Gujarat High Court
Vishnuprasad C. Dodiya vs Proprietor, Sureshkumar Mohanlal ... on 2 March, 1993
Equivalent citations: 1994CRILJ825, (1994)1GLR487
JUDGMENT K.J. Vaidya, J.
1. This appeal by the Food Inspector Mr. Vishnuprasad C. Dodiya,original complainant, is directed against the impugned judgment and order of acquittal, dated 28-3-1984, rendered in Criminal Case No. 781 of 1979 by the learned J.M.F.C., Bhavnagar, wherein the respondent --Surendrakumar Mohanlal Thakkar, who came to be tried for the alleged offences punishable under relevant provisions of Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 (for short "the Act"), was at the end of trial ordered to be acquitted.
2. According to the Food Inspector Mr. V.G. Dodia (PW 1, Exh, 24), the respondent Surendrakumar M. Thakkar, was at the relevant time, proprietor of 'Jay Jalaram Dairy Farm" and was doing the business of selling milk and the milk products at his shop situated at Vadva Paliyadhar Market at Bhavnagar. Further, according to the Food Inspector, Mr. G. T. Kareliya, Health Officer, Bhavnagar Municipality had called him and one another Food inspector namely J.T. Trivedi and directed them to collect the samples of milk being sold in the market regarding which there were some complaints that the formulin was added in it. Accordingly on 25-1-1979 at about 10.30 a.m., after requisitioning the services of panch Batukbhai Mohanbhai (PW 2, Exh. 76), he went to the shop of respondent-accused where he was found sitting and selling the milk. After formally introducing himself, Food Inspector informed the respondent that he had come to collect the sample of milk for the purpose of analysis. Thereafter, on inspecting the shop, 8 litres of milk in a brass can (pavali) was found, which according to the respondent himself was skimmed milk. Thereafter, after performing rest of the necessary statutory formalities under the said Act and the rules made thereunder, milk sample was seized and sealed in the presence of Panch witness and was sent to the Public Analyst, Bhuj with a forwarding letter dated 25-1-1979 (Exh. 61). In the said forwarding letter, in column of "Sr. No.", the sample came to be described as D-17/5(IV)(I). After the said sample was analysed, the report regarding the same was sent back to the Food Inspector where in Column of "Sr. No.", the said sample came to be described as D-17/5(IV)(I). According to the report of the Public Analyst (Exh. 67) the sample was found to be misbranded and did not conform to the standard laid down under the Prevention of Food Adulteration Rules, 1955. On the basis of this Analyst report, Food Inspector after obtaining the necessary sanction (Exh. 68) from the Local Health Authority, filed a criminal complaint dated 6-4-1979 (Exh. 1) against the respondent for the alleged offences punishable under the relevant provisions of Sections 7 and 16 of the said Act before the learned J.M.F.C., Bhavnagar, who after registering the same as Criminal Case No. 781 of 1979, issued summons to the respondents to face the trial.
3. At trial, the respondent pleaded not guilty and claimed to be tried. His case was that of total denial.
4. The trial Court after duly appreciating the prosecution evidence brought on the record, acquitted the respondent on several grounds, the principal ground amongst them was the fact that the sample which in the first instance came to be collected from the shop of respondent and thereafter sent to the Public Analyst for examination and ultimately came to be deposed to before the Court was not the same one. Thus, it was because the identity of the sample taken, thereafter analysed by the Public Analyst and ultimately deposed to before the Court by Food Inspector was not established to be one and the same one only, that the trial Court appears to have given the benefit of doubt to the accused.
5. On going through the Examination-in-Chief of the Food Inspector, it transpires that he has produced a copy of forwarding letter dated 25-1-1979 (Exh. 61) and the report of Public Analyst (Exh. 67) on the record. When these two documents viz., Exh. 61 and Exh. 67 respectively are compared and verified, it further clearly appears that there is no variance in describing the said sample in each of these two documents. In other words, both -- the forwarding letter (Exh. 61) and Report (Exh. 67) clearly vouchsafe the identity of muddamal sent by Food Inspector for analysis and the one that ultimately came to be analysed by Public Analyst and reported to the Food Inspector as the same one. However, for whatever reasons, the Food Inspector while giving evidence before the Court and referring to the serial number of the sample and describing it as the particular serial number, some mistake appears to have taken place. If we minutely peruse the documents Exhs. 61 and 67, the serial number mentioned therein is described as D-17/5(IV)(I) in English. While taking down the same in Gujarati, it came to be recorded as "**". This is how, there is a patent inconsistency in referring the muddamal sample before the Court in place of the one that was forwarded to and ultimately came to be analysed by the Public Analyst. In short, what is referred to as "serial number" of the sample by Food Inspector in his evidence before Court is not the one and the same which was forwarded to the Public Analyst and which ultimately came to be analysed. When such is the conflicting position, it is indeed difficult to connect the respondent with the crime alleged against him. When Mr. A. R. Thakkar, the learned advocate for appellant was confronted with the above glaring confusion, he was not in a position to stear clear of it to set at rest insurmountable controversy. It is indeed quite difficult for this Court also to express any opinion at this juncture, as to whether it was some honest, bona fide mistake on the part of the Food Inspector while describing the Serial Number of the sample before the Court, as the one and one which was referred to in the forwarding letter (Exh. 61) and ultimately came to be analysed and so reported in Exh. 67 or whether it was a mistake on the part of the learned Magistrate while recording the deposition of the Food Inspector that somehow he failed to correctly write the serial number of the sample. It is indeed too late in the proceedings i.e., after 13 long years to get the position clarified, if at all it was possible. The only post-mortem of the event that has by-passed when made, it appears that had indeed following three-fold care and circumspection observed namely: (i) In the first instance, by the Food Inspector while giving the evidence before the Court to have specifically referred to the Serial Number of the milk sample as the one shown in the forwarding letter (Exh. 61) and the report of Public Analyst (Exh. 67) by specifically pointing out to the Court the description of the said Serial Number noted down in English in the said two documents and got it reproduced that much part in English only and if for whatever reasons, the Food Inspector was not that much clear when he gave his evidence, then in that case, (ii) In the second instance, while recording the deposition of Food Inspector, when he came to depose about the Serial Number of the sample, the trial Court should have just looked into the forwarding letter (Exh. 61) and the report of Public Analyst (Exh. 67) and after clarifying the position, recorded the correct Serial Number of the sample in the evidence. (iii) Further assuming that both, the Food Inspector while giving his deposition before the Court, and thereafter, the learned Magistrate while taking down the same for whatever reasons failed on their respective part to evince desired care and circumspection as set out in Clauses (i) and (iii) above, then at least after completing the recording of deposition of the Food Inspector, had indeed the learned Magistrate discharged his statutory duty of reading out the text of evidence of the Food Inspector; as warranted under Section 278 of the Cr. P. C., the Haw which has rightly or wrongly crept-in in the evidence could have been corrected and set right. This could have been so because after completing the recording of the evidence, by giving an opportunity to the witness to read and or hear and then to understand and verify his deposition given before the Court, the witness could have possibly corrected the mistake, if at all made either by himself or by the Court while taking down the evidence and get it set-right by giving the correct serial number. This care is unfortunately not evinced. In fact, it was only with a view to meet with such an eventuality only as the one that has surfaced in the instant case that the legislature in its wisdom had thought it fit to have special Chapter XXIII engrafted in the Criminal Procedure Code, under the caption "Evidence in Inquiries and Trials" -- A --mode of taking and recording evidence -- by ingrafting Section 278 wherein specific directions have been given by laying down the procedure as to what the trial Courts are required to do after the evidence of witness was completed. The said Section 278 of the Code reads as under : --
Procedure in regard to such evidence when completed
278. (1) As the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, in the record shall be interpreted to him in the language in which it was given, or in a language which he understands.
