Gujarat High Court
Shantilal Velji Rajgor vs State Of Gujarat on 20 February, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/284/2005 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 284 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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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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SHANTILAL VELJI RAJGOR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR NALIN K THAKKER, ADVOCATE for the Applicant(s) No. 1
MS JIRGA JHAVERI, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 20 /02/2015
CAV JUDGMENT
Page 1 of 16
R/CR.RA/284/2005 CAV JUDGMENT
1. Heard learned advocate Mr. Nalin K. Thakkar for the petitioner and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the respondent - State of Gujarat, at length.
2. Perused the Record and Proceedings.
3. The petitioner is the original accused in Criminal Case No.796 of 1991, wherein, by the judgment and order dated 30.11.1995, the Court of the Judicial Magistrate First Class, Kachchh at Mandvi, has convicted the petitioner under Section 255(2) of the Criminal Procedure Code for the offence under Sections 2(ia)(m), 7(i), and 7(v) read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act). The conviction is of simple imprisonment for three months with a fine of Rs.500/, and in default of payment of fine, further simple imprisonment for one month.
4. A certified copy of the said judgment shows the endorsement regarding payment of fine of Rs.500/ on the same day. The said judgment has been challenged by the petitioner by filing Criminal Appeal No.48 of 1995, wherein, by the impugned judgment and order dated 16.04.2005, the Additional Sessions Judge, Kachchh at Bhuj, while rejecting the said appeal, has confirmed the conviction, as aforesaid. Hence, the petitioner has preferred the present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973.
5. Therefore, the fact remains that we have to deal with the Page 2 of 16 R/CR.RA/284/2005 CAV JUDGMENT concurrent findings of two lower courts confirming the conviction under revisional jurisdiction of this Court.
6. If we peruse the judgment of the trial Court, it becomes clear that the allegation in the complaint by the Food Inspector is to the effect that the petitioner was dealing with the cotton seed oil, and on 05.03.1991, when the complainant had purchased the refined cotton seed oil from the shop of the petitioner and sent it for analysis, it was found that the refined cotton seed oil sold by the petitioner was adulterated, as provided under Section 2(ia)(m) of the Act. Therefore, criminal proceeding was initiated and the petitioner was tried. On perusal of the said judgment, it becomes clear that the prosecution has examined three witnesses and produced as many as twenty documentary evidences, which includes the Notification, certified receipt of sample by the petitioner, a copy of label affixed on sample regarding parcel, forwarding letter, memorandum form, acknowledgment of registered post, copies of correspondences, receipt of accepting sample by the Public Analysis, report of the Public Analyst, etc.
7. If we peruse the evidence from the record and proceedings, it becomes clear that all the three witnesses, complainant and panch, etc, have categorically deposed in favour of the prosecution's case and proved the same beyond reasonable doubt. The sum and substance of the said evidence is to the effect that though the petitioner was dealing with the refined cotton seed oil, when it was analyzed, it was found adulterated with the castor oil. It is clear and obvious that when the producer has sold the refined cotton Page 3 of 16 R/CR.RA/284/2005 CAV JUDGMENT seed oil, it should not have adulteration of any other type of oil and if at all, any other type of oil is found, then it is nothing but adulteration, as described under Section 2(ia) of the Act, which reads as under:
"2(i) adulterated" an article of food shall be deemed to be adulterated
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;"
8. Therefore, what is required for confirming the conviction under Section 7(i) of the Act, is adulteration of any edible material when sold by a vendor that whether it is not of the nature, substance or quality demanded by the purchaser and is to his prejudice. Whereas the charges are also framed under Section 2(ia)
(m) of the Act, which reads as under:
"2(ia)(m) if the quality or purity of the article falls below the prescribed standard of its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this subclause.
