate who had the opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Magistrate, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Magistrate and this Court is of the opinion that expression of general agreement with the view taken by the learned Magistrate would be sufficient in the facts of the case. This is so in view of the decisions rendered by the Supreme Court in the cases of (1) Girija Nandini Devi & Others Vs. Bijendra Narain Chaudhari, AIR 1967 SC 1124, and (2) State of Karnataka Vs. Hema Reddy and Another, AIR 1981 SC 1417. 8. For the foregoing reasons, the appeal is devoid of merit and the same is hereby dismissed. CR.A/25519/1991 9/9 JUDGMENT The order of acquittal passed by the learned trial Judge is hereby confirmed. The Muddamal is ordered to be destroyed in terms of order dated 20.12.1990 passed by the learned Chief Judicial Magistrate, Bharuch in Criminal Case No.19418 of 1990. (H.B.ANTANI, J.) Hitesh