Gujarat High Court
M A Patel vs Sureshbhai Jogaji Thakore on 22 December, 2022
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 289 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN - Sd/-
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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M A PATEL
Versus
SURESHBHAI JOGAJI THAKORE & 1 others
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Appearance:
MR. HARSH SHAH, ADVOCATE FOR M/S RJ RAWAL ASSOC.
(1987) for the Appellant(s) No. 1
MS SHIVYA A DESAI(5478) for the Appellant(s) No. 1
MR MD MODI(1318) for the Respondent(s) No. 1
MS. ASHMITA PATEL, APP for the Respondent No. 2
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 22/12/2022
CAV JUDGMENT
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R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022
1. Present acquittal appeal has been filed by the appellant - Food Inspector - Ahmedabad Municipal Corporation, under Section 378 of the Cr. P.C., against the Judgment and order dated 30th January, 2012, rendered in Criminal Case No.46 of 2002 by the learned Metropolitan Magistrate, Court No.8, Ahmedabad. The said case was registered against the present respondent No.1 - original accused for the offence punishable under Section 7(1) and Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short "PFA Act") in the Court of learned Metropolitan Magistrate, Ahmedabad, wherein the learned Magistrate was pleased to acquit the respondent - accused of the charges levelled against the respondent no.1 - accused.
2. As per the case of the prosecution on 4 th May, 2022 at about 1:00 p.m. the appellant (complainant Food Inspector), with his peon Haribhai C. Parmar visited the shop of accused
- respondent no.1, Pawan Parlour, 9, Arjun Complex, Naroda, Ahmedabad. At that point of time, the accused was present at the place and was doing the business of selling milkshake. The appellant called one Shri Vipulbhai N. Parikh, who was passing from tghere and gave his introduction to the accused and Panch as a food inspector of Municipal Corporation and checked the place and thereafter purchased 900 gms. of Mango Milkshake from the shop. The appellant further inquired about the ownership of the business and documentary evidence, however the accused informed that he is the owner of the shop but did not produce any material in that regard.
Page 2 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 2.1 It is also the case of the prosecution that 900 gms Mango Milkshake which was taken as sample from the accused were sealed and packed properly as rules and accordingly sent one part of the sample for analysis to the Public analyst, Ahmedabad Municipal Corporation with the peon Shri Jayantibhai G. Solanki. The other two samples were sent to the L.H.A. (Local Health Authority).
2.2 As per the report of the Public Analyst, the said sample of Milkshake is found adulterate, therefore, after seeking necessary sanction a complaint was lodged under Section 16(1)(a)(i) of PFA Act against the respondent no.1 being Criminal Case no.46 of 2022.
2.3 After evidence was over and statement of the accused was recorded under Section 313 of the Code of Criminal Procedure and hearing of arguments of both the sides, the learned Magistrate vide impugned judgment acquitted the respondent no.1 - accused and hence the present appeal.
3. Mr. Harsh Shah, learned advocate appearing on behalf of M/s. R.J. Rawal Associates for the Food Inspector - appellant has contended that the judgment and order of acquittal is contrary to law and evidence on record and is not proper.
4. He has also contended that the learned trial Judge has committed an error in acquitting the accused on the ground Page 3 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 that there is inconsistancy in the deposition of the complainant. It is also contended that synthetic food colour is not permitted beyond prescribed limit as per the provisions of PFA Act and the learned trial Judge committed error in not appreciating the Rule 29 of PFA Rules in its correct perspective. It is also contended that the trial Court has failed to appreciate the report of Public Analyst and the evidence, which are alleged against the respondent no.1 - accused are directly connected with the health of public at large, but the learned Trial Judge by ignoring all these aspects has erred in acquitting the respondent no.1 - accused. He therefore, submitted that the judgment and order of acquittal passed by the learned Magistrate is without appreciating the facts and evidence on record and is required to be quashed and set aside by this Hon'ble Court and allow the appeal.
5. In support of his submissions, Mr. Shah, learned advocate for the appellant has relied upon the decision of the Supreme Court in case of Dhian Singh Vs. Municipal Board, Saharanpur reported in 1969(2) SCC 371.
6. Mr. M. D. Modi, learned advocate for the respondent no.1 - accused has submitted that the learned trial Judge has committed no error in appreciating the evidence, which has been brought on record and has rightly acquitted the respondent no.1 - accused. It is also submitted that the sample of Mango Milkshake, which has been taken by the food inspector, no prescribed standards are mentioned in the entire PFA Act for Mango Milkshake and when there is no Page 4 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 prescribed standard mentioned under the law of any food article, it becomes a proprietary food and the sample of Milkshake is also a proprietory food. It is also submitted that the Public Analyst has not shown any data upon which he has based his opinion of the sample not conforming standards. If no such standard is prescribed in law, the sample cannot be said to be not conforming to the standards. It is also submitted by Mr. Modi, learned advocate for the respondent no.1 - accused that as per Rule-29 of the Act, the use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited. He draw the attention of the Court to Rule-29(c) of the Act. It is submitted that here, the Public Analyst has not shown that what were the ingredients which were found in the sample of Mango Milkshake. It is also on record that there was no preservative added in the sample. It is also submitted that the prescribed standards not mentioned in the law and if as per Rule-29 of the Act, if the Food Inspector has come before the Court with a case of contravention of Rule-29 of the Act, it becomes a case not under Section 7(i), but it becomes case under Section 7(v), which says that "....(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder;" and no such sanction under Section 7(v) has been taken from the Sanctioning Authority and it is also a law that for breach of Section 7(v), the penalty is levied under Section 16(1)(a)(ii) of the Act, which reads thus: "...(ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder;" As such there is non-application of Page 5 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 mind for seeking sanction under Section 20 of the Act and as such upon appreciating the entire evidence the Court has committed no error in acquittal of the present accused. Hence, no interference of this Court is required and has prayed to dismiss the present appeal.
7. To support his contentions, Mr. Modi, learned advocate for the respondent no.1 - accused relied upon the order of the Co-ordinate Bench of this Court in case of Ahmedabad Municipal Corporation Vs. Pravinbhai Chimanlal Pattani & Anr. in Criminal Appeal no.753 of 2011 decided on 13 th July, 2011. Further, he also relied upon the decision of the Co- ordinate Bench of this Court in case of Vimal B. Chauhan Vs. Kalubhai Ambalal Jesani & Anr. In Criminal Appeal no.848 of 2011 decided on 13 th July, 2011. Mr. Modi, learned advocate for the respondent no.1 - accused also relied upon the decision of Supreme Court in case of Hindustan Lever Limited Vs. Food Inspector reported in 2003 LawSuit(SC) 650 - (2006) 1 SCC (Cri) 288 and on also relied upon the case of Shri Anilkumar Natvarlal Thakkar Vs. The State of Gujarat and Anr. decided on 22nd September, 2015 by the Co-ordinate Bench of this Court in Criminal Revision Application no.528 of 2005.
8. Heard learned advocates for the respective parties and perused the impugned judgment and order of acquittal and re- appreciated the entire evidence on record.
9. Before adverting to the facts of the case, it would be Page 6 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
9.1 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
Page 7 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 9.2 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No. 1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009)
10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445) Page 8 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p.
404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal Page 9 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
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18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
10. In aforesaid backdrop, the re-appreciation of the Page 11 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 evidence by the learned Trial Judge is to be seen.
10.1 The complainant - Food Inspector i.e. Mangaldas Abubhai Patel has been examined at Exh.13. It is admitted by the Food Inspector in the cross-examination that no standards are prescribed for Mango Milkshake in the PFA Act. The first and foremost contention raised by Mr. Modi, learned advocate for the respondent no.1 - accused gets support from the admission of the Food Inspector itself. In the entire PFA Act, Milkshake is a food product wherein there are no prescribed standards. As observed in the case of Hindustan Lever Limited Vs. Food Inspector (supra). The Public Analyst opined that the sample does not conform the standard prescribed for skimmed milk power under the PFA Act and Rules. Hence, it was found to be adulterated food. It is observed that the article falls in the category of proprietary foods and in that connection Rule-37-A(2)(b) of the Act states that "proprietary food" means a food which has not been standardized under the Prevention of Food Adulteration Rules, 1955. It was laid- down by the Hon'ble Apex Court that prosecution in regard of alleged adulteration, where standards are not prescribed under the rules and the article falls in the category of proprietary food any prosecution in regard to the article for which no standards have been laid-down could not be sustainable.
