CR.A/107/1992 1/40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 107 of 1992 For Approval and Signature: HON'BLE SMT.JUSTICE ABHILASHA KUMARI ===================================================== 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 Versus DOSHI CHHABILDAS SHIVLAL & 6 - Respondents ===================================================== Appearance : MR UR BHATT, ADDL. PUBLIC PROSECUTOR for Appellant MR KIRTIDEV R DAVE with MR RAHUL K DAVE for Respondent:1 MR DK MODI with MR MD MODI for Respondents: 2 - 4. MR PJ YAGNIK for Respondents: 5 - 7. ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 30/07/2007 ORAL JUDGMENT CR.A/107/1992 2/40 JUDGMENT 1. This Appeal under Section 378 of the Code of Criminal Procedure, 1973, has been preferred by the appellant State of Gujarat against the judgment and order dated September 19, 1991, rendered by the learned Judicial Magistrate, First Class, Limdi, in Criminal Case No.755 of 1986, whereby the respondents (original accused Nos.1 to 7) have been acquitted of the charges for having committed offences punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 (“the Act” for short). 2. Briefly stated, the case of the prosecution is that on September 3, 1985, at about 2:00 p.m., Mr. M.G.Nair, Food Inspector, who is the original complainant, visited the Kirana Shop (Provision Store) of the respondent No.1, which is located in the market at Chuda, from where the said respondent was carrying on the business of selling food grains, pulses, Ghee, jaggery, and other food articles. The respondent No.1 was present in CR.A/107/1992 3/40 JUDGMENT his shop at the time of the visit of the complainant. After introducing himself, the complainant declared his intention of purchasing a sample of groundnut oil labelled as “City Brand Pure Groundnut Oil” for the purpose of analysis. To this end, the complainant gave a written notice to the respondent No.1 in the presence of a Panch witness Mr. Niranjan Trambaklal Gosaliya, to draw a sample of groundnut oil from the sealed tin lying in the shop of respondent No.1. The sealed tin of groundnut oil was opened in the presence of respondent No.1 and the Panch witness by the complainant and 400 grams of groundnut oil was purchased for a sum of Rs.6.40 ps. under a bill, signed by the complainant, Panch witness and the respondent No.1. The sample of groundnut oil was then divided into three equal parts and put into three transparent, clean and dry glass bottles which were duly sealed, labelled and wrapped separately in brown paper as required by law. On the sample CR.A/107/1992 4/40 JUDGMENT bottles, a slip bearing the signatures of the Food Inspector, the respondent No.1 and the Panch witness was affixed. One of the samples was sent for analysis to the Public Analyst together with memorandum in Form VII under intimation to the Local Health Authority whereas the remaining two sample bottles were sent to the Local Health Authority at Bhavnagar. The sample of groundnut oil sent to the Public Analyst was analyzed and the report dated September 20, 1985, which is to be found at Ex.35, indicated that the sample was not conforming to the standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955 (“the Rules” for short). As the sample of groundnut oil purchased form the shop of respondent No.1 was found to be adulterated within the meaning of the Act, the Food Inspector had applied for written consent of the competent authority for lodging prosecution against the respondents No.1 to 7. The consent for prosecution of the above respondents was CR.A/107/1992 5/40 JUDGMENT given by consent letter dated May 30, 1986, by the Assistant Director and Local (Health) Authority, Drug Control Administration, Bhavnagar Circle, that is, the competent authority, which is produced at Ex.44. In view of the according of sanction for prosecution, the Food Inspector had filed the compliant against the respondents in the Court of learned Judicial Magistrate, First Class, Limdi, which was registered as Criminal Case No.755 of 1986. 3. After issuance of summonses to the accused, the learned trial Court framed the Charge against the respondents, which is at Ex.107, and the same was read over and explained to them. The accused pleaded “not guilty” and therefore, the case came to be tried. 