CR.A/864/1997 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 864 of 1997 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 ? ========================================================= ASHWIN H CHARYA - Appellant(s) Versus CHUNILAL VALJIBHAI & 2 - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 2. MR DK MODI for Opponent(s) : 1, MR MD MODI for Opponent(s) : 1, MR UR BHATT, APP for Opponent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 28/11/2008 ORAL JUDGMENT 1. The challenge in this appeal is to the judgment and order rendered by learned Judicial Magistrate First Class (Municipal), Rajkot in Criminal Case No.664 of 1986. By virtue of the impugned judgment and order rendered on dated CR.A/864/1997 2/8 JUDGMENT 8.1.1997, the learned Magistrate was pleased to record acquittal of both the respondents No.1 and 2 herein, who were originally accused Nos.1 and 2 in the aforesaid matter for the commission of offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act ('Act', for short). 2. The brief facts of the prosecution case are as under:- 2.1 Mr.A.H.Acharya, who was Food Inspector, serving in Rajkot Municipal Corporation visited the shop of the original accused No.2 Khodabhai Virjibhai named Somnath Traders on dated 16.7.1986. It was found that groundnut oil tins labelled as 'Tasty' were stored in the shop, for the purpose of sale. The Food Inspector in presence of Panch, collected the sample of groundnut oil from a packed tin. The sample was duly packed and sealed. The same was sent for chemical analysis. The report of the Public Analyst revealed that the sample was adulterated and did not confirm to the standards laid down under the Act and the Rules. Since the oil tin was packed and sealed, and having bills in possession of the accused No.2 Khodabhai regarding the purchase of oil tins, it was revealed that the manufacturer was the original accused No.1 Chunilal Valjibhai of Vimal Industries, Junagadh. After obtaining due sanction for the purpose of launching the prosecution, the Food Inspector CR.A/864/1997 3/8 JUDGMENT Mr.A.H.Acharya filed criminal complaint in the Court of learned Magistrate against both the accused persons. 2.2 The learned Magistrate framed charge against both the accused persons for the commission of offence punishable under Section 16 read with Section 7 of the Act, to which both of them did not plead guilty and claimed to be tried. In the result, the prosecution adduced its oral and documentary evidence. The testimony of Food Inspector Mr.Acharya was recorded at Exh.15. During the course of his deposition, relevant documentary evidence was produced on behalf of the prosecution. The testimonies of witnesses Akbar Usman, Exh.198 and Madhavjibhai Vora, Exh.199 were recorded. No more witnesses were examined by the prosecution. After the completion of the evidence adduced by the prosecution, the learned Magistrate recorded further statements of both the accused under Section 313 of the Code of Criminal Procedure ('Cr.P.C.', for short), to which they denied generally all the allegations levelled against them. 2.3 After considering the evidence on record and the submissions advanced on behalf of both the sides, learned Magistrate by virtue of the impugned judgment and order, recorded acquittal of both the accused. Feeling aggrieved by the order of acquittal, the original complainant preferred this appeal under Section 378 of the Cr.P.C. 3. Learned advocate Mr.Buddhbhatti for the CR.A/864/1997 4/8 JUDGMENT appellant – original complainant during the course of his arguments submitted that the impugned judgment and order rendered by the learned Magistrate is contrary to law and evidence on record. That the learned Magistrate erred in not properly appreciating the testimony of the Food Inspector, who is independent witness and is a responsible public servant. That considering his deposition, it clearly transpires that while collecting the sample, while packing it, and while sealing it, due care was taken by him and there was no violation of any mandatory provisions laid down under the Act or under the Rules. That the testimony of the Food Inspector is duly supported by the deposition of witness Akbar Usmanbhai and the Panch witness. That the prosecution produced required documentary evidence in support of the oral evidence. Therefore, it is submitted that the appeal be allowed and the impugned order recording acquittal of the respondents No.1 and 2 rendered by the learned Magistrate be set- aside and both the accused persons be convicted for the offence charged against them and they be appropriately sentenced for the commission of the offence. 4. On behalf of the respondents No.1 and 2 (the original accused persons) learned advocate Mr.Modi submitted that even as per the case of the Food Inspector, the sample of groundnut oil CR.A/864/1997 5/8 JUDGMENT was collected from the packed and sealed oil tin. Necessary documents regarding the purchase were shown to the Food Inspector. It is submitted that in the impugned judgment relying upon the provisions contained under Sub-rule 2 of Section 19 of the Act, the learned Magistrate acquitted the respondent No.2 – original accused No.2 Khodabhai Virjibhai. It is further submitted that it has also come in evidence that at the time of collection of the sample from the oil tin, the contents of the tin were not at all stirred to make the sample representative and homogeneous one. It is further submitted that so far as the respondent No.1 – original accused No.1 Chunilal Valjibhai is concerned, the Food Inspector – complainant miserably failed to establish that at the relevant time, he was either proprietor or partner or in any respect connected to Vimal Industries, Junagadh, who is said to have produced and sold the tins containing groundnut oil to the accused No.2 Khodabhai Virjibhai. It is submitted that over and above this, there are other defects in the prosecution case, whereby the mandatory requirements laid down under the Act and the Rules have been infringed, but the defects which are shown in the submission, emerging from the prosecution case, are such which will go to the root of the prosecution case, and therefore, it is submitted that the appeal be dismissed. CR.A/864/1997 6/8 JUDGMENT 5. On behalf of the respondent No.3 State of Gujarat, learned APP Mr.U.R.Bhatt is heard. 6. Considering the records and proceedings of the trial Court, in light of the submissions made on behalf of both the sides, and considering the impugned judgment rendered by the learned Magistrate, so far as the respondent – accused No.1 Chunilal Valjibhai is concerned, as per the prosecution case he was proprietor and partner of Vimal Industries, Junagadh. Now to prove this case, the prosecution was supposed to adduce not only oral, but some documentary evidence. Considering the deposition of Food Inspector Mr.Acharya, it transpires that the statement of co-accused i.e. original accused No.2 Khodabhai was recorded by the Food Inspector stating that according to the knowledge of accused No.2 Khodabhai, Chunilal Veljibhai was proprietor of Vimal Industries. Even considering the cross- examination made on behalf of the accused, the Food Inspector categorically admitted that he does not have any independent evidence to show that Chunilal Valjibhai is proprietor of Vimal Industries, Junagadh. When such is the situation, in the impugned judgment, the learned Magistrate rightly recorded acquittal of the respondent – accused No.1 Chunilal Valjibhai. The prosecution failed to establish his nexus with Vimal Industries, Junagadh. CR.A/864/1997 7/8 JUDGMENT 6.1 So far as the respondent No.2 (original accused No.2) Khodabhai Virjibhai is considered, as per the prosecution case the Food Inspector visited his shop and the sample was collected. There is no dispute that the sample of groundnut oil was collected from the packed and sealed tin. Sufficient documentary evidence like bills etc. were shown by accused Khodabhai Virjibhai, regarding the purchase of tins containing the groundnut oil. Under such circumstances, taking resort to Sub-Section 2 of Section 19 of the Act, the learned Magistrate acquitted him. There is nothing that the learned Magistrate committed any illegality in recording the acquittal of the accused No.2 Khodabhai Virjibhai. 6.2 Moreover, considering the entire deposition of Food Inspector Mr.Acharya and the witnesses examined by the prosecution in this case, together with the panchnama about the seizure of the sample, there is nothing that before the sample was collected, the content of the tin, the groundnut oil was duly stirred. In the case of State of Gujarat Vs.Laljibhai Ishwarbhai Zala decided by this Court on dated 15.2.2007 in Criminal Appeal No.841 of 2003, almost identical was the situation, wherein the sample of groundnut oil was collected by the Food Inspector. There was no dispute that before collecting the sample, the contents of the tin, from which the sample was collected, was not duly stirred or churned. This Court observed that before collecting the sample, CR.A/864/1997 8/8 JUDGMENT it was required to be made homogeneous and for that purpose, the entire content of the tin was required to be stirred. In the result, the order of acquittal recorded by the learned trial Court was confirmed and the appeal of the State was dismissed. 7. In light of the entire above discussions, I do not find any reason to interfere with the order of acquittal recorded by the learned Magistrate. The impugned order recording the acquittal of both the accused persons cannot be said to be an illegal order or that the learned trial Judge delivered the order, contrary to the evidence on record. Therefore, in this acquittal appeal under Section 378 of the Cr.P.C., there is no reason to disturb the order. 8. For the foregoing reasons, the appeal deserves to be dismissed. The appeal stands dismissed. (J.C.UPADHYAYA, J.) (binoy)