CR.RA/75/1993 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 75 of 1993 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE =============================================== 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 ? =============================================== JAYANTILAL LAXMANBHAI PATEL. Versus STATE OF GUJARAT. =============================================== Appearance : Ms. PAULAMI SHETH with Mr. MANAV A MEHTA for the Applicant. Mr UR BHATT, APP, for Opponent No.1. Opponent No.2 deleted. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE Date : 08/12/2008 ORAL JUDGMENT:- 1. The Revisionist herein challenges the judgment and order rendered by Sessions Court, Surendranagar, on 6th March, 2003, in Criminal Appeal No.14 of 1987. The said appeal arose out CR.RA/75/1993 2/7 JUDGMENT of a judgment and order rendered by learned Judicial Magistrate, First Class, Surendranagar, on 31st August, 1989 in Criminal Case No.1304 of 1985. 2. The Revisionist was running a Parotha House and the Food Inspector of Surendranagar Nagarpalika visited the said Parotha House on 16.10.1984 around 11.15 A.M. and suspected that the curd served to the customers at the Parotha House was not upto the standards required under the Prevention of Food Adulteration Act, 1954 (“Act” for short). He, therefore, purchased 600 grams of curd by paying Rs.4.50 ps., divided the same into three equal parts and put each part in three cleaned glass bottles and added 16 drops of formalin to the contents of each of the bottles. Then he shook the bottles and sealed them as per the procedure prescribed under the law. The sample was sent to Public Analyst who, in turn, found that the sample did not conform to the required standards under the Act. Subsequently, after following the necessary procedure, a complaint was lodged in the Court of Judicial Magistrate, First Class, Surendranagar. The Trial Court found that the evidence was clinching and, ultimately, recorded conviction of the Revisionist under Section 16(1)(a)(i) of the Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.1000/-, in default, to undergo further simple imprisonment for one month by judgment and order dated 31st August, 1987 in Criminal Case No.1304 of 1985. CR.RA/75/1993 3/7 JUDGMENT 2.1 The said judgment and order was challenged before Sessions Court, Surendranagar, by preferring Criminal Appeal No.14 of 1987. A point was raised before the Appellate Court that the sample, which was collected, cannot be said to be homogeneous representative sample of the stock, as it was not churned before drawing the sample. The Appellate Court did not accept the said contention on the ground that the said point was not raised before the Trial Court. Ultimately, the Appellate Court dismissed the appeal confirming the judgment and order of the Trial Court by judgment and order dated 6.3.1993. This has given rise to the present Revision Application. 3. Learned Advocate, Ms. Sheth, for the appellant submitted that the Appellate Court committed an error in not accepting the contention as it would go to the root of the case. She submitted that in the light of the decisions rendered by this Court in Vallabhbhai Popatbhai v. State of Gujarat, 2005(2) GLR 1518 and Mansinh Chhajuram Yadav & Another v. State of Gujarat, 1985 GLH 782 as also in the light of decision rendered by the Apex Court in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma & Another, 1983 GLH 333, churning of curd is essential to ensure that the sample is homogeneous because milk and milk preparations like curd will CR.RA/75/1993 4/7 JUDGMENT have a tendency of settling fat on the top. She, therefore, submitted that this revision application may be allowed and the Revisionist may be acquitted by setting aside the judgments and orders of both the Courts below. 4. The appeal is opposed to by learned Additional Public Prosecutor, Mr. Bhatt. 5. It may be recorded, at the outset, that learned Advocate for the Revisionist does not challenge any other aspect of the case so far as sealing and other procedural aspects are concerned. 6. Having read the deposition of Food Inspector, Harshadrai Ratilal Vyas (Exhibit 10) and having read the Panchnama (Exhibit 29), it is clear that when the sample was purchased by the Food Inspector, no churning was done. The sample was taken in a stainless steel container, which was then divided into three equal parts and put the same into three glass bottles, which were properly cleaned. Thereafter drops of formalin were added to the contents of all the three bottles and then the bottles were shaken. Differently put, shaking or stirring was not done before drawing the sample. CR.RA/75/1993 5/7 JUDGMENT 7. Now, in this regard, if the decision of the Apex Court referred to above is seen, the Court has observed, in paragraph 8, thus: “8......We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis.” This being the requirement as per the law laid down by the Apex Court, it was the duty of the Food Inspector to stir the curd before taking samples, which he has failed to do and which aspect the Trial Court as well as the Appellate Court has failed to consider. The fact that the requirement of law has not been complied with clearly emerges from the evidence and that aspect has not been considered by both the Courts below and, therefore, this Court is of the view that interference is required in the judgments and orders impugned in exercise of the revisional jurisdiction. 8. This High Court in the case of Mansinh Chhajuram Yadav as well as Vallabhai Popatbhai (supra) has taken similar view. In Vallabhai Popatbhai v. State of Gujarat, the Court was CR.RA/75/1993 6/7 JUDGMENT faced with a similar situation and similar argument and the Court observed thus:- “It is neither stated in th complaint nor in the deposition that th sample o curd was drawn by a detail cut and homogenizing the sample after churning and, thereafter, the same was sent for analysis. On the contrary, the description of procedure adopted by the Food Inspector gives impression that the entire lot of 5 kg. Of curd was firstly stirred with the help of spoon and, thereafter, the sample was drawn. How many times this exercise was done is also stated by the Food Inspector and it is difficult for this Court to accept that the quantity of 5 kg. of curd can be churned if a spoon is moved two, three or four times. Putting a cut from top to bottom is important to have homogeneous sample.” 9. In the light of the foregoing discussion, it is clear that the requirement of law was not complied with by the Food Inspector while drawing sample. This aspect clearly emerges from the evidence which has not been considered by either of the Courts below and the order of conviction, therefore, cannot be permitted to stand. The Revision Application, therefore, stands allowed. The judgment and order dated 31st August, 1989 rendered by learned J.M.F.C., Surendranagar, in Criminal Case No.1304 of 1985 and the judgment and order dated 6th March, 2003, rendered by Sessions Court, Surendranagar, in Criminal Appeal No.14 of 1987 are CR.RA/75/1993 7/7 JUDGMENT hereby set aside. The Revisionist is acquitted of the charges levelled against him. Since he is on bail, his bail bound shall stand cancelled. Fine, if paid, shall be refunded to him. [ A. L. DAVE, J. ] gt