CR.A/838/1998 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 838 of 1998 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 MUKESHKUMAR MANSUKHLAL SHAH & 2 - Opponent(s) ========================================================= Appearance : MR AJ DESAI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 01/05/2008 ORAL JUDGMENT By filing the present appeal under section 378 of the Code of Criminal Procedure, the State of Gujarat has challenged the legality and validity of the impugned judgment and order delivered by the learned Chief Judicial Magistrate, Bhavnagar [for short 'Ld. Magistrate'] on 11/6/1998 in Criminal Case No. 3312 of 1990. The Ld. Magistrate, by CR.A/838/1998 2/6 JUDGMENT virtue of the impugned judgment, was pleased to acquit the respondents herein, who were original accused in said criminal case, for the offence punishable under section 16 read with section 7(1) of the Prevention of Food Adulteration Act [for short 'PFA Act']. 2. The facts leading to the criminal prosecution, in short, are as under :- 2.1. It is the case of the prosecution that on 31/3/1990 at about 2.30 hours in the noon, the Food Inspector Mr. N V Patel visited a shop called Ms. R. Kunvarji & Sons, which was situated in the area called Sakar Bazar in the City of Bhavnagar. The Food Inspector, in presence of his helper and panch, collected sample of cotton seed oil from the shop in presence of respondent no. 1 – Mukeshkumar Shah. The respondents no. 2 was nominee employee of the firm and respondent no. 3 is the firm of M/s. R. Kunvarji & Sons. As per the case of the prosecution, the sample of cotton seed oil was collected from one oil tin and at the first instance it was taken in a vessel and thereafter it was taken in equal part in three glass bottles. The sample was duly packed and sealed and forwarded to Public Analyst for analysis. It was reported that the sample was adulterated. After obtaining due sanction for launching prosecution against the respondents herein, the Food Inspector filed criminal complaint in the Court of the Ld. Magistrate for the aforesaid offence. 2.2. The Ld. Magistrate framed charge against all the 3 accused for offences punishable under section 16 read with section 7 of the PFA Act. As the accused did not plead guilty, the prosecution adduced its oral and documentary evidence. Deposition of Food Inspector Mr. N V Patel was recorded at Exh. 22, testimony of helper witness Tribhovanbhai CR.A/838/1998 3/6 JUDGMENT Virabhai was recorded at Exh. 64 and testimony of Deputy Commissioner, Food, Mr. Babubhai Ambalal was recorded at Exh. 71. No more witnesses were examined by the prosecution. During the course of the oral evidence, necessary documents were produced on record by the prosecution in this case. After completion of the evidence, the Ld. Magistrate recorded further statements of respondents – accused under section 313 of the Code of Criminal Procedure, wherein the accused generally denied the allegations levelled against them and stated that false case against them was filed. 2.3. After considering the oral and documentary evidence on record and after hearing arguments adduced on behalf of both the parties, Ld. Magistrate delivered the impugned judgment and acquitted the respondents herein, who were original accused for the offence punishable under section 16 read with section 7 of the PFA Act. 3. On behalf of the appellant – State, Ld. APP Mr. AJ Desai submitted that the impugned judgment and order delivered by the Ld. Magistrate is contrary to law and evidence on record. That the Food Inspector, while collecting the sample, duly followed the mandatory requirements laid down under the PFA Act and the Prevention of Food Adulteration Rules, 1955 [for short 'the Rules']. No breach of any of the mandatory provisions has been committed by the Food Inspector. That the Food Inspector is a public servant and there was no need to discard his testimony and he cannot be termed as interested witness as observed by the Ld. Magistrate in the impugned judgment. Therefore, he submitted that the appeal be allowed and the impugned judgment and order passed by the Ld. Magistrate be set aside and the respondents herein, who were original accused in the aforesaid case, be convicted and appropriately CR.A/838/1998 4/6 JUDGMENT sentenced in accordance with law for the offence punishable under section 16 read with section 7 of the PFA Act. 3.1. None appeared on behalf of the respondents. 4. Now considering the deposition of Food Inspector Mr. NV Patel recorded at exh. 22, it clearly transpires that the mandatory requirements laid down under rule 14 of the Rules is not duly complied with by the Food inspector. As laid down in rule 14 of the Rules, it is clearly stated that the sample of food for the purpose of analysis shall be packed in clean and dry bottle or jar or in other suitable container. In the instant case, perusing the impugned judgment delivered by the Ld. Magistrate, in para. 8 of the judgment, appreciating the deposition of the Food Inspector Mr. Patel and the deposition of his helper Tribhovanbhai Virabhai, it is observed by the Ld. Magistrate that no evidence is adduced by the Food Inspector as to whether the container vessel wherein the sample of cotton seed oil was in the first instance taken from the tin and the bottles wherein in equal parts the sample of cotton seed oil collected in the vessel all were clean and dry. In this connection, considering the examination-in-chief of the Food Inspector Mr. Patel, he stated that in the first instance he collected the sample in clean vessel [Tapeli] and thereafter, the sample of cotton seed oil from said vessel was taken in equal part in three clean glass bottles. However, in this respect, considering his cross-examination on behalf of the defence, it clearly transpires that he had come to Bhavnagar for the purpose of raid from Gandhinagar. He stated that from Gandhinagar he had carried with him the three glass bottles. He stated that the bottles were lying in his office and he does not know as to when those bottles were cleaned and by whom. It is significant to note that nowhere he stated that from CR.A/838/1998 5/6 JUDGMENT Gandhinagar he had also carried with him the vessel Tapeli. The Ld. Magistrate in para. 8 of the impugned judgment, relied upon certain judgments delivered by this Court in connection with mandatory requirements laid down under rule 14 of the Rules. I am of the opinion that the Ld. Magistrate, in light of the above factual situation and evidence on record, rightly came to the conclusion that the mandatory requirements laid down under rule 14 of the Rules have not been complied with by the Food Inspector at the time of collecting the sample of cotton seed oil. 4.1. It further transpires that the Food Inspector in the instant case, collected the sample of cotton seed oil from one oil tin. It is clear that the sample collected by the Food Inspector was in liquid form. To make the sample a representative one and homogeneous, he was required to stir the oil, which was in the tin, before taking the sample. Perusing the entire testimony of the Food Inspector, he nowhere stated that before taking the sample of cotton seed oil, he stirred the oil which was in a tin and after stirring the oil, the representative sample was collected. 5. In view of the aforesaid discussions, it is clear that the mandatory requirements laid down under the PFA Act and the Rules have not been duly complied with by the Food Inspector. Under such circumstances, it cannot be said that the judgment of acquittal rendered by the Ld. Magistrate can be said to be illegal, perverse or contrary to the evidence on record. Therefore, there is no reason whatsoever for this appellate Court to interfere with the judgment of acquittal delivered by the Ld. Magistrate. For the foregoing reasons, the appeal is hereby dismissed. CR.A/838/1998 6/6 JUDGMENT ( J .C. UPADHYAYA, J. ) *Pansala.