4. On behalf of the prosecution, Mr.Madanmohan Govindan Nair, Food Inspector and the complainant herein, was examined as P.W.1 and his testimony is to be found at Ex.18. He has stated in his examination-in-chief that on CR.A/107/1992 6/40 JUDGMENT September 3, 1985, he visited the Kirana Shop of the respondent No.1 at about 1:45 p.m. He was accompanied by one Mr.N.O.Waghela, who was his helper. The respondent No.1 was present in his shop at that time. This witness narrated in detail that he drew the samples of groundnut oil from a sealed tin labelled as “City Brand Pure Groundnut Oil” which was lying in the shop of the respondent No.1, for sale. He has further stated in his examination-in-chief that the tin was opened in the presence of respondent No.1 and Panch witness and 400 grams of groundnut oil was taken from the tin into a dry and odourless steel jug from which it was transferred to three dry and transparent glass bottles. The bill for the purchase of the said quantity of groundnut oil taken as a sample was countersigned by the respondent No.1, complainant and Panch witness, which is Ex.21. This witness has further narrated in detail the steps taken by him for sending the sample of groundnut oil for analysis and has CR.A/107/1992 7/40 JUDGMENT maintained that the procedure as prescribed by the Act and the Rules has been scrupulously followed. Mr.Niranjan Trambaklal, who is the Panch witness, has been examined as P.W.No.2, at Ex.153. He has not supported the version of the prosecution and has categorically stated that he has appended his signature on the Panchnama at the behest of an Officer appearing like a Police Officer, who told him to sign the Panchnama at Ex.23. He has also, in terms, admitted that the said Panchnama was already prepared and he has just appended his signature to the same. This witness has been declared hostile at the request of learned Additional Public Prosecutor. 5. Before the trial Court, the case of the prosecution was that due procedure prescribed under the Act and the Rules was scrupulously followed by the complainant and the entire process of drawing of sample of groundnut oil and sealing it was undertaken in the CR.A/107/1992 8/40 JUDGMENT presence of the respondent No.1 and the Panch witness. It was further submitted that the competent authority had applied its mind before according sanction for prosecution which was legal and valid and therefore, the prosecution had made out a case for the conviction of the accused-respondents. 6. On the other hand, the respondents had challenged the grant of prosecution as not being a valid one as it showed non- application of mind, and had also contended that the prosecution had failed to discharge the onus to prove that there was compliance of the mandatory provisions of Rule 14 of the Rules, meriting the acquittal of the respondents. 7. On appreciation of evidence, the learned Magistrate acquitted the respondents of the charges against them, mainly on two counts. The first ground for acquittal was based on the conclusion that the consent for prosecution is not legal and valid inasmuch CR.A/107/1992 9/40 JUDGMENT as it was accorded without application of mind. The second aspect which weighed with the learned trial Court was, in effect, that there was non-compliance of the mandatory requirements of Rule 14 of the Rules. According to the learned Magistrate, there was no evidence on record that the steel jug in which the sample of groundnut oil was taken by the Food Inspector was cleaned before the sample was drawn, since the complainant has stated that prior to taking the sample from the shop of the respondent No.1, he had drawn another sample of oil in the steel jug from another shop. The learned Magistrate, therefore, concluded that the respondents deserve to be given the benefit of doubt on this ground as well. Lastly, it was held by the learned Magistrate that it is not proved beyond reasonable doubt that the respondents Nos.5 to 7 were the manufacturers of the sample goods and that the respondents Nos.2 to 4 had purchased the said goods from the respondents No.5 to 7. In view of the CR.A/107/1992 10/40 JUDGMENT abovereferred to conclusions, the learned Magistrate, by giving benefit of doubt to all the accused, acquitted the respondents vide judgment dated September 19, 1991, giving rise to the instant Appeal. 8. This Court has heard Mr.U.R.Bhatt, learned Additional Public Prosecutor for the State, Mr. Kirtidev R.Dave with Mr.Rahul K.Dave, learned counsel for the respondent No.1, Mr.D.K.Modi with Mr.M.D.Modi, learned counsel for the respondents No.2 to 4 and Mr.P.J.Yagnik, learned counsel for the respondents No.5 to 7, at length and in great detail and has gone through the paper-book containing relevant documents as well as the original record. 