The object underlying Section 278 of the Code is to obtain an accurate record of what a witness really means to say and to give him an opportunity of correcting his evidence taken down by the Court, if any. In fact, it is incumbent upon the learned Magistrate to read over the deposition to each witnesses, after his evidence is over. On examining the original record, it appears that the care which | was required to be specially taken by virtue of provisions contained in Section 278 of the Code has not been taken at all in the instant case. In every criminal trial, after the evidence is completed, as a matter of legal course, at the foot of it, there is always an endorsement to be made and duly signed by the learned Magistrate/Judge to the effect that the evidence has been read over to the witnesses. This particular endorsement is patently wanting in this case. If indeed this statutory care was taken by the learned Magistrate, the discrepancy which has occurred in the course of recording evidence of the Food Inspector, perhaps, would not have taken place because immediately on reading out the evidence, the Food Inspector would have pointed out the mistake (if at all a mistake) by stating the correct Serial Number in place of the incorrect one. May or may not be that the Food Inspector appears to have committed some bona fide mistake, but that does not and cannot absolve the learned Magistrate before whom his evidence came to be recorded, from reading out the evidence to the Food Inspector which as stated above might have corrected and improved the situation. It is quite true that once the forwarding letter (Exh. 61) and the Analyst Report (Exh. 67) refers to the Serial Number of sample as D-17.5(IV)(I) ordinarily what was referred to by the Food Inspector in his evidence before the Court was the very same Serial Number of the sample, and yet we find that is not the serial number of sample in evidence. Under such circumstances, it is not advisable for this Court to bridge the discrepancy by inferential engineering. It is unfortunate that the offenders of the social beneficial piece of legislation like the one under Food Adulteration Act goes scot-free on the sole ground of an avoidable mistake committed in the instant case either by the Complainant-Food Inspector and/or in the second instance by the learned Magistrate. From the provision contained in Section 278 of the Code it could be seen that the same pertains to the precious right of the witness to be informed and apprised of what he has deposed before the Court in order to check and verify his own evidence before the Court and to see that by mistake even, the agency taking down evidence has not committed some honest, bona fide mistake in recording the same, as it was deposed to. Such precious right of the witness is not an idle formality and mechanically to be endorsed by way of foot-note at the end of the deposition. As stated above even this much is not done in the instant case. In fact, in order to avoid such eventualities as the one that has taken place in the instant case and further to protect the right of witness, the Court also in hot haste should not mechanically endorse the foot-note statement that the evidence has been read-out and explained to the witness without in fact reading it some time. In order to carry out the object of the said provision, the same should be complied with in its true letter and spirit. This Court hope that all concerned Courts will take a serious note of this important provision engrafted in Section 278 of the Code and would further see that by chance even such an eventuality; as the one noted in the instant case, does not take place in future, as even the little carelessness and undue over haste can tilt the scale of justice into injustice. After recording of evidence is over, having regard to the object underlying Section 278 of the Code, once again reading out the same to the witness is not only their paramount right but the same is also corresponding and equally important duty of the Court. In order to safeguard the overall interests of justice, that is to say on the one hand to protect the interest of prosecution, and for that purpose interest of defence also, as not to suffer any prejudice for non-compliance of Section 278 of the Code, would not it be quite desirable to have a 'Public Notice' prominently displayed right before the eyes of witness, near the Witness Box informing all the witnesses regarding their invaluable right to read over their deposition after the completion of the same? If before a witnes starts giving evidence before the Court, administering the Oath to him is an unavoidable legal requirement to be performed by every Court for the purposes of making him conscious of his duty to speak truth, similarly also, on completion of his evidence, it is equally the duty of the Court to inform and explain the witness as to what has been taken down by way of his evidence by reading-over the same, before the learned Magistrate endorses his signature.
6. In the result, this appeal fails and is dismissed.