CR.A/112720/2003 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1127 of 2003 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 JITENDRAKUMAR DHIRAJLAL SOJITRA(VENDOR OF MANUFACTURING FIRM & 1 - Opponent(s) ========================================================= Appearance : MR AJ DESAI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR NIRAV C THAKKAR for Opponent(s) : 1, MR RK MISHRA for Opponent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 21/11/2008 ORAL JUDGMENT 1. This appeal preferred under Section 378 of Criminal CR.A/112720/2003 2/8 JUDGMENT Procedure Code is directed against the judgment and order of acquittal dated 10.6.2003 passed by learned Chief Judicial Magistrate, Nadiad in Criminal Case No.9 of 1997 by which the learned Magistrate had acquitted the respondents for the offence punishable under Sections 2(1A),(A)(M), Section 7(1), 7(5) as well as Section 16 of the Food Adulteration Act, 1954. 2. As per the prosecution case, the complainant-Food Inspector purchased 400 gms. of Groundnut Oil from the shop of the accused for the purpose of analysis. After following the due procedure, the said sample was sent for detailed analysis. From the analysis report, it is reveled that the sample does not confirm to the standards and it was in violation of various provisions of Food Adulteration Act. The complainant, Food Inspector, after obtaining written permission of the Local Health Authority filed a complaint in the Court of Chief Judicial Magistrate, Nadiad who at the conclusion of the trial by the judgment and order dated 10.6.2003 was pleased to acquit the accused for the offences with which they were charged. 3. The prosecution has examined following witness, it is as under: (1) PW-1, K.C.Kunbi at Exh.16. 4. The prosecution has also placed reliance on following documentary evidence, they are as under: 1. The extract of the Government Gazette in part-IV-A vide Exh.17. CR.A/112720/2003 3/8 JUDGMENT 2. The Certificate of the Training taken by the complainant is produced vide Exh.18. 3. The copy of the Gazette is produced vide Exh.19 and 20. 4. Copy of the Form No.VI is produced vide Exh.21. 5. The sample of the Groundnut Oil of 400 gms. is produced vide exh.22 and the receipt given by the complainant is also produced along with it. 6. The slip of the signature of the complainant, witness and the vendor produced vide Exh.23. 7. The panchnama of the seizure of the Groundnut Oil vide Exh.24. 8. The sample which was sent and the copy thereof is produced vide Exh.25. 9. The copy of the memorandum of Form No.VII vide Exh.26. 10.The receipt given by public analyst vide Exh.28. 11.The copy of the license vide Exh.31. 12.The report of the Analysis vide Exh.32. 13.The permission to file the complaint vide Exh.35. And the complaint vide Exh.36 etc. to the present case. 5. The learned Judge after considering the evidence on record of the case and the deposition adduced by Food Inspector vide Exh.16 held that as per the provisions contained in Section 11(c)(1), the complainant had not informed the Local Health Authority about sending the sample to public analyst for analysis and therefore, accused respondents are required to be acquitted. The learned Magistrate further held that the provisions contained in Section 11(c)(1) is mandatory and when the breach of CR.A/112720/2003 4/8 JUDGMENT the mandatory provision is committed, the benefit of same is required to be given to the respondents. The learned Judge is after going through the entire gamut of evidence on record of the case held that the complainant had not taken the sample by stirring the same therefore, the sample cannot be said to be representative sample and thus, acquitted the respondents. 6. Learned Judge further held that as there was breach of Rule 14 the prosecution has not proved the case in a conclusive manner, he acquitted both the respondents for the offence punishable under Sections 2(1A),(A)(M), Section 7(1), 7(5) as well as Section 16 of the Food Adulteration Act, 1954. Thus, learned Magistrate after going through the entire evidence on record of the case, acquitted both the respondents for the said offence. 7. The respondent-State being aggrieved by the aforesaid order has preferred the present appeal on the ground that the order passed by the learned Judge is contrary to the evidence on record of the case and requires to be set aside. The learned Judge ought to have held that the provisions contained in Section 11(c)(1) is directory and not mandatory. In the case of Himmatlal Motichand Shah V/s. The State of Gujarat reported in PFA Cases 1994(1) Page 40, it is held that all the procedural formalities were completed by the Food Inspector and therefore, there was no breach of the provisions of the Act. The learned Judge has miserably failed to consider the CR.A/112720/2003 5/8 JUDGMENT deposition adduced by the Food Inspector vide Exh.16 in its proper perspective while acquitting the respondents for the offence punishable under Sections 2(1A),(A)(M), Section 7(1), 7(5) as well as Section 16 of the Food Adulteration Act, 1954. Thus, it is submitted that the learned Judge has not taken into consideration the evidence on record of the case in proper perspective while acquitting the respondents for the said offences and therefore, it is a fit case to set aside the order passed by the learned Judge and convict the respondents. 8. The learned advocate for the respondents submitted that considering the reasoning assigned by the learned Judge the appellant-State has not made out the case for interference in the order of acquittal passed by the learned Judge. As the mandatory provisions were not followed by the complainant which is reflected in the deposition adduced vide Exh.16 the learned Judge has rightly acquitted the respondents. It is submitted that complainant had not followed the normal procedure or the formality by taking the sample and placing it in the vessel as provided under the provisions of the Act and Rules and therefore, the learned Judge has rightly held that as there was breach of provisions of Act and Rules, the case of the prosecution is liable to fail. 9. The learned advocate further submitted that as there was breach of mandatory provisions of Food Adulteration Act, the learned Judge has rightly acquitted the respondents and no interference is CR.A/112720/2003 6/8 JUDGMENT called for in an appeal preferred by the State. Even otherwise, the powers under Section 378 of Criminal Procedure Code are restricted in nature and unless the learned Judge has committed an error in acquitting the respondents no interference is called for. In view of the aforesaid facts and circumstances, it is submitted by the learned advocate that the appeal is devoid of merits and therefore, the same requires to be dismissed. 10.I have heard the learned APP, Shri A.J.Desai and learned advocates, Shri Nirav C.Thakkar and Shri R.K.Mishtra, for respondents at length and in great detail. I have also taken into consideration the entire gamut of oral deposition and the documentary evidence adduced by the prosecution. 11.This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 12.On re-appreciating and reevaluation on evidence on record of the case, the complainant, Food Inspector, as per the prosecution case purchased the 400 gms. Groundnut Oil from the shop of the accused for the purpose of analysis. After following due procedure, said sample was sent to public analyst for analysis. As per the report, the sample did not confirm to the standards and the provision as laid down under the prevention of Food Adulteration Act and therefore, the complainant after obtaining the necessary CR.A/112720/2003 7/8 JUDGMENT permission of the local health authority, filed the complaint in the Court of learned Chief Judicial Magistrate, Nadiad. The prosecution has examined the Food Inspector vide Exh.16 and produced the other documentary evidence in order to prove inextricable involvement of the respondents in the commission of offence. However, since the mandatory provision as contained in Food Adulteration Act is not complied with as per the discussion of learned trial Judge, I am of the view that there is no need to reiterate or repeat the versions given by the complainant in his deposition vide Exh.16 or other documentary evidence on which the reliance is placed by the prosecution. 13. 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 CR.A/112720/2003 8/8 JUDGMENT 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. 14. For the foregoing reasons, as there is no substance in the appeal, the appeal is liable to fail and therefore, the same is dismissed. (H.B.ANTANI, J.) ashish//