Here also it is an admitted fact that no standards are prescribed for Milkshake and when there is no standards prescribed, how can the Public Analyst report - Exh.2, states Page 12 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 that the sample does not conform to the standards. Hence, in view of the observation of Hon'ble Apex Court in the judgment of Hindustan Lever Limited Vs. Food Inspector (supra) prosecution for food article wherein no standard are prescribed is not sustainable.
10.2 As regards the presence of colour in sample is concerned, the report Exh.2 only mentions orange colour thick material i.e. description of the article, artificial sweetening agent is absent. Artificial colour in matter Sunset yellow FCF and Tartrazine yellow food colour, which is reflected. However, the PFA Act limits to that are absent. It is admitted by the Food Inspector that in the report of the PA Exh.2, the method of detection of the colour or any data to that effect is not mentioned. Reference is made to the observations made by the Co-ordinate bench of this Court in case of Shri Anilkumar N. Thakkar (supra), wherein it is observed that the Public Analyst did not state the method adopted by him for reaching the findings he did, and therefore, only on this ground, the Revision Application succeeds.
It was the duty of the Public Analyst that atleast before coming to the conclusion that the food article does not conform to the standard, he should have atleast mentioned the data, he should have shown the method by which analysis was done as such nothing has been brought on record in the report of the Public Analyst.
Page 13 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 As per the contention raised by Mr. Harsh Shah, learned advocate for the appellant regarding Rule-29, which prohibits the artificial colour except for the food articles, which are mentioned in Rule-29. It is a contravention to the provisions of Rule-29, which is the case against the respondent no.1 - accused. Rule-29 of the Prevention of Food Adulteration Rules, 1955 reads thus :
29. Use of permitted synthetic food colours prohibited.--Use of permitted synthetic food colours in or upon any food other than those enumerated below is prohibited:
"(a) Ice-cream, milk lollies, frozen dessert, flavoured milk, yoghurt, ice-cream mix powder;
(b) Biscuits including biscuit wafer, pastries, cakes, confectionery, thread candies, sweets, savouries (dal moth, mongia, phululab, sago papad, dal biji only);
(c) Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;
(d) Non-alcoholic carbonated and non-carbonated ready-to-serve synthetic beverages including synthetic syrups, sherbets, fruit bar, fruit beverages, fruit drinks, synthetic soft-drink concentrates;
(e) Custard powder;
(f) Jelly crystal and ice-candy;
(h) Flavour emulsion and flavour paste for use in carbonated or non-carbonated beverages only Page 14 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 under label declaration as provided in clause (13) of sub-rule (zzz) of rule 42.]"
10.3 Mr. Harsh Shah, learned advocate has relied upon the case of Dhian Singh (supra), wherein it is observed in para-7 as under :-
"7. The only other question canvassed before us is that the report of the analyst could not have afforded a valid basis for founding the conviction as the data on the basis of which the analyst had reached his conclusion is not found in that report or otherwise made available to the court. We are unable to accept this contention as well. It is not correct to say that the report does not contain the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's case referred to earlier. The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur Vs. Sri Ram, 1963 ALL LJ 765 wherein it is observed:
"that the report of the public analyst u/s.13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be Page 15 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 inferred whether the article of food was or was not adulterated as defined in sec.2(1) of the Act."