Explanation. Where two or more articles of primary food are mixed together and the resultant article of food
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, Page 4 of 16 R/CR.RA/284/2005 CAV JUDGMENT then, such resultant article shall not be deemed to be adulterated within the meaning of this clause;"
9. Thereby the purity and standard of quality are to be taken into consideration.
10. The trial Court, in its reasoned judgment, has considered that when there is an adulteration in the form of the castor oil in the cotton seed oil and when there is no lacuna in the procedure adopted by the Investigating Officer and when such an adulteration is certainly harmful to the human health, the petitioner has committed an offence as alleged, and hence, he has been convicted, as aforesaid. I have gone through the record and proceedings and the impugned judgment, but I could not find any glaring illegality or irregularity in the impugned judgments of both the trial court and the appellate court.
11. If we peruse the impugned judgment, therein also, the Sessions Court has appreciated the entire evidence, as it was done by the trial court also and the appellate court has framed as many as eight issues for its determination. However, the result of the said issues are negative i.e. against the petitioner. Since all such details are very well disclosed in both the impugned judgments, it would not be necessary to reproduce all the details minutely. But, the fact remains that the Sessions Court, after discussing the entire evidence and submissions of the present petitioner, came to the conclusion that the order of conviction passed by the trial Court is proper and thereby, dismissed the appeal considering the reasoned judgment of the trial Court. Therefore, there is no substance in the Page 5 of 16 R/CR.RA/284/2005 CAV JUDGMENT revision application.
12. However, the learned advocate for the petitioner has tried to emphasise that the petitioner is a poor businessman in a small town, and adulteration, even if proved, though it is submitted that it is not proved, benefit of doubt is to be extended to the petitioner, since it is not a huge quantity or huge adulteration, but minor castor oil was found as its percentage was not disclosed in the report issued by the Public Analyst. It is also submitted that there is contravention of the provisions of Section 13(2) of the Act, by collecting samples from the place of the petitioner and that copy of the report of the Public Analyst was illegible, and that it does not disclose the percentage of the castor oil. Whereas other ingredients of the cotton seed oil are within its limit. Thereby, there is no adulteration, and therefore, the present revision is required to be allowed by setting aside both the judgments of the lower courts under revision, and thereby, acquitting the petitioner from all such charges.
13. In support of his submissions, learned advocate Mr. Thakkar appearing for the petitioner, relied upon several decisions, which are listed as under:
13.1 Dinesh Kumar vs. State of M.P., reported in AIR 2005 SC 1480 = 2004 Supreme Court Appeal Reporter 947, wherein the Hon'ble Supreme Court has held that the conviction is not justified when the Public Analyst has not confirmed the percentage of Kesari Dal in the sample of Besan and how it affects the nature, Page 6 of 16 R/CR.RA/284/2005 CAV JUDGMENT substance or quality of Besan injuriously. However, in the present case, there is no question of percentage of different materials, but as per Section 2(i)(c) of the Act, the question is regarding demand of the purchaser and supply of the vendor to the purchaser. In the present case, when somebody purchase refined cotton seed oil in the name of the cotton seed oil, naturally he wants a pure cotton seed oil without addition of anything. In the present case, sample was found with the added castor oil in the cotton seed oil and hence the percentage of ingredients are not much material.
Thereby, what is received by the purchaser is less value of the cotton seed oil since it is adulterated with other oil, namely, castor oil. Thereby, castor oil may be less, the supplier can save the cotton seed oil adulterated with castor oil. Moreover, in the cited case, particularly, some local rule was operational on the date of the collection of the sample. Whereas there is no such case or evidence in the present case, and therefore, only because of the cited case, it cannot be held that the petitioner has not committed any offence and thereby, he is entitled to acquittal.
13.2 Chimanlal Govindji Thakkar v. State of Gujarat, reported in 1997 (1) GCD 909 (Guj), wherein it is held by the learned Single Judge of this High Court that if the test adopted is not provided by the Legislature and the test report does not give percentage of adulterated material and whether it was injurious to health or not and if there is violation of the provisions under Rule 9A, the conviction is to be set aside. Whereas in the present case, the position is different inasmuch as there is no such question regarding validity of test. So far as percentage and nature of Page 7 of 16 R/CR.RA/284/2005 CAV JUDGMENT adulteration being injurious to the health are concerned, as already discussed hereinabove, the charges are under Section 2 (ia)(a) of the Act, and not for qualitative adulteration. But pursuant to the provisions of Section 2(ia)(a) of the Act, the allegations are for quantitative adulteration, and therefore, the said judgment would not help the petitioner to get rid from the conviction, and it is not applicable to the present case.
