CR.A/811/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 811 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 MOHANLAL RAVJIBHAI PATEL - Opponent(s) ========================================================= Appearance : MR UR BHATT, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR DK MODI for Opponent(s) : 1, MR MD MODI for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 25/11/2008 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 CR.A/811/1999 2/9 JUDGMENT legality and validity of the impugned judgment and order rendered by the Ld. Judicial Magistrate First Class, Manavadar [for short 'the Ld. Magistrate'] on 31/3/1999 in Criminal Case No. 453 of 1984. The Ld. Magistrate was pleased to acquit the respondent – accused from the charge of the offence punishable under section 16 read with 7 of the Prevention of Food Adulteration Act, 1954 [for short 'the Act']. 2. The prosecution case, in nut-shell, is as under :- 2.1. On 24/5/1984 Food Inspector Mr. K.J. Pandya visited the shop of the accused and collected the sample of chili powder. In presence of panchas, pachnama was drawn regarding the collection of the sample. As per the prosecution case, the sample was duly collected, packed and sealed. The sample was sent for analysis and the Public Analyst after performing the analysis reported that the chili powder was adulterated and it did not conform with the standards laid down under the Act as well as under the Prevention of Food Adulteration Rules, 1955 [for short 'the Rules']. After obtaining due sanction for launching prosecution against accused, Food Inspector Mr. Pandya filed private criminal complaint in the Court of the Ld. Magistrate. After recording necessary evidence for the purpose of framing charge, Ld. Magistrate framed charge against the accused regarding commission of offence punishable under section 16 CR.A/811/1999 3/9 JUDGMENT read with section 7 of the Act. The accused did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The deposition of Food Inspector Mr. Pandya was recorded at exh. 22. The testimonies of panchas Vallabhdas Khimajibhai and Jayantibhai Babubhai were recorded at exhs. 61 and 62 respectively. No more witnesses have been examined by the prosecution. During the course of deposition of Food Inspector, necessary documents were produced and proved by the prosecution. After the completion of the evidence, the Ld. Magistrate recorded further statement of the accused under section 313 of the Cr. P.C wherein the accused generally denied all the allegations levelled against him. 2.1. After appreciating the evidence on record and after considering the arguments advanced on behalf of both the sides, the Ld. Magistrate delivered the impugned judgment recording acquittal of the accused. Hence, being aggrieved and dissatisfied with the impugned judgment and order, the State of Gujarat preferred this appeal. 3. I have heard the submissions made by the Ld. APP Mr. Bhatt for the appellant – State and Ld. Advocate Mr. DK Modi for the respondent- accused and i have perused the relevant evidence adduced in this case. CR.A/811/1999 4/9 JUDGMENT 3.1. On behalf of the appellant, it was submitted that the impugned judgment and order delivered by the Ld. Magistrate is contrary to law and evidence on record and the Ld. Magistrate erred in not properly appreciating the evidence on record. It is submitted that the Food Inspector Mr. Pandya in his deposition on oath categorically submitted that while collecting the sample, he had undergone all the required formalities laid down under the Act and the Rules. That the sample was duly packed and sealed and was duly forwarded to the Public Analyst. That the report of the Public Analyst clearly reveals that the sample was adulterated. That therefor, there was no reason not to believe the deposition of the Food Inspector, who is an independent witness and a public servant. It is, therefore, submitted that the appeal may be allowed and the impugned judgment and order recording the acquittal of the accused be set aside and the respondent – accused be convicted for the offences charged against him and be appropriate sentenced in accordance with law. 3.2. On behalf of the respondent – accused, learned advocate Mr. Modi submitted that in the instant case, there is outright violation of rule 14 of the Rules, which lays down the mandatory requirements, required to be followed by the prosecution. It is submitted that as per rule 14, not CR.A/811/1999 5/9 JUDGMENT only the samples of food for the purpose