Gujarat High Court
H A Shah Food Inspector (Retired) vs Kanaiyalal Ragiladas Vankawala & ... on 26 March, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.A/256/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 256 of 2005
With
CRIMINAL APPEAL NO. 257 of 2005
With
CRIMINAL APPEAL NO. 625 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 or any order
made thereunder ?
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H A SHAH FOOD INSPECTOR (RETIRED)....Appellant(s)
Versus
KANAIYALAL RAGILADAS VANKAWALA & 1....Opponent(s)/Respondent(s)
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Appearance:
MR KI SHAH, ADVOCATE for the Appellant(s) No. 1
MR DK MODI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR MD MODI, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MS. HANSA PUNANI, APP, for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 26/03/2015
ORAL JUDGMENT
[1] The present acquittal Appeals have been filed by the Page 1 of 7 R/CR.A/256/2005 JUDGMENT appellant-original complainant, H. A. Shah (Food Inspector), against the Judgment and order dated 07.09.2002 rendered by the learned Additional Sessions Judge, Surat, in Criminal Appeal Nos. 38,39 and 40 of 2000. The aforesaid Criminal Appeals arose from the Judgment and order of Conviction passed by the learned Judicial Magistrate First Class, Municipal Court, Surat in PFA Case No.33 of 1994, wherein, the respondentsaccused were convicted for the offence punishable under Sections7(ii) read with Section 16 of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo simple imprisonment of 2 years with fine of Rs.5,000/, in default of payment of fine, further simple imprisonment of 4 moths.
[2] According to the prosecution case, complainantH.A.Shah, Food Inspector who was notified Food Inspector of Surat City are and he obtained sanction to file complaint against the respondents accused. Accused No.1 was carrying a business in the name and style of Ankit Traders whereas accused No.2 was manufacturing and selling Mango Pulp in the name and style of Murohi Food Products and accused No.3 were selling the said Mango Pulp in bulk, which were manufactured by accused No.2. On 20.11.1991, when the complainant was on his duty at Nanpura area the at round about 11:00, visited the place of original accused No.1, where different food items such as spices, Mango pulp and pickles etc were stored and sold to customers. He called one person as panch, who found owner of the Ankit Traders. On being asked by tthe complainant regarding the licence of trading, accused No.1 shown receipt dated 04.12.1990 duly filled up to get the licence.
Page 2 of 7R/CR.A/256/2005 JUDGMENT Then, the contents which were produced by original accused No.2 and sold by accused No.3 (Murohiz Alphaza Mango PulpSweet end), were taken in three bottles each of 1 Kg. Original accused No.1 was also informed by the complainant and the complainant decided to purchase the samples for analysis and the same was sent for analysis. Then, he followed the procedure as per the provision of law and the sample was sealed and seized. Then, report was obtained. As per Rule29, the complaint was filed by the complainant and sanctioned was obtained. Then, warrant against the respondentsaccused were issued and chargesheet was filed against the respondentsaccused for the offence punishable under Sections7(ii) read with Section16 of the Prevention of Food Adulteration Act, 1954 before the learned Judicial Magistrate First Class, Municipal Court, Surat, which was numbered as PFA Case No.33 of 1994. Then charge was framed and plea was recorded. Arguments were heard and statements of accused under Section 313 of the Cr.P.C. were recorded. The learned Judicial Magistrate First Class, Municipal Court, Surat convicted the respondents accused and sentenced to undergo simple imprisonment of 2 years with fine of Rs.5,000/, in default of payment of fine, further simple imprisonment of 4 moths.
