CR.A/706/1998 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 706 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 CHAMPALAL GEKCHAND PAREKH & 8 - Opponent(s) ========================================================= Appearance : MR MR MENGDEY Ld. APP for Appellant(s) : 1, MR CH VORA for Opponent(s) : 1 - 9. ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 14/03/2008 ORAL JUDGMENT 1. The appellant – State has preferred this appeal against the judgment and order dated 4.5.1998 passed by the learned Judicial Magistrate First Class, CR.A/706/1998 2/6 JUDGMENT Rahpar, District Kutchh in Criminal Case No. 336 of 1995 acquitting the respondents from the charges levelled against them under sec. 7(1) and 7(5) of the Prevention of Food Adulteration Act, 1954. 2. It is the case of the prosecution that on 14.2.1995, the complainant Shri CP Gohil, Food Inspector, has visited the shop of original accused no. 1 namely Bhagyoday Kirana Stores, situated at Salari Naka, Rahpar, district Kutchh and introduced himself as Food Inspector. Thereafter, in the presence of panch purchased 375 grams of cooking oil from the packed tin of “Flemingo” brand and paid Rs. 15/- and prepared the sample for analysis and on receipt of the report from CLF, he filed a complaint. Thereafter, the present respondents were charged for the offence punishable under sec. 7(1), 7(5) and 16(1) of the PFA Act and the case was proceeded before the learned Judge, where the prosecution has produced oral as well as documentary evidence in support of its case. The learned judge has found no substance in the said Criminal Case no. 336 of 1995 and benefit of doubt was given by the learned Judge and acquitted the respondents from the charges levelled against them. Hence, the present appeal is preferred by the appellant-State against the said acquittal. 3. Heard Mr. M.R. Mengdey learned APP for the appellant – State and learned advocate Mr. CH Vora for the respondents. CR.A/706/1998 3/6 JUDGMENT 4. It is contended by the learned APP that non- application of rules cannot be resulted into acquittal and the same cannot be fatal to the case of the prosecution. Ld. APP has read the oral as well as documentary evidence produced in support of the prosecution case. He has stated that from the oral evidence of the complainant Ex. 50, he has explained everything and from his oral evidence, it was established by the prosecution that all the relevant Rules and mandatory provisions were followed by the complainant and yet the trial court has not applied its mind and acquitted the respondents and, therefore, the judgment and order passed by the trial court requires to be quashed and set aside. 5. Mr. CH Vora learned advocate for the respondents has first read the Rule-13(2B) of the Act and submitted that the said provisions is of a mandatory nature. From the oral evidence of complainant, it is established that he has not mentioned that aspect in the complaint as well as in the panchnama. From the Cross-examination of the said witness, it also appears that the same thing is not narrated in the complaint as well as in panchnama. 6. I have gone through the contentions raised by both the parties and perused the oral as well as documentary evidence. From the oral evidence of the present complainant, it appears that he has fairly admitted in his cross-examination that the vessels CR.A/706/1998 4/6 JUDGMENT were not cleaned at the place and it is not mentioned in the panchanama as well as in the complaint. From the oral evidence of panch witness at ex. 108, it also appears that the panch witness has also not supported the panchnama Ex. 67. The ld. Judge has discussed all the evidence of the prosecution. Section 13(2B) of the PFA Act, reads as under: 13(2B): On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 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.” 7. From the report of CFL, it appears that the same was prepared after 38 days. The provisions of sec. 13(2B) of the Act, which is of mandatory in nature, prescribes time limit of one month. Hence, there is a breach of mandatory provisions of the Act. The decision cited Mr. Vora in the case of State of Gujarat vs. Bhupendra M. Mehta, reported in 2000(1) GLH P. 679, wherein, it is observed by this Court that no specific evidence about sample bottles being dry and clean and the oral evidence found not having properly been taken down, in absence of specific CR.A/706/1998 5/6 JUDGMENT words, Court cannot put in the mouth of the witness which he has not stated and not recorded, the benefit should go to the accused. 8. It is well established by law that breach of mandatory provisions of law would be fatal to the prosecution case. In the present case, it appears that the prosecution has failed to produce evidence to prove that the provisions of mandatory rules have been followed. Mr. Vora learned advocate for the respondents has relied upon the judgment of this Court in the case of State of Gujarat vs. Doshi Chhabildas Shivlal & Ors., reported in 2007(2) GLH 637, wherein, it is observed by this Court that Court cannot go into any other ground when the provisions of mandatory nature are not followed by the prosecution and the acquittal recorded by the ld. Judge cannot be set aside. Rule-14 of the PAF Act is a mandatory provisions and when there was a breach of the said Rule, the acquittal order is proper in eye of law. 9. It is settled legal position that in acquittal appeal, the Appellate Court is not required to re- write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial court while acquitting the respondents – accused and adopting the said reasons and for the CR.A/706/1998 6/6 JUDGMENT reasons aforesaid, in my view, the impugned judgment is just, legal and proper and requires no interference by this Court at this stage. Hence, this appeal requires to be dismissed. 10. In the result, this appeal is dismissed. (Z.K. SAIYED, J.) mandora/