13.3 Chhajju Ram v. State of Haryana, reported in 1993 (2) Prevention of Food Adulteration Cases (PFA Cases) page 78, and Mehar Chand v. the State of Haryana, reported in 1993 (2) PFA Cases page 85, wherein both the judgments are dealt with the same issue of similar nature and it is rendered by the same learned Judge of Punjab and Haryana High Court reported in sequence in the same journal, and therefore, dealt with together. In both the said judgments by the learned Single Judge, it is held that if the complaint does not disclose procedural details about raid, gathering samples and details about how the samples were dealt with, etc, then, the complaint is required to be quashed. In both the said judgments, the issue was regarding milk sample and therefore, it is submitted that if there is no evidence that the milk was stirred before sample was taken, the petitioner is entitled to be acquitted. It is therefore submitted, referring the observation that before sample of liquid is taken, it should be stirred and made homogeneous since the liquid contains various constituents in different forms and those are very thoroughly mixed up, but some, though mixed, are lighter and do not have the same specific gravity and weight as the other constituents have. However, the fact Page 8 of 16 R/CR.RA/284/2005 CAV JUDGMENT remains that both the cited cases were relating to the qualitative adulteration. Whereas we are dealing with the quantitative adulteration, and therefore, decision of the learned Single Judge of the Punjab and Haryana High Court acquitting the accused for want of the proforma complaint, is not relevant. In the present case, when two courts below have scrutinized the evidence and confirmed the conviction, there is no substance of such cited cases so as to acquit the petitioner, since there is sufficient evidence on record regarding adulteration, as discussed hereinabove.
13.4 Hanuman v. State of Rajasthan, reported in 1997(2) PFA Cases page 165 and Mangilal v. State, reported in 1988(1) PFA Cases page 195, wherein it is held that the provisions of Section 13(2) of the Act are mandatory and no one can be penalized for noncompliance of a legal provision unless the penalty is provided by or under the law in force. However, it is admitted at the bar by both the learned advocates that in fact, this is not the ground legal position and even if we go through the entire judgments, it becomes clear that it is based upon the specific facts and circumstances of the case on record and cannot be applied mechanically. It is also an admitted position that therefore, several judgments which confirm that the provisions of Section 13(2) of the Act are not strictly mandatory. However, both the said judgments rendered by the learned Single Judge of the Rajasthan High Court which do not inspire confidence as settled legal position, and therefore, I do not rely upon such judgments so as to deviate from the two concurrent findings of conviction against the petitioner and to acquit him when there is positive evidence Page 9 of 16 R/CR.RA/284/2005 CAV JUDGMENT regarding qualitative adulteration in the cotton seed oil dealt with by him.
13.5 In M.B. Risaldar v. Radheshyam Ramdhar Agarwal, reported in 1980 (2) GLR 136, this High Court, while considering Rule 22 of the of the Prevention of Food Adulteration Rules, has held that if there is no evidence that the bottles were cleaned or washed in presence of the Food Inspector and the person who washed the bottles was not examined, then it was not proved that the Food Inspector had proved that the bottles were clean and dry as required under the rules. Suffice to say that such decision would be applicable in the case of qualitative adulteration and not in the quantitative adulteration. Therefore, the said judgment would not help the petitioner confirming acquittal in his favour.
