CR.A/753/1996 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 753 of 1996 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 PRAJAPATI AMRATLAL NATVARLAL - Opponent(s) ====================================== Appearance : MR MR MENGDE, APP for Appellant(s) : 1, NOTICE SERVED for Opponent(s) : 1, MR DK MODI for Opponent(s) : 1, MR MD MODI for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 08/02/2008 CAV JUDGMENT 1. By means of filing this appeal under section 378 of the CR.A/753/1996 2/25 JUDGMENT Code of Criminal Procedure, 1973, the appellant – State of Gujarat has challenged the legality, validity and propriety of the judgment and order dated 1/6/1996 rendered by the Learned Judicial Magistrate First Class, Petlad [hereinafter referred to as 'the learned Magistrate'] in Criminal Case No. 2433 of 1985, acquitting the respondent – accused of the offences punishable under sections 16(1)(a) read with section 7 of the Prevention of Food Adulteration Act, 1954 ['the Act' for short]. 2. According to the prosecution case, Mr. MJ Jadav, who was Food Inspector, District Kheda, visited grocery shop of the respondent – accused on 21/5/1985 at about 10.00 AM in capacity as Food Inspector. He was accompanied by his Peon as well as Panch. He introduced himself as Food Inspector to the accused and collected the sample of turmeric powder by purchasing 450 grams of turmeric powder. He collected the said sample and divided the sample in three equal parts, put the same in transparent dried bottles and sealed the same and paid the price to the accused person. He sent the sample to the Public Analyst for analysis. The Public Analyst, after following the procedure prescribed under the law and after analysing the sample, sent his report stating that upon microscopic test, the sample of turmeric powder contained huge quantity of rice starch and did not conform to the standards and provisions laid down under the Food Adulteration Rules , 1955 [“the Rules” for short]. Thereupon, necessary sanction for instituting a CR.A/753/1996 3/25 JUDGMENT criminal complaint was obtained by the Food Inspector from the Local Health Authority as envisaged under section 20 of the Act and the complaint was filed in the Court of the learned Magistrate. Simultaneously, intimation under section 13(2) of the Act was given to the accused person, who in turn preferred to get the sample analysed by the Central Food Laboratory [hereinafter referred to as “CFL”]. The CFL in turn, sent the report to the learned Magistrate after analysing the sample of turmeric powder and the finding of the CFL, upon microscopic test, was that the sample showed presence of foreign starch cells identified as maize starch and the sample was thus found to be adulterated. 2.1. Before the learned Magistrate, testimony of the complainant – Food Inspector Mr. Maganbhai Jadavjibhai Jadav was recorded at exh. 7. During the course of his deposition, relevant documentary evidence was produced. No more witness was examined by the prosecution before the learned Magistrate. After appreciating the evidence on record and hearing arguments advanced by both the parties, the learned Magistrate, by virtue of the impugned judgment and order, came to the conclusion that the prosecution failed to prove beyond reasonable doubt the charges levelled against the accused and the accused came to be acquitted. 3. On behalf of the appellant – State of Gujarat, Ld. APP Mr. CR.A/753/1996 4/25 JUDGMENT MR Mengde, submitted that the order of acquittal passed by the learned Magistrate is contrary to law and evidence on record. That the prosecution successfully proved that the sample of turmeric powder was collected from the shop of the accused and in presence of the accused after following due procedure and undergoing due formalities as prescribed under the Act and the Rules. The sample was duly packed and sealed and the same was forwarded for analysis to the Public Analyst and the sample of turmeric powder was found to be adulterated by the Public Analyst. That during the course of collection of sample, its packing and sealing and in forwarding the sample to the Public Analyst, no provision contained in the Act or the Rules have been violated and all the required procedure was duly undergone by the Food Inspector. Legal and valid consent was obtained from the Local Health Authority as provided under section 20 of the Act for launching the prosecution against the accused. The learned Magistrate erred in coming to the conclusion that mandatory requirements as laid down under the Act and the Rules have not been duly complied with by the Food Inspector at the time of collection of sample, its packing and sealing and while forwarding the sample to the Public Analyst. That in the report of Public Analyst as well as in the report of CFL it is clearly mentioned that the sample was intact and was properly sealed. That, therefore, there was no question of any tampering with the sample of turmeric powder. The CR.A/753/1996 5/25 JUDGMENT sample was found to be fit for analysis. It is submitted that merely because the prosecution could not examine Panch witness in this case, it can never be a ground for acquitting the accused from such serious offence. The Food Inspector is responsible public servant. His testimony recorded before the learned Magistrate is beyond any doubt. There was no reason to discard his testimony by the learned Magistrate. Therefore, it was submitted that the learned Magistrate erred in acquitting the accused by virtue of the impugned judgment and order challenged in this appeal and that the appeal be allowed and the impugned judgment and order passed by the learned Magistrate be set aside and the accused be appropriately punished in accordance with law for the offences committed by him. 3.1. On behalf of the respondent – accused, learned counsel Mr. DK Modi, supporting the impugned judgment and order passed by the learned Magistrate submitted that the learned Magistrate not at all erred in coming to the conclusion that the prosecution failed to establish the charge pertaining to the offence under the Act beyond reasonable doubt. That in the impugned judgment and order the learned Magistrate rightly observed that certain mandatory formalities required under the Act and the Rules have not been complied with by the Food Inspector at the time of collection of sample of turmeric powder, its packing and sealing and while forwarding the sample to the concerned laboratory for analysis. CR.A/753/1996 6/25 JUDGMENT 3.2. Learned counsel Mr. Modi further submitted that the procedure prescribed under rule 14 of the Rules required to be undergone at the time of collection of sample, the procedure prescribed under rule 16(b) of the Rules while packing and sealing the sample and the procedure prescribed under section 13(2-B) of the Act to be undergone by a concerned Magistrate while forwarding sample to CFL, are mandatory in nature and the non-compliance of which is held to be fatal to the case of prosecution by various decisions of this Court. That it has come in evidence that all the above mandatory formalities have not been complied with by Food Inspector Mr. Jadav and even while sending sample to CFL by the concerned Court. 3.3. It is further submitted that the consent for launching the criminal prosecution for the offence under the Act as envisaged under section 20 of the Act is not legal and valid. That in the instant case, the respondent – accused preferred to have a sample of the turmeric powder to be examined by CFL and, therefore, the report of the Public Analyst was superseded by the analysis report of CFL, but in both the reports, the sample was tested only by means of microscopic test, which test is held to be unreasonable, unscientific and not in conformity with the Rules. 3.4. Learned counsel Mr. Modi elaborately and in detail, argued the above points, citing judgments delivered by this Court, which shall be discussed in this judgment, at its appropriate time to avoid further CR.A/753/1996 7/25 JUDGMENT repetition. Therefore, learned counsel Mr. Modi submitted that there is nothing on record to come to the conclusion that the impugned judgment and order delivered by the learned Magistrate acquitting the accused from the offence punishable under the provisions of the Act is perverse or contrary to any material on record or palpably wrong or manifestly erroneous or demonstrably unsustainable. Therefore, it is submitted that the appeal be dismissed. 4. This Court is taken through the record and proceedings and relevant papers thereof and the judgment of the trial Court and considering the rival submissions on behalf of the parties, what is required to be considered is as to whether at the time of collection of sample of turmeric powder or at the time of its packing or sealing or while forwarding the sample to concerned laboratory for analysis whether any technical formalities required either under the Act or the Rules have been complied with or not. Upon appreciation of evidence on record, if it is found that such technical formalities have not been complied with, then whether such technical formalities are mandatory or not and if they are mandatory and breach of such formalities is established on record, then what would be its effect upon the case of the prosecution, are the important issues involved in this appeal. Perusing the impugned judgment and order passed by the learned Magistrate, it appears that the learned Magistrate has considered this aspect of the CR.A/753/1996 8/25 JUDGMENT matter and ultimately acquitted the respondent accused. The State challenged said findings of the learned Magistrate before this Court in this appeal. 5. Therefore, it becomes necessary to re-evaluate and re- appreciate the reasons recorded by the trial Court in the light of the evidence on record in order to come to a conclusion whether the finding of acquittal has been correctly recorded. This exercise has to be undertaken keeping in mind the principle of law laid down by the Hon'ble the Supreme Court as applicable to an appeal against acquittal. As held in the case of Ramesh Babubhai Doshi v/s. State of Gujarat reported in (1996) 9 S.C.C. 225, the appellate Court generally would not interfere with an order of acquittal unless it is found that the judgment of the trial Court is palpably wrong, manifestly erroneous or demonstrably unsustainable, perverse or contrary to the material on record. Further as laid down in the case of Kaliram v/s. State of Himachal Pradesh reported in AIR 1973 S.C. 2773 where two views are possible on the evidence adduced in the case, one leading to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Bearing in mind the above principles, this Court is required to decide whether the respondent accused has been rightly acquitted of the charges of the offences punishable under section 16 read with section 7 of the Act. CR.A/753/1996 9/25 JUDGMENT 6. Learned counsel Mr. Modi submitted that there is apparent non-compliance of rule 16(b) of the Rules about packing and sealing the samples of turmeric powder. It is submitted that this is a mandatory provision and breach of such provision creates doubt about the case of the prosecution and resultant effect is acquittal of the accused. To appreciate such submissions, first of all it is necessary to consider sub- clause (b) of rule 16 of the Rules, which reads as under :- “16. Manner of packing and sealing the samples.- All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely : [a] xxx xxx xxx xxx [b] the bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive; [c] xxx xxx xxx xxx” In light of the above provision, it is necessary to consider the evidence on this point in our case. The Food Inspector Mr. Jadav in his deposition exh. 7, about the packing and sealing of the samples in para. 7 of his examination-in-chief, stated that labels were affixed on the sample bottles and the seals were affixed on the ends of the labels and wrapped in thick brown paper. Now as per rule 16(b), it is clearly provided that the bottle, jar or other container, shall then be completely wrapped in fairly thick paper. Over and above this, it is provided that the ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive. Perusing the impugned judgment, it transpires that the learned CR.A/753/1996 10/25 JUDGMENT Magistrate dealt with this aspect of the matter in detail. The learned Magistrate, on the basis of the evidence on record, observed that in the instant case the Food Inspector has not complied with the requirement that the ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive. He observed that the Food Inspector only deposed that the labels were affixed on the sample and seals were affixed on the ends of the labels and the samples were wrapped in a thick brown paper. To have complete compliance of the technical formality as envisaged under rule 16(b) of the Rules, this is not sufficient, but over and above this, the Food Inspector should have neatly folded the ends of the paper and should have affixed by means of gum or other adhesive, the ends of the paper. Learned Magistrate relied upon a judgment rendered in the case of State of Gujarat v. Shri Arjanbhai Bhavanbhai decided by this Court in Criminal Appeal No. 1101 of 1983 on 26/12/1991. Perusing the judgment delivered in the said case, it becomes clear that there was partial compliance of rule 16(b) of the Rules, in the sense that the Food Inspector had wrapped the bottle in fairly thick paper, but the ends of the paper were not folded in or were not affixed by means of gum. It was held in the said case that requirement contemplated under rule 16(b) of the Rules is a mandatory requirement and further held that if mandatory requirement is not followed, then obviously benefit is required to be given to the accused. In CR.A/753/1996 11/25 JUDGMENT the result, the judgment and order passed by the concerned Magistrate whereby the respondent accused of said case was acquitted, was confirmed by this Court. In the case on hand, the ratio laid down in the aforesaid case has been followed by the learned Magistrate. 6.1. Even considering the case of State of Maharashtra v. Ritesh Kumar Dhanji reported in 1982 (I) FAC p. 361 referring rule 16 (b), Bombay High Court held that if the Food Inspector does not take the proper precaution, the accused is certainly entitled to the benefit of doubt. Identical observation was made by Madras High Court in the judgment rendered in the case of Ramalingam v. Food Inspector, Nagapattinam Municipality reported in 1986 (II) FAC p. 280 wherein it was held that the requirement laid down under rule 16 are mandatory and the violation of the provisions vitiate the entire trial. Provisions contained under rule 16 are held to be mandatory and non-compliance by Food Inspector creates doubt about the case of the prosecution and the benefit should go to the accused is also laid down by this Court in the case of Jethalal Lallubhai v. Baroda Municipal Corporation reported in 1978 G.L.R. p.448. 6.2. Therefore, in nut-shell, it cannot be said that the learned Magistrate in the impugned judgment committed any illegality or irregularity or any error in coming to the conclusion that there is breach of the mandatory requirement laid down under rule 16(b) of the Rules. CR.A/753/1996 12/25 JUDGMENT The learned Magistrate in arriving at such conclusion, not only relied upon the provisions contained in rule 16 (b) of the Rules and the judgments delivered earlier by this Court, but even the evidence on record in our case. 7. Learned counsel Mr. Modi argued that in the instant case there is non-compliance of rule 4 (4) of the Rules. Rule 4 pertains to analysis of food samples. The relevant provisions of sub-rule (4) of rule 4 reads as under :- “4. Analysis of food samples.- [1] xxx xxx xxx xxx [2] xxx xxx xxx xxx [3] xxx xxx xxx xxx [4] On receipt of a package containing a sample for analysis, the Director or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.” 