of analysis are required to be taken in clean and dried bottles or jars, but they are required to be carefully sealed by the Food Inspector at the time of collecting the samples. It is submitted that in this case, considering the report of the Public Analyst, disclosing the details of the samples exh. 34, the Public Analyst has clearly mentioned in the report that “seals on container – nil.” That thus there is the glaring violation of the mandatory provision contained under rule 14 of the Rules. In support of the above submission, reliance was placed upon the case of State of Gujarat v/s. Suresh L Makwana decided on 6/11/1998 by this Court in Criminal Appeal No. 585 of 1989 and the case of State of Gujarat v/s. Shamji Velji Ghetiya decided on 9/9/1998 in Criminal Appeal No. 494 of 1989. Therefore, it is submitted that on this ground alone the appeal deserves to be dismissed. 4. Before the evidence adduced by the prosecution in this matter is re-appreciated and re-analyzed, it would be necessary to consider the principle established by the Hon'ble the Supreme Court regarding the acquittal appeal preferred under section 378 of the Cr. P.C. Th Hon'ble Apex Court in the case Chandrappa V/s. State of Karnataka reported in (2007) 4 S.C.C. 415, has observed as under :- (1)An appellate court has full power to review, reappreciate CR.A/811/1999 6/9 JUDGMENT 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 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.” 5. Keeping in mind the above principles laid down by the Hon'ble the Apex Court, in this case if the evidence adduced by the prosecution is re-appreciated, it would be necessary to consider the report of the Public Analyst pertaining to the details of sample exh. 34. In the CR.A/811/1999 7/9 JUDGMENT report regarding the seals on container, it is specifically stated as under : “Seals on container – nil.” 5.1. Therefore, considering the report itself, it becomes clear that the container did not contain any seal. In this respect, rule 14 of the Rules is required to be considered, which runs as under :- “14. Manner of sending sample for analysis.- Samples of food for the purpose of analysis shall 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.” 6. Thus, the bare reading of rule 14 would suggest that the samples of food for the purpose of analysis are required to be taken in clean and dry bottles or jars as well as such bottles or jars are required to be carefully sealed. In other words, there shall be seal on the container of the food article. 6.1. In Shamji Velji Ghetiya's case [supra] almost similar was the situation, wherein in the details of sample forwarded by the Public Analyst, it was reported that on the container, there was no seal. This Court observed that thus there was a breach of the mandatory requirements laid down and on this ground alone, it was observed that the CR.A/811/1999 8/9 JUDGMENT order of acquittal recorded by the Ld. Magistrate required no interference. 6.2. Almost similar was the situation in Suresh L Makwana's case [supra]. In para. 6 of said judgment, this Court observed that the evidence of the Food Inspector does not prove that the container in which the sample of turmeric powder was collected, was sealed. Even the report of the Public Analyst revealed that there was no seal on the container. It was, therefore, held that the Food Inspector had not followed the mandatory provisions of rule 14 and the accused deserved the acquittal. It was further observed that as there was glaring violation of mandatory provisions laid down under rule 14 of the Rules, it was not necessary to discuss the evidence of each witness in detail and on the ground of breach of mandatory requirements laid down under rule 14 of the Rules, this Court confirmed the order of acquittal and dismissed the appeal. 7. Considering the facts and circumstances of the instant case as well as the provisions contained in rule 14 of the Rules and the ratio laid down in the above referred rulings of this Court and Hon'ble Apex Court, I am of the opinion that in the instant case the mandatory requirements laid down under rule 14 of the Rules are not duly followed and are violated. Under such circumstances, there is no reason whatsoever to interfere with the impugned judgment and order rendered by the Ld. CR.A/811/1999 9/9 JUDGMENT Magistrate recording acquittal of the respondent – accused. The appeal, therefore, deserves to be dismissed. For the foregoing reasons, the appeal stands dismissed. ( J .C. UPADHYAYA, J. ) *Pansala.