13.6 S. Guin v. Grindlays Bank Ltd, reported in AIR 1986 SC 289, while dealing with appeal against acquittal, the Hon'ble Supreme Court has held that since appeal was pending before the High Court for six years, retrial should not have been ordered even though acquittal was improper, in view of inordinate delay and nature of involvement of offence. The offence was involved in the said case was under Section 341 of the Indian Penal Code and Section 36AD of the Banking Regulation Act regarding obstruction of banking activities by the accused in that case and that too, in appeal against acquittal, and therefore, he cannot be equated with the case on hand, where there are two concurrent findings of conviction and Revision is against the conviction. So far as pendency of revision beyond six years is concerned, it is clear and Page 10 of 16 R/CR.RA/284/2005 CAV JUDGMENT obvious that the entire system is responsible for such delay and therefore, it cannot be said that the law should not take its own course only because of nonavailability of proper infrastructure and support to cope up with the pendency of cases by all the concerned, including the litigants and the advocates; in deciding such pending cases at the earliest. Learned advocate Mr. Thakkar for the petitioner has pointed out that in the present case sample was collected on 05.03.1991, the complaint was filed on 18.07.1991, the first order of conviction is dated 30.11.1995, which was confirmed on 16.04.2005, and now we are in the year 2015 . Thereby, more than twenty three years have elapsed. However, as aforesaid, I do not agree with such submissions, and therefore, acquittal cannot be confirmed only because of such judgment.
13.7 Kailash Chand v. State of Rajasthan, reported in 2014 Cri. L.J. (NOC) 497 (Raj), by a small note, it is only disclosed that in case of adulteration of mustard oil when twenty years were elapsed from the date of incident, and when accused was not habitual offender, probable sentence of six months simple imprisonment was commuted to fine of Rs.6,000/ considering mental agony suffered by the accused and he remained in jail for eight days. However, I could not rely upon such NOC alone, without realizing the facts and circumstances of such case.
13.8 Daulat Ram v. State of Rajasthan, reported in 2014 Cri. L.J. 4113, wherein the same learned Single Judge of Rajasthan High Court has taken the similar view that when eighteen years had elapsed and the accused did suffer mental agony, the sentence Page 11 of 16 R/CR.RA/284/2005 CAV JUDGMENT of six months simple imprisonment commuted to fine of Rs.6,000/. I have gone through the entire judgment and found with due respect that the learned Single Judge of the Rajasthan High Court has basically relied upon the decision of the Hon'ble Supreme Court in the case of N. Sukumar Nair v. Food Inspector, reported in (1997) 9 SCC 101 : 1995 AIR SCW 3229. However, the said judgment of 1995 has been disapproved thereafter by the Supreme Court itself in the following cases, observing that in the case of N. Sukumar Nair (supra), the Supreme Court has exercised its extraordinary jurisdiction and imposed only the sentence of fine. Therefore, it is certain and clear that the same extraordinary jurisdiction cannot be exercised by all the Courts in all the cases without considering the other factual details, and more particularly, the reason for delay which is not attributed either to the complainant or to the Court alone. Moreover, it was observed in some of the cases that strict adherence to the Prevention of Food Adulteration Act and the Rules framed thereunder is essential for safeguarding the interest of consumers of articles of food. Stringent laws will have no meaning if offenders could get away with mere fine. Therefore, the Supreme Court did not find reason to interfere with the sentence imposed in several cases. Therefore, I would rely upon such position rather than the observations in case of N. Sukumar Nair (supra) alone. However, since in all such cases, the Supreme Court has observed that the appellant is free to challenge the order of conviction under Section 433 of the Code of Criminal Procedure. I have no hesitation to observe the same, pursuant to such submissions made by the learned advocate for the petitioner.
Page 12 of 16 R/CR.RA/284/2005 CAV JUDGMENT(i) State of Rajasthan v. Jagdish Prasad, reported in 2009 SCC (Supp) 1416.
(ii) Dayal Singh v. State of Rajasthan, reported in AIR 2004 SC 2608.
(iii) State of H.P. v. Narendra Kumar, reported in AIR 2004 SC 2711.
(iv) Satya Narayan Agarwal v. State of Assam, reported in AIR 2007 SC (Supp) 711.
14. I have also gone through the entire record and proceedings and discussion of evidences by the trial Court as well as the appellate court and I do not find any illegality or irregularity either in the trial itself or in the proceedings or in the decision rendered by both the lower courts.