7.1. Learned counsel Mr. Modi submitted that in the instant case, on the basis of the report of the Public Analyst, the sample of turmeric powder was found adulterated and complaint was filed by the Food Inspector against the accused. Soon after the filing of the complaint, the accused applied under section 13(2) of the Act to get the sample of the food article – turmeric powder to be analysed by the CFL. That accordingly the trial Court sent sample to the CFL for analysis. The report of the Public Analyst is produced in the record of the trial Court at exh. 21 and the report of the CFL is produced at exh. 48. Now as stated CR.A/753/1996 13/25 JUDGMENT above, perusing rule 4(4) of the Rules, as soon as the sample is received in CFL the Director or officer authorised by him, shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. It is clear that once the accused exercises his right to get the sample analysed by CFL and the report of the analyst of CFL is received by the trial Court, report of the Public Analyst is superseded by the report of CFL. Now the report of the CFL exh. 48 is to be considered on this point; it is stated that the seals on outer cover of sample parcel were also intact and tallied with the specimen impression of seal given on copy of memorandum forwarded separately. There is nothing in the report that seal on container was compared with the specimen impression of seal forwarded separately by the trial Court. Seal on outer cover is only compared. Seal alleged to have pasted on the container is not compared; otherwise in report exh. 48 Director of CFL would have clearly mentioned about it. 7.2. Learned counsel Mr. Modi relied upon a decision rendered in the case of C C Christian v. P S Parmar reported in 1992 (1) G.L.R. p.434. Perusing the aforesaid decision, it appears that accused in said case was convicted for offence punishable under section 16 read with section 7 of the Act. In said case, on the basis of evidence on record and considering the note in the CFL report and relying upon rule 4 (4) of the Rules, it was observed that it is mandatory on the part of the Director of CR.A/753/1996 14/25 JUDGMENT CFL to compare the seals on the container and the outer cover of the packet. That requirement is mandatory. In para. 13 of said judgment, it was observed that the provision contained in rule 4(4) of the Rules is a special safeguard and this special safeguard the accused will lose when the specimen impression of the seal sent to the Director separately is not compared by him before the analysis of the sample. Comparison of the seal assumes greater significance in cases under the Prevention of Food Adulteration Act. Ultimately, it was observed as under :- “....... I have no doubt in my mind that all provisions of law which relate to it and which confer even the smallest safeguard on the accused must be construed strictly and not liberally. In my opinion, therefore, non-comparison of the seal as stated above has affected the evidentiary value of the Certificate issued by the Director, Central Food Laboratory and thus, the conviction based upon it cannot be sustained.” 7.3. Learned counsel Mr. Modi relied upon a decision rendered in the case of Laxmichand Bhailal Thakker v. State of Gujarat reported in 1995 (2) G.L.R. 1528 wherein also referring rule 4 of the Rules, this Court held that the provisions contemplated under this rule are mandatory and non-compliance vitiates the trial against the accused. 7.4. In the decision rendered in the case of State of Gujarat v. G B Mansuri reported in 2005 (3) G.L.H. 409 it was held that rule 4 of the Rules read with section 13 (2-B) of the Act contemplate mandatory requirements and the non-compliance thereof would make the report of CFL inadmissible. CR.A/753/1996 15/25 JUDGMENT 7.5. Therefore, it is also necessary to consider whether the provisions contained in section 13 (2-B) of the Act are strictly complied with or not. As discussed above, as per sub-section (2) of section 13 of the Act, a right is conferred upon the accused to get the sample of the article of food to be analysed by the CFL. The accused is required to file an application before the trial Court to exercise such right. It is the duty of the trial Court to call for one of the samples lying before Local Health Authority and upon such requisition being made by the Court, the said Authority is required to forward the part of the sample to the Court. After the sample is received by the Court, what the Court should do and how such sample is required to be forwarded to CFL by the Court, is elaborately provided in sub section (2-B) of section 13 of the Act. The relevant part reads as under :- “13. Report of Public Analyst .- [1] xxx xxx xxx xxx [2] xxx xxx xxx xxx [2-A] xxx xxx xxx xxx [2-B] On receipt of the part or parts of the sample from the Local Health Authority under sub-section [2-A], the Court shall first ascertain that the mark and seal or fastening as provided in Cl. (b) of sub-section [1] of Sec. 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.” As stated above, after verifying the seal, etc., on the sample received by CR.A/753/1996 16/25 JUDGMENT the Court from the Local Health Authority and ascertaining that the seals are not tampered with, the Court shall despatch the sample under its own seal to the Director of CFL, who shall thereupon send a certificate to the Court in the prescribed form. In this connection, while discussing the provisions contained in rule 4(4) of the Rules and considering the note made by the Director of CFL in his report produced at exh. 48, it was seen that the Director only compared seal on the outer cover of the sample, but seal on the container was not compared. Learned counsel Mr. Modi submitted that perusing the entire record of the case, there is nothing that while forwarding the sample to the CFL the