[3] In support of the prosecution case, prosecution has examined
oral evidences:
Sr Exh. Name of Witness
No
1 12 Harishbhai Amrutlal Shah
2 130 Jagannath Patil
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R/CR.A/256/2005 JUDGMENT
[4] In support of the prosecution case, the prosecution has
produced several documentary evidences like copy of gezett showing the name of Food Inspector at Exh.14, copy of gezett declaring the Municipal Commissioner as LHA at Exh.14, copy of gezzet to file complaint under Section20 of the Act at Exh.15 and etc. [5] The order of convocation was challenged by the respondents accused before the Session Court, Surat by way of Criminal Appeal Nos. 38, 39 and 40 of 2000. Learned Additional Sessions Judge, Surat considered the evidence of the prosecution as well as defence version of the respondentsaccused and observed that prosecution could not prove mandatory provision of law and vide order dated 07.09.2002, acquitted all the respondentsaccused from the charge levelled against them and set aside the order of learned Judicial Magistrate First Class, Municipal Court, Surat. Against the order of acquittal, the present appeal has been filed by the complainant.
[6] Heard Mr.Masoom Shah, learned counsel with Mr.K.I.Shah, learned advocate for the complainant and Mr.Modi, learned counsel for the respondentsaccused and Ms.Hansa Punani, learned Additional Public Prosecutor for the respondentState.
[7] During the submission, Mr.Modi, learned counsel for the respondentsaccused drew attention of the Court to the death certificate of accused of Criminal Appeal No.625 of 2006 Mr.Kanchanlal Nagarji Desai and contended that he expired on 05.08.2013 and his death certificate is also produced on record.
[8] Mr.Masoom Shah, learned counsel with Mr.K.I.Shah, learned
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R/CR.A/256/2005 JUDGMENT
advocate for the complainant submitted that in present case, allegation against the respondentsaccused were proved beyond reasonable doubt through oral and documentary evidence before the learned Judicial Magistrate First Class, Surat, and respondents accused were rightly convicted. But learned Sessions Judge, Surat set aside the order of conviction and wrongly acquitted the respondentsaccused from the charge levelled against them. He vehemently argued that primafacie, it appears that learned trial Judge committed a grave error and therefore, judgment and order of the learned Sessions Judge, Surat is required to be quashed and set aside and judgment and order of the learned JMFC, Surat is required to be confirmed.
[9] Mr.Modi, learned counsel for the respondentsaccused drew attention of the Court to the judgment and order of this Court dated 13.07.2011 passed in Criminal Appeal No.756 of 2011, wherein, this Court has observed that the learned Sessions Judge rightly considered that use of synthetic food colour is not permitted in eye of Rules. He further drew attention of the Court to opinion of the expert, who has not disclosed as per Foods Products Order, 1955, 2nd Schedule, PartXII, list of permissible harmless food colours, Clause No.3, wherein, it is stated that the maximum limit of any permitted coal tar colours or mixture of permitted coal tar colours which may be added to any fruit products shall not exceed 0.20 grams per kilo gram of the final fruit products for consumption.
[10] In the present case, the report of export is produced on record. He never explained anything regarding the percentage and Page 5 of 7 R/CR.A/256/2005 JUDGMENT he remained silent on the said aspect.
[11] In view of the above observation and prescribed rules, I have minutely perused the judgment and order of the learned Sessions Judge as well as judgment and order of the JMFC, Surat. I am in full agreement with the judgment and order of the learned Sessions Judge, Surat. I have not found any substance in appeal Nos.256 and 257 of 2005. Hence, the present appeal Nos.256 and 257 of 2005 deserve to be dismissed.
[12] In a recent decision of the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 75, the Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision the Court has observed as under:
"16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with."
[13] Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, Page 6 of 7 R/CR.A/256/2005 JUDGMENT reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. Thus, the powers which this Court may exercise against an order of acquittal are well settled.
[14] In view of the above, the Appeals Nos.256 and 257 of 2005 are hereby dismissed. The impugned judgment and order dated 07.09.2002 rendered by the learned Additional Sessions Judge, Surat, in Criminal Appeal Nos. 38, 39 and 40 of 2000, acquitting the respondents-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
[15] In view of above production of death certificate of accused Mr.Kanchanlal Nagarji Desai, Criminal Appeal No.625 of 2006 become infructuous. and the same stands disposed of as having become infructuous.
(Z.K.SAIYED, J.) siddharth Page 7 of 7