9. Mr.U.R.Bhatt, learned Additional Public Prosecutor, has contended that, if the contents of the consent letter containing the sanction for prosecution (Ex.44) are perused, it is clear that the competent authority has gone through all the papers pertaining to the CR.A/107/1992 11/40 JUDGMENT case and only after due application of mind, has accorded the sanction for prosecution. He has submitted that it is the substance of the consent letter that is important and not its form. The consent letter shows that there is application of mind by the competent authority which has perused the relevant material and has recorded its satisfaction before according sanction for prosecution. At that stage, the sanctioning authority was not required to weigh the pros and cons and go into the technicalities of the case. The learned Additional Public Prosecutor has emphasized that the competent authority has mentioned Sections 7 and 16 of the Act while according the sanction and in view of the same, it was not necessary for him to mention the sub-sections or clauses of Sections 2 and 7 of the Act. The learned Additional Public Prosecutor has pointed out that the function being performed by the competent authority is administrative and not quasi judicial and at the stage of granting sanction it is only to CR.A/107/1992 12/40 JUDGMENT be seen, whether a prima facie case exists on the basis of the documents, which has been done by the competent authority in the present case. He has therefore submitted that the learned Magistrate has come to a wrong conclusion that the sanction is not a valid one. In support of his contentions, the learned Additional Public Prosecutor has relied upon the decision reported in 1991(2) GLH 615 – Harshvadan Dahyalal Sevak, Food Inspector v. Nareshbhai Devandas Vaghvani & anr. The second submission advanced by the learned Additional Public Prosecutor is that the sample of groundnut oil was drawn after meticulously following the procedure as prescribed by the Rules and the steel jug in which the samples of groundnut oil were taken was clean and this has been so stated by the Food Inspector in his testimony. He emphasised that the learned trial Court ought to have relied upon the statement of the Food CR.A/107/1992 13/40 JUDGMENT Inspector in this regard as, according to the learned Additional Public Prosecutor, there is evidence on record that the steel jug as well as the bottles in which the samples were taken were clean and dry and in this view of the matter, the finding of acquittal recorded by the learned trial Court on the ground of non-compliance of the mandatory provisions of Rule 14 deserves to be set aside. 10. On the other hand, the first submission of Mr.Kirtidev R.Dave, learned counsel for the respondent No.1, is that there is no evidence that the bottles in which the sample of groundnut oil was stored were cleaned before taking the said sample. It is submitted that the complainant has admitted that the sample of groundnut oil was taken in a steel jug before transferring it into the glass bottles, and this jug was used by the Food Inspector for taking another oil sample from another shop, just prior to taking the sample of groundnut oil in the present case. CR.A/107/1992 14/40 JUDGMENT Mr.Kirtidev R.Dave has further submitted that there is no evidence that either the steel jug, or the bottles, had been cleaned before the sample of groundnut oil was taken from the shop of respondent No.1 and the helper of the Food Inspector who was supposed to be responsible for cleaning the bottles, has not been examined. It is pointed out that in view of this position, the complainant has not complied with the mandatory requirements of Rule 14 and the prosecution has failed to discharge the onus which rests upon it to prove that the requirements of law were duly complied with. The second submission advanced by the learned counsel for the respondent No.1 is that the Panch witness, P.W.2, has not supported the case of the prosecution, which is evident from his testimony at Ex.153, and even the report of the Public Analyst at Exh.35 does not disclose the percentage of adulteration in the sample of groundnut oil. CR.A/107/1992 15/40 JUDGMENT Thirdly, it is contended by Mr.Kirtidev R.Dave, that the sanction for prosecution has been given without application of mind. According to him, the consent letter is devoid of reasons and does not disclose which clause of Section 2 and which sub-section of Section 7 is applicable in the present case and therefore, it cannot be regarded as a legal and valid sanction. The fourth submission advanced by learned counsel for the respondent No.1 is that the respondent No.1 is a vendor and has duly produced the bill of purchase of groundnut oil from respondents No.2 to 4 at the time of taking of the sample at Ex.64, the