CR.A/87319/1991 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 873 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 KANAIYALAL HARIJIVAN VIRADIYA - Opponent(s) ========================================================= Appearance : MR AJ DESAI, APP for Appellant(s) : 1, None for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 05/12/2008 ORAL JUDGMENT 1. Heard the learned APP, Shri A.J.Desai for the State. CR.A/87319/1991 2/5 JUDGMENT Though, served none appears for the respondent. 2. This appeal preferred under Section 378 of Criminal Procedure Code is directed against the judgment and order of acquittal passed by learned JMFC, Gondal in Criminal Case No.563 of 1984 dated 31.7.1991. 3. The complainant – Trilokkumar Babubhai Bhaskar visited the owner of Dipali Restaurant, namely, Kaniyalal Harjibhai Viradia on 8.6.1984 and after following due procedure as prescribed under the Prevention of Food Adulteration Act and the Rules made therein, took sample of the milk of buffalo and sent the same for detailed analysis at the laboratory in Rajkot. Thereafter, he launched the proceedings against the owner of the Dipali Restaurant as the milk was found to be adulterated. The charge against respondent was framed by the learned Magistrate and he pleaded not guilty to the charge levelled against him. The complainant gave the deposition vide Exh.14 and also produced the documentary evidence during the course of the deposition. The prosecution has examined other witnesses in order to prove the charge against the respondent. After going through the entire evidence on record of the case, the learned Judge acquitted the respondent for the offence punishable under Sections 6 and 16 of the Prevention of Food Adulteration Act, 1954. 4. Being aggrieved by the aforesaid order, the State has preferred the present appeal. The learned advocate submitted that the order of acquittal CR.A/87319/1991 3/5 JUDGMENT passed by the learned Judge is not based on evidence on record of the case and learned Magistrate has not appreciated the oral deposition adduced by the complainant and other evidence in its proper perspective while acquitting the respondent. The learned Judge has erred in interpreting the provisions contained in Sections 6 and 16 of the Prevention of Food Adulteration Act and Rules made thereunder. Therefore, learned APP submitted that the order passed by the learned Judge requires to be quashed and set aside and appropriate directions be issued convicting the respondent for the offence punishable under Sections 6 and 16 of the Prevention of Food Adulteration Act. 5. Though served, none appears for the respondent. 6. I have heard learned APP, Shri A.J.Desai for the State at length and in great detail. I have also perused the reasons assigned by the learned Judge while acquitting the respondent for the offence punishable under Sections 6 and 16 of the Prevention of Food Adulteration Act, 1954. On perusal of the deposition adduced by Trilokkumar Babubhai Bhaskar vide Exh.14, it becomes clear that the sanction was properly obtained before launching the prosecution but the notice which was sent to respondent Kaniyalal Harjivan Viradiya dated 31.5.1984 and the acknowledgment receipt does not bear the signature of the respondent. 7. Considering the aforesaid facts and circumstances of the case and taking into account the provisions CR.A/87319/1991 4/5 JUDGMENT contained in section 13(2) of the Prevention of Food Adulteration Act, 1954, I am of the view that the mandatory provisions contained in Section 13(2) of the Act was not complied with. When the respondent had not received the notice nor put any signature in the acknowledgment produced in the present case then one can safely presume that the notice might not have been received by the respondent. 8. In view of the aforesaid facts and circumstances of the case and since there was breach of the provisions of Section 13(2) of Prevention of Food Adulteration Act, the appeal requires to be dismissed only on the short ground of the breach of the mandatory provisions contained in the Prevention of Food Adulteration Act 13(2). Save and except, the aforesaid breach, the other provisions were complied with by the Authority while dealing with the sample which was taken for analysis and the subsequent procedure followed by Food Inspector as well as by the Authority. 9. 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. As this Court is in general agreement with the view expressed by the learned Magistrate, the Court does not think it necessary either to or to restate the reasons for CR.A/87319/1991 5/5 JUDGMENT 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. 10.For the foregoing reasons, appeal is dismissed only on the short ground of prosecution having committed breach of mandatory provisions contained in Section 13(2) of the Prevention of Food Adulteration Act. 11.For the foregoing reasons, as the appeal is devoid of merit the same is liable to fail and is hereby dismissed. (H.B.ANTANI, J.) ashish//