Gujarat High Court
State vs Rajeshbhai on 10 March, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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CR.A/500/1996 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 500 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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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 ?
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STATE
OF GUJARAT - Appellant
Versus
RAJESHBHAI
JAGJIVANDAS THAKKAR & 4 - Opponents
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Appearance :
MR. MAULIK
NANAVATY, LD. APP for Appellant:
MR DK MODI
WITH MR YN RAVANI for Opponents : 1 - 3, 5,
UNSERVED-EXPIRED (N)
for Opponent : 4,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10/03/2010
ORAL
JUDGMENT
Heard learned advocates for the parties.
The appellant State of Gujarat has preferred this appeal under section 378 of Criminal Procedure Code against the order of acquittal dated 27/3/1996 passed by learned Chief Judicial Magistrate, Ahmedabad (Rural) in Criminal Case No. 101 of 1995, acquitting the accused of the charge of committing offence punishable under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as PFAA for brevity).
Facts leading to filing of this appeal deserve to be set out as under:
The original complainant Food Inspector while discharging his duties as such on 3/6/1994 at about 11.00 hours visited Hinglaj Trading company situated at Ghatlodiya, Ahmedabad. He had taken along with him one Saumil Valjibhai Patel as panch witness. One Kirtibai Kantilal Bhavsar was found to be at the shop premises, who identified himself to be the owner of the said shop and said that there was no partners. After introducing himself as Food Inspector and notifying his intention to collect the sample, collected sample of groundnut oil from the sealed packed tin of 5 liter Dharti Brand groundnut oil. Before collecting the sample, Rule 6 notice came to be issued. The sample was collected after properly mixing the oil lying in the container. The lid of the tin was of the 'press lid' popularly known in common parlance as Pres Tikdi . Double filtered Dharti brand groundnut oil was mentioned on the label. Label also contained that it was packed in May 1994 and batch number was 206. After completing the formalities of collecting the sample, distributing, sealing, packing, attaching and affixing signature etc. one sample was sent to Public Analyst for examination and remaining 2 samples were sent to Local Health Authority (LHA). Notice was issued to Liladhar Vaghjibhai by registered post AD and as sample was found to be not in conformity with the standards laid down, after obtaining requisite sanction for lodging prosecution, prosecution came to be lodged. Requisite notices were sent. Charge was framed, on plea of not guilty to the charge, trial begun. The trial court at the end of trial came to the conclusion that the prosecution could not prove its case and hence court passed acquittal order vide order in judgment dated 27/3/1996, which is impugned in this appeal under section 378 of Criminal Procedure Code.
Shri Nanavaty, learned APP appearing for the State submitted that the order of acquittal is required to be quashed & set aside as the court has not appreciated the evidence in its true perspective. However Shri Nanavaty could not controvert the proposition of law canvassed on behalf of the respondents in respect of glaring lacuna in respect of the methodology / procedure for collecting sample, non proving of service of notice by respondent no. 2 to 6 under section 13(2) and not supplying copy of public analyst's report to respondent no.2 to 6.
Shri Modi, learned counsel for Shri Ravani for the respondents submitted that there was clear breach of method of collecting sample of oil which has rendered the prosecution case vulnerable. Shri Modi submitted that though it has come out in the complaint as well as testimony of the complainant that before taking the subject sample of oil the container containing oil was shaken but that in itself is found to be insufficient evidence as there was no evidence indicating clearly that prior to the sample was taken from the tin the entire oil was stirred as to make the entire lot of oil homogeneous and make it representative of entire quantity. Shri Modi relying upon decision of this Court in case of STATE OF GUJARAT Vs. LAGHADHIRBHAI VAGHJIBHAI PRAJAPATI, reported in 2008 (1) FAC 381, in particular on the observation made in para no. 10, wherein the Court did not accept shaking of container where from sample was collected to be sufficient for compliance with the method as proper method. In that case as it is observed in para no. 10, the Food Inspector had deposed that before collecting sample of oil, tin containing oil was shaken properly, but said deposition was not accepted and the Court said that there ought to have been evidence with regard to stirring of the entire oil so as to make it homogeneous.
Shri Modi for the respondents has in support of his submission relied upon a decision of this Court in case of STATE OF GUJARAT Vs. LALJIBHAI ISHWARBHAI ZALA AND ANOTHER, reported in 2007 (2) FAC 19; another decision of this Court (Coram: J.C. Upadhyaya, J) decided on 28/11/2008 in Criminal Appeal No. 864 of 1997; as well as the decision of this Court (Coram: S.R. Brahmbhatt, J) decided on 5/3/2010 in Criminal Appeal No. 349 of 2003.
Shri Modi further submitted that the trial court has also recorded in its finding with regard to glaring lacuna in service of notice under section 13(2) to respondent nos. 2 to 6 in as much as the letter addressed by LHA is produced to show the content of the letter as well as other documents which could not be ascertained as to whether the report of public analyst was sent or not. This being one of the glaring lacuna order of acquittal cannot be interfered with under section 378 of Cr.P.C.
Shri Modi has further submitted that one more lacuna with regard to compliance with section 13 (2) of the PFA Act in as much as the postal acknowledgment dues are said to have not been proved and therefore on that count also the order of acquittal can not be interfered with.
This Court heard learned advocates for the parties and perused record & proceedings and the paper book containing relevant documents. Aforesaid 3 lacuna enlisted by Shri Modi are evident from record & proceedings as well as the findings of the court recording acquittal. It is required to be noted that though the complainant Food Inspector had mentioned in his complaint that the container containing entire quantity of oil was shaken properly, but there does not seem to be any evidence with regard to stirring entire quantity of oil and making it homogeneous before the sample was taken therefrom. This serious lacuna on the part of prosecution deserves to be accepted and it has been rightly accepted by the trial court. Trial court's finding with regard to no evidence of supplying copy of Public Analyst Report to respondent nos 2 to 6 again be taken into consideration. Said finding has not been assailed in any manner by learned APP. Non proving of the signature of the accused concerned upon exhibit 43 to 48 is also could not be controverted and no contrary defence is recorded. In view of all above and in view of the principle of law with regard to methodology of collecting sample, this Court is of the view that the order of acquittal recorded by the trial court cannot be said to be so perverse as to call for interference under section 378 of Cr.P.C. Therefore, this appeal fails and accordingly it is dismissed. Bail bonds shall stand cancelled.
[ S.R. BRAHMBHATT, J ] /vgn Top