xerox copy of which was taken by the complainant. Moreover, the tin of groundnut oil was a sealed one and it was opened in his presence by the complainant himself. Referring to the documents at Ex.98/1 to 98/4 of the original record, the learned counsel for the respondent No.1 has submitted that the bill CR.A/107/1992 16/40 JUDGMENT for five tins of groundnut oil purchased from the respondents No.2 to 4, the bill of the contractor for collection of octroi, the octroi receipt and the letter of the transporter to the learned Magistrate to the effect that five tins of oil were received, are conclusive evidence to prove that the respondent No.1 had purchased the groundnut oil from the dealer with written warranty in the prescribed form and the groundnut oil, while in his possession, was properly stored and that he has sold it in the same state as he purchased it. Therefore, it is emphasised, that the respondent No.1 is not liable to be prosecuted for the offence and the defence under Section 19(2) of the Act is available to him. In view of the above contentions, the learned counsel for the respondent No.1 has submitted that the trial Court has rightly acquitted the respondents of the charges against them. 11. Mr.D.K.Modi, learned counsel appearing for CR.A/107/1992 17/40 JUDGMENT the respondents No.2 to 4, has raised several grounds in defence of the said respondents and in support of the judgment of the learned Magistrate. His first contention is that the respondents No.2 to 4 have been prosecuted merely on the strength of the bill produced by the respondent No.1 – vendor, before the Food Inspector. He has invited the attention of the Court to the record and submitted that Ex.64 is the original bill whereas Ex.135 (Mark-A) is the xerox copy of the same and Ex.136 is the duplicate bill in the bill-book maintained by the respondent No.2-firm and if Ex.64 and Ex.136 are compared, it is seen that there is an erasure in Ex.64, where certain words have been scored out. Moreover, the words “City Brand” visible in Ex.64 do not appear in Ex.136, i.e. the duplicate bill in the bill-book maintained by the respondent No.2. He submits that this fact has been noticed by the learned Magistrate and recorded in the impugned judgment. According to Mr.D.K.Modi, the bill produced by the CR.A/107/1992 18/40 JUDGMENT respondent No.1 at Ex.64 is not a genuine bill and the defence under Section 19(2) of the Act will not be available to him. It is further contended that the identity of the sample of groundnut oil has not been established and therefore, no reliance can be placed on the bill. What was sold by the respondent No.2-firm were only five tins of groundnut oil and there was no brand like “Teen Ekka” or “City Brand” on the same as stated by the complainant. According to the learned counsel for the respondents No.2 to 4, mere production of the bill is not sufficient and will not dispense with the proof of its contents. Since the respondent No.1 has not entered into the Witness Box, the benefit of the provisions of Section 19(2) of the Act cannot be claimed by him. In this regard, Mr.D.K.Modi has placed reliance on two decisions reported in AIR 1971 SC 1865 – Sait Tarajee Khimchand and others v. Yelamarti Satyam and others and 1990 Cr.L.J. 2452 – S.D.Nagdeve v. Sudhakar CR.A/107/1992 19/40 JUDGMENT Raghunath Burange. The second contention raised by Mr.D.K.Modi is that a duty is cast upon the prosecution to comply with the mandatory requirements of Rule 14 which stipulates that the samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or any other suitable containers. Referring to the testimony of the complainant, it is pointed out by Mr.D.K.Modi that in the present case, the evidence of the complainant himself amply proves that the sample of groundnut oil was taken by him in a steel jug, before transferring it into the glass bottles. In his cross-examination by the respondent No.1, the complainant admits that the steel jug was brought from his office. Further, in the cross-examination on behalf of the respondent No.5, the complainant has further admitted that before taking the sample of groundnut oil from the shop of the respondent No.1, he had visited another shop in the market at CR.A/107/1992 20/40 JUDGMENT Chuda and taken a sample of oil from there. He has admitted that he did not remember what was the brand of oil taken as a sample previously. The learned counsel has pointed out that the complainant has stated in cross- examination that the shop from where he had previously taken the sample of oil was close to the shop of the respondent No.1 and that it was possible to reach the shop of the respondent No.1 in five to seven minutes and also that he had taken the sample of oil from the shop of respondent No.1, immediately after he had taken the oil sample from the previous shop. In view of this position, it is forcefully contended by Mr.D.K.Modi that there is no evidence worth the name to suggest that the steel jug used by the complainant before taking the sample from the shop of the respondent No.1 was cleaned, and by whom, and it is possible that some traces of the oil sample taken by the complainant from the previous shop could have remained in the said steel jug and, therefore, the CR.A/107/1992 21/40 JUDGMENT respondents have rightly been given the benefit of doubt by the learned Magistrate. Mr.D.K.Modi has referred to several decisions in support of his submissions, some of which are; (1) 1998(2) GLH 960 – State of Gujarat v. Bhagchand Sadhumal, (2) 1999(1) GLH 227 – State of Gujarat v. Bhupendra M.Mehta, (3) 1995(2) GLH 722 – State of Gujarat v. Babu Lavji Jalia, (4) 1995(2) GLR 1099 – State of Gujarat v. Sohanlal Trikamchand Shah & Ors., (5) 2002(2) FAC 196 – Sudhirchandra B.Joshi, Food Inspector, Baroda v. Arvindkumar Naranbhai Patel & others and (6) 2005(1) FAC 66 – State of Gujarat v. Dipakkumar Lakhiram Gondaliya. The third contention advanced by Mr.D.K.Modi is that while lifting the sample of groundnut oil, there is no evidence on record that it was stirred, mixed and made homogeneous, which is the requirement of law and therefore, the sample was not properly taken and failure to obtain a proper sample would CR.A/107/1992 22/40 JUDGMENT make the subsequent analysis worthless. In support of this submission, the learned counsel has placed reliance on (1) 2005 CR.L.J. 2100 – State of Maharashtra v. Vinayak Mahadeorao Waze and another, (2) 2005(1) FAC 16 (Andhra Pradesh) – The Food Inspector v. Padakanti Bhupati and (3) 1991(2) FAC 98 – Suresh Kumar v. State of Haryana. The learned counsel for the respondents No.2 to 4 has pointed out that as regards detection of castor oil in the sample of groundnut oil, no specific measurement is shown and the Public Analyst has not come to the conclusion that it is injurious to health. The last contention advanced by Mr.D.K.Modi is regarding the validity of the sanction. He has submitted that the consent for prosecution is a mechanical and omnibus one, which shows total non-application of mind. According to Mr.D.K.Modi, merely by writing CR.A/107/1992 23/40 JUDGMENT the word `adulterated' in the consent, it is not clear under which clause of Section 2 or which sub-section of Section 7 of the Act, the offence falls. He has submitted that Section 2(ia) of the Act defines the word `adulterated' and different species of the offence are enumerated from sections 2(ia)(a) to (m) of the Act. Failure to specify under which clause of Section 2(ia) the adulteration falls is an infirmity which proves that the sanction is not a valid one. It is further submitted that no reasons have been given by the competent authority while granting sanction for prosecution. In support of this contention, the learned counsel has relied upon 1985(II) FAC 88 – Nizamuddin Siddikbhai Tigala v. State of Maharashtra and 1979(I) FAC 210 – State of Maharashtra v. Shantilal Jamnadas Thakkar. It is noticed that these judgments have also been relied upon by the learned Magistrate in coming to the conclusion that the competent authority has not applied its mind and that the CR.A/107/1992 24/40 JUDGMENT sanction for prosecution is not valid. 12. Mr.P.J.Yagnik, learned counsel for the respondents No.5 to 7, the manufacturers of the groundnut oil in question, has adopted the arguments advanced by Mr. D.K.Modi. The only other aspect that he has pointed out is, that the respondents No.5 to 7 have been implicated on the basis of the label of “City Brand Pure Groundnut Oil” which was found on the tin of groundnut oil from which the sample was drawn by the complainant. However, it is submitted by learned counsel for the respondents No.5 to 7 that there is no evidence whatsoever regarding the sale of the tin of groundnut oil to the respondents No.1 to 4, putting of the label on the tin, or issuance of any bill in this regard. Mr.P.J. Yagnik has contended that it was the duty of the Food Inspector to make such inquiries and inspection as may be necessary to detect the manufacture, storage or sale of article of food in CR.A/107/1992 25/40 JUDGMENT contravention of the Rules as provided by Rule 9(f), which has not been done by him. According to the statements made by the Food Inspector in his cross-examination, he has admitted that it is only on the basis