CR.A/477/1998 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 477 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 PRADIPKUMAR VRAJLAL KANDOI & 1 - Opponent(s) ====================================== == Appearance : MR AJ DESAI, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1 - 2. ====================================== == CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 30/04/2008 ORAL JUDGMENT 1. This appeal under section 378 of Criminal Procedure CR.A/477/1998 2/7 JUDGMENT Code, 1973 ('Code', for short) has been preferred challenging the legality and validity of the impugned judgment and order passed by learned Magistrate First Class, Mandvi – Kutch ('ld.Magistrate', for short) dated 10.3.1998 in Criminal Case No.206/1993. By virtue of the impugned judgment and order, the ld.Magistrate was pleased to acquit both the respondents herein, who were accused in the aforesaid criminal case for the offence punishable under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 ('Act', for short). 2. The prosecution case in brief is as under:- 3. Food Inspector, Shri R.P. Christian, visited the sweet-mart shop of the respondents on 24.9.1992, at about 18.15 hours, and collected sample of “Bundi Ladoo”. The Food Inspector collected the sample, packed and sealed the sample as per the requirements laid down under the Act and the Prevention of Food Adulteration Rules ('Rules', for short), in presence of Panchas. The sample was sent for analysis and was found to be adulterated. After obtaining due sanction for launching the criminal prosecution against both the accused, the Food Inspector Mr.Christian filed criminal complaint against both the accused in the Court of ld.Magistrate. As the accused did not plead guilty, the ld.Magistrate recorded the evidence adduced by the prosecution. The testimony of the complainant Food Inspector Mr.Christian was recorded at Exh.38. The testimony of panch witness Salemamad Bhachoo was recorded at Exh.64. No more witnesses were examined by the prosecution. The prosecution produced relevant documentary evidence in this case. After the prosecution CR.A/477/1998 3/7 JUDGMENT completed their evidence, ld.Magistrate recorded the further statements of both the accused u/s.313 of the Code, wherein the accused generally denied the allegations leveled against them and stated that false case was filed against them. After appreciating the evidence on record, and hearing the arguments advanced on behalf of both the sides, ld.Magistrate delivered the impugned judgment, and he was pleased to acquit both the accused persons. 4. On behalf of the appellant – State, ld.A.P.P. Mr.Desai submitted that the impugned judgment and order delivered by the ld.Magistrate is contrary to law and evidence on record. It is submitted that one of the ground, which appealed to the ld.Magistrate for acquitting the accused is non-compliance of section 13(2) of the Act, in the sense that the ld.Magistrate observed that the notice issued by the Food Inspector to the accused, informing them about their right to re-analyse the sample as provided u/s.13(2) of the Act, was not received by the accused. However, in fact considering the RPAD slips of the notices produced at Exh.59 & Exh.60, the R.P.A.D. slips bear the signature of Vrajlal Ratansinh, who is none other than the father of both the respondents herein, who were original accused in the aforesaid criminal case. Therefore, the ld.Magistrate erred in holding that there was non-compliance of mandatory provision contained u/s.13(2) of the Act. That the ld.Magistrate erred in holding that since there was no effective stirring of the sample, there was a breach of mandatory requirement. In fact the sample collected was “Bundi Ladoo” and the same is prepared in sugar chasni, and therefore, no CR.A/477/1998 4/7 JUDGMENT question of stirring arises. Therefore, it was submitted that the appeal be allowed, and the impugned judgment and order delivered by the ld.Magistrate be set-aside, and both the respondents herein be convicted and sentenced for the offence punishable u/s.16 r/w. section 7 of the Act in accordance with law. 5. None appeared on behalf of respondents. 6. Perusing the impugned judgment delivered by the ld.Magistrate, and especially considering the discussion made by him in paragraph – 16 of his judgment, it appears that there was a breach of mandatory requirement laid down under sub-section 2 of section 13 of the Act. Before the factual aspect is discussed in this judgment, it would be necessary to consider the relevant provision contained under sub-section 2 of section 13 of the Act, which is reproduced as under:- “13. Report of public analyst – (1)....... (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” 7. Now, in this regard, perusing paragraph 16 of the CR.A/477/1998 5/7 JUDGMENT judgment delivered by the ld.Magistrate, it transpires that the ld.Magistrate reproduced relevant portion of the testimony of the Food Inspector, wherein the Food Inspector Mr.Christian during the course of his deposition categorically admitted that the notices issued to the accused persons, Exh.57 and Exh.58 informing them about their right u/s.13(2) of the Act were not served upon the accused persons, and even he did not make any effort to personally serve them with the notices. In this respect, considering paragraph 30 of the deposition of Food Inspector Mr.Christian, recorded at Exh.38, he clearly admits that the notices, Exhs.57 and 58 were not served upon the accused. In the impugned judgment, ld.Magistrate rightly came to the conclusion that when both the accused persons were not served with the notices, whereby they were informed about their right of re-analysis of sample in Central Food Laboratory as provided u/s.13(2) of the Act, there was clear violation of said mandatory requirement, which will prove fatal to the case of the prosecution. Considering the overall evidence on record, and as discussed above, it cannot be said that the ld.Magistrate committed any illegality in arriving at such conclusion. However, during the course of argument, ld.A.P.P. Shri Desai for the appellant State submitted that the Local Health Authority sent the notice to both the respondents herein who were original accused persons in the aforesaid criminal case by registered post. The office copies of both the notices are at Exhs.57 and 58. That Exhs.59 and 60 are the zerox copies of the original R.P.A.D. slips, which bear the signature of Vrajlal Ratansinh. That said Vrajlal Ratansinh is the father of CR.A/477/1998 6/7 JUDGMENT both the accused persons, namely Pradipkumar Vrajlal and Kirtikumar Vrajlal. That therefore, it should be presumed that both the accused are duly served with the notices issued to them u/s.13(2) of the Act, as the notices were received by their family member, namely their father. However, in this respect, considering the entire deposition of the Food Inspector Mr.Christian recorded at Exh.38, nowhere he stated that though Local Health Authority issued the notices by registered post, but the notices were in fact received on behalf of both the accused by their father Vrajlal Ratansinh. Perusing paragraph 17 of his deposition, Exh.38, at the time when both the registered AD slips came to be exhibited at Exh.59 and Exh.60, nowhere he stated that both the AD slips bear the signature of Vrajlal Ratansinh, who is father of both the accused persons. Even considering paragraph 30 of his deposition, when he admitted that the notices Exh.57 and Exh.58 under section 13(2) of the Act were not served upon the accused persons, at that time also the Food Inspector did not clarify that the notices were in fact received by the father of the accused. When such is the situation, it can be safely said that the provision contained u/s.13(2) of the Act cannot be said to have been fully and truly complied with. 8. In the impugned judgment, the ld.Magistrate further observed that other mandatory requirements as laid down under the Act as well as under the Rules were not duly complied with by the Food Inspector at the time of collecting, packing and sealing the sample. However, I need not discuss in this judgment the said observations made by the ld.Magistrate in the impugned judgment, as CR.A/477/1998 7/7 JUDGMENT the non-compliance of the mandatory provision laid down u/s.13(2) of the Act itself is sufficient to acquit both the accused persons from the charge of the offence punishable u/s.16 r/w. section 7 of the Act. 9. For the foregoing reasons, the appeal deserves to be dismissed and same is hereby dismissed. [ J.C. UPADHYAYA, J. ]