15. However, one more issue remains to be dealt, when it is submitted by the learned advocate for the petitioner that since report of the Public Analyst was illegible on that count itself is that whether the conviction needs to be set aside confirming acquittal. It is his case that there are catena of judgments to that effect. However, learned advocate Mr. Thakkar for the petitioner has admitted that such issue was never raised before the trial Court through out the trial and till conviction, though copy of report of the Public Analyst was very well provided to the petitioner during the trial. When inquired about the manner in which such report was proved on record, thereby, whether it is proved by admission or by deposition of the witness, though the learned advocate for the Page 13 of 16 R/CR.RA/284/2005 CAV JUDGMENT petitioner is not certain about the fact, he has pointed out that in fact such issue was raised by the petitioner during the pendency of appeal and admission of this revision. However, when such application was dismissed by the appellate court, the petitioner has preferred one Criminal Miscellaneous Application No.9956 of 2003. Even the said application was dismissed by the judgment and order dated 05.12.2003 passed by this High Court, observing that the question with regard to illegibility of copy of report will remain open and it could be decided on the facts of the case while deciding appeal by the Sessions Court. Therefore, it was for the petitioner to agitate such issue before the Sessions Court and if the petitioner has failed to agitate such issue, now he has no reason to agitate such an issue at this stage, more particularly, when the evidence is clear and certain about adulteration. Therefore, there is no substance in the present revision application.
16. The story, history and nature as well as sequence of incidents are well defined in the impugned judgment as well as in revision petition, and therefore, this order is not burdened by its repetition.
17. The jurisdiction of the Court in such revision petitions are limited by the statute itself, thereby primafacie, the Court has to look into the issue regarding irregularity or illegality, if any, committed by the lower Courts while passing the impugned judgments and whether the impugned judgments have ultimately resulted into miscarriage of justice or absolute injustice to the either of the litigant. Therefore, this being the revision against the concurrent order of conviction for examining that whether Page 14 of 16 R/CR.RA/284/2005 CAV JUDGMENT appreciation of evidence by the trial Judge has resulted into miscarriage of justice or not, it is settled legal position that such re appreciation of evidence has to be done with limited jurisdiction and authority so as to verify the irregularity and illegality only and evidence cannot be reappreciated or dealt with, only because of different opinion of the higher Court. Thereby, the higher Court has to be careful while reappreciating the evidence and decision can be interfered only and only if the appreciation of evidence by the trial Judge is absolutely unjust and illegal and without consideration of settled legal position and applicable law. Thereby, only because someone is able to take a different view from the same set of evidence, on such ground alone, the evidence cannot be re appreciated so as to convert the decision. Therefore, when there are clear verdicts by the lower Courts that there is ample and clear evidence so as to convict the petitioner, in such cases, the re appreciation of evidence is to be done with great care and order of conviction can be interfered only and only if there is absolutely no evidence and doubt regarding commission of offence.
18. If we peruse the entire evidence in its totality and if we consider the appreciation of such evidence as discussed by the learned lower courts, though there may be difference of opinion, even if we reappreciate the evidence, it is crystal clear that there is no irregularity or illegality and that the learned lower courts have considered such evidence as cogent and reliable evidence against the present petitioner for confirming their guilt. To that extent, there is no reason to disapprove the appreciation of such evidence so as to interfere the decision.
Page 15 of 16 R/CR.RA/284/2005 CAV JUDGMENT19. In the circumstances, revision is dismissed. The order of conviction of the petitioner is confirmed. However, since the occurrence took place nearly two decades back if the accused petitioner moves the appropriate Government to commute the sentence of imprisonment, the same shall be considered in the proper perspective. For a period of three months, the accused need not surrender to undergo sentence during which period it shall be open to him to move the appropriate Government for commutation. If no order in the matter of commutation is passed by the appropriate Government, the accused shall surrender to custody to serve the remainder of sentence. In that case, the trial Court shall issue a warrant against the petitioner.
20. The petitioner is on bail pursuant to order dated 26.04.2005, however, in view of above directions, such earlier bail order shall remain in force for further three months only and thereafter the bail bond stands cancelled.
21. Rule is discharged.
22. Record and Proceedings be forwarded to the trial Court concerned at the earliest.
(S.G.SHAH, J.) chandresh Page 16 of 16