10.4 However, considering the judgment relied upon by Mr. Shah, learned advocate for the appellant, in the report of PA in the said judgment, the data on the basis of which the PA came to the conclusion was mentioned. Whereas, in the case on hand, no such data has been mentioned by the Public Analyst nor any method to extract the artificial colour or the quantity of the colour has been brought on record. Moreover, as per Rule-29(c) the synthetic food colour is permitted on the food items like Peas, strawberries and cherries in hermetically sealed containers, preserved or processed papaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits. Whereas the food inspector has admitted in his cross- examination that what was the ingredients used in making of the Milkshake was not inquired from the respondent no.1 - accused. As such as per Rule-29(c) also when the ingredients of the Milkshake are not on record, as admitted by the Food Inspector, breach of Rule-29 cannot be sustained. Even if the case of the prosecution is accepted that there is a breach of Rule-29 by the respondent no.1 - accused, then as per the contention raised by the learned advocate for the respondent no.1 - accused, the case falls under the category of Section- 7(v) rather than Section 7(i). As per admission of food inspector in his evidence, sanctioning authority has not asked the food inspector to rectify any of the mistake in the complaint after perusing the Public Analyst report.
Page 16 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 10.5 It is also admitted that the sanctioning authority has not given any permission for contravention of Rule-29 u/s.7(v). Section-7(v) of the Act reads thus:
7. Prohibitions of manufacture, sale, etc., of certain articles of food.--- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute----
(i) ... ...
(ii) ... ...
(iii) ... ...
(iv) ... ...
(v) any article of food in contravention of any
other provision of this Act or of any rule made thereunder;
Hence, here in this case, it is clearly on record that the prosecution has come with a case of use of permitted synthetic food colours, which is prohibited in some of the food articles if used it is a contravention to provisions of Rule-29. So the sanction ought to have been under the provisions of Section 7(v) and the penalty under this offence also comes under Section 16(1)(a)(ii). Hence, it can be made-out that the sanctioning authority has not applied the mind while considering the papers placed before the authority. As such the sanction, which has been received by the complainant before filing the complaint under Section 20 of the PFA Act, cannot be said to be a valid sanction as per the law.
11. Thus, considering the overall evidence on record and having due regard to the evidence on record, the complainant Page 17 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022
- Food Inspector has failed to prove his case. On re- appreciation of the oral as well as documentary evidence and considering the legal position, it transpires that the complainant - Food Inspector has failed to prove the case beyond reasonable doubt inasmuch as the ingredients of the offence are not proved. Considering the oral as well as documentary evidence, the learned Trial Judge has rightly acquitted the respondent no.1 - accused, which in the opinion of this Court is not required to be interfered with, as the impugned judgment and order of acquittal is neither perverse nor arbitrary or illegal.
12. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the complainant
- Food Inspector has failed to prove the case against the respondent no.1 - accused by leading cogent and convincing evidence. The judgment delivered by the trial Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial Court has been rightly appreciated by the trial Court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
13. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A beneficial reference of the decision of the Supreme Court in Page 18 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of Page 19 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:
"I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides Page 20 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
13.1 As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if Page 21 of 22 Downloaded on : Sat Dec 24 04:44:24 IST 2022 R/CR.A/289/2013 CAV JUDGMENT DATED: 22/12/2022 the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
14. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
15. In view of the above and for the reasons stated above, the appeal is hereby dismissed. The judgment and order dated 30th January, 2012, rendered in Criminal Case No.46 of 2002 by the learned Metropolitan Magistrate, Court No.8, Ahmedabad recording acquittal of the respondent no.1 - accused is hereby confirmed. The present Criminal Appeal stands dismissed. The judgment and order dated 30 th January, 2012, passed by the learned Metropolitan Magistrate, Court No.8 in Criminal Case No.46 of 2002 acquitting the respondent no.1 - accused from the offence punishable under Section-7(i) and Section 16(1)(a)(i) of the Food Adulteration Act, 1954 is hereby confirmed.
16. Bail bond, if any, stands cancelled.
17. R. & P. be sent back to the concerned trial Court, forthwith.
Sd/-
(RAJENDRA M. SAREEN, J.) AMAR RATHOD...
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