State Of Gujarat Thru' L.D.Faldu vs Mukeshkumar Ambala Patel & ... on 28 March, 2017

[Cites 2, Cited by 2]

Gujarat High Court

State Of Gujarat Thru' L.D.Faldu vs Mukeshkumar Ambala Patel & ... on 28 March, 2017

Bench: A.G.Uraizee

                   R/CR.A/993/2013                                           JUDGMENT



                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                 CRIMINAL APPEAL (FOR ENHANCEMENT) NO. 993 of 2013



         FOR APPROVAL AND SIGNATURE:



         HONOURABLE MR.JUSTICE A.G.URAIZEE
         ================================================================
         1     Whether Reporters of Local Papers may be allowed                         NO
               to see the judgment ?

         2     To be referred to the Reporter or not ?                                  NO

         3     Whether their Lordships wish to see the fair copy of                     NO
               the judgment ?

         4     Whether this case involves a substantial question of                     NO
               law as to the interpretation of the Constitution of
               India or any order made thereunder ?

         ================================================================
                  STATE OF GUJARAT THRU' L.D.FALDU.....Appellant(s)
                                    Versus
              MUKESHKUMAR AMBALA PATEL & 1....Opponent(s)/Respondent(s)
         ================================================================
         Appearance:
         PUBLIC PROSECUTOR for the Appellant(s) No. 1
         APPEARANCE DELETED for the Opponent(s)/Respondent(s) No. 2
         MR LALIT V PATEL, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
         ================================================================
             CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE

                                     Date : 28/03/2017
                                     ORAL JUDGMENT

1. The State is in appeal under Section 377 of the Code of Criminal Procedure, 1973 (for short the code) for enhancing of sentence inflicted on respondent dated 29.01.2013 Page 1 of 5 HC-NIC Page 1 of 5 Created On Tue Aug 15 12:25:48 IST 2017 R/CR.A/993/2013 JUDGMENT passed by the learned Metropolitan Magistrate, Court No.8, Ahmedabad in Criminal Case No.1 of 2003.

2. Heard Ms. Reeta Chandarana, learned Additional Public Prosecutor for the State and Mr. Lalit V. Patel, learned advocate for the respondent.

3. By the impugned judgment and order of sentence, the respondent No.1 came to be convicted for the offence punishable under Rule50(1) of the Prevention of Food Adulteration Rules, 1955 (hereinafter Rules) read with Section7(III) of the Act and has directed to suffer imprisonment till rising of the Court and to pay a fine of Rs.500/, in default to suffer simple imprisonment for 10 days.

4. Section 7 (III) of the Act reads as under: "7. Prohibition of manufactures, sale etc. of certain articles of food: No person shall himself or by any person on his behalf manufactures for sale or store, sell or distribute (III) any article of food for the sale of which the license is prescribed, except in accordance with the condition of the license."

5. Rules 50(1) of the Rules provides as under: Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Aug 15 12:25:48 IST 2017 R/CR.A/993/2013 JUDGMENT "50. Conditions for license. (1) No person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food or irradiate food except under a license:

Provided that the fruit products covered under the Fruit Products Order, 1955, solvent extracted oil, deoiled meal and edible flour covered under the Solvent Extracted Oil, Deoiled Meal and Edible Flour (Control) Order, 1967, vanaspati cvered under the Vegetable Oil Products (Regulation) Order, 1998, and meat and poultry products covered under the Meal Food Products Order, 1973, shall be exempted from the above rule."

6. It is thus vividly clear from the above provisions that the respondent came to be punished for not having license to sell the milk or milk produce.

7. Mr. Patel, learned advocate for the respondent has drawn attention of this Court exhibit26 charge framed against the respondent. Perusal thereof reveals that the charge for offence under Section 7(1) of the Act and punishable under Section 16(1)(a)(I) was framed against the respondent for selling adulterated cow milk.

8. In view of the above, it is manifestly clear that the punishment under Rule50(1) read with Section 7(3) of the Act is inflicted on the respondent without there being any charge in that regard. In my view, since the Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Aug 15 12:25:48 IST 2017 R/CR.A/993/2013 JUDGMENT punishment is inflicted upon the respondent without framing proper charge, the entire trial is vitiated and the matter is required to be refer to the trial Court for fresh consideration.

9. In view of the above, the impugned judgment and order of learned Metropolitan Magistrate quashed and set aside. The matter is remanded to the trial Court for fresh trial in accordance with law. The learned trial Court is directed to hold retrial of