CR.A/117219/1986 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1172 of 1986 With CRIMINAL APPEAL No. 1173 of 1986 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 JAYANTILAL NARANDAS DHANDHUKIA AND ANOTHER ========================================= =Appearance : MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MS CHETNA SHAH for HL PATEL Advocates for the Opponents ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/08/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Criminal Appeal No. 1172 of 1986 has been filed by the State of Gujarat challenging the judgment and order dated CR.A/117219/1986 2/4 JUDGMENT 30.06.1986 passed by the Sessions Judge, Bhavnagar in Criminal Appeal No. 12 of 1985, whereby the Sessions Judge in appeal set aside the judgment and order of acquittal dated 30.01.1985 passed by the Judicial Magistrate First Class, Botad in Criminal Case No. 913 of 1983 and convicted the respondent accused for the offence under Sections 2(1) and 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954. Criminal Appeal No. 1173 of 1986 has been filed by the State of Gujarat challenging the judgment and order dated 30.06.1986 passed by the Sessions Judge, Bhavnagar in Criminal Appeal No. 10 of 1985, whereby the Sessions Judge in appeal set aside the judgment and order of acquittal dated 21.01.1985 passed by the Judicial Magistrate First Class, Botad in Criminal Case No. 910 of 1983 and convicted the respondent accused for the offence under Sections 2(1) and 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954. In Criminal Case No. 910 of 1983, the respondent Jayantilal Narayandas Dhandhukia was found selling adulterated ground-nut oil and in Criminal Case No. 913 of 1983, the respondent Prabhuji Hirjibhai Patel was found selling milk which did not meet the prescribed standard. Though several arguments have been advanced on both sides, we propose to dispose of both the appeals on a short point which is common in both cases. In both the cases, a submission has been made on behalf of the accused with regard to violation of Rule 9(A) of the Prevention of Food Adulteration Rules, 1955. Rule : 9(A) of the Rules reads as under : CR.A/117219/1986 3/4 JUDGMENT "9.A. Local (Health) Authority to send report to person concerned - The Local (Health) Authority shall (within a period of ten days) after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A of the Act." The aforesaid bracketed portion containing the words "within a period of 10 days" replaced the word "immediately" which was appearing prior to its amendment by Notification No. GSR 500(E), dated 9-7-1984 (w.e.f. 9-7-1984). It is this word "immediately" which would be required to be taken into consideration in so far as this matter is concerned. The said Rule provides that the Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by Registered Post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A of the Act. A perusal of the record of Criminal Case No. 910 of 1983 CR.A/117219/1986 4/4 JUDGMENT shows that there is no signature of the accused on the copy alleged to have served upon him by the Inspector. In Criminal Case No. 913 of 1983, the notice notice as contemplated under Rule 9-A was received by the accused on 27.12.1983, admittedly beyond the period of 10 days. Thus, there is a clear breach of Rule 9-A of the Rules in both the cases. In Chimanlal Govindji Thakker vs. State of Gujarat reported in (1997) 1 GLR 458, a learned Single Judge of this Hon’ble Court observing that there has been a violation of Rule 9-A of the Rules allowed the appeal of the accused and acquitted him of the charges. We see no reason to take a different view. Although an argument was advanced on behalf of the State that the said Rule is only directory and not mandatory and that no prejudice having been caused to the accused, they cannot be acquitted only on the ground of non-compliance of said provision. Whether prejudice has been caused or not would depend upon the facts of each case. But considering the enormous lapse of time, almost 25 years, since the date of incident, we are not inclined to entertain the said submission. The appeals filed by the State are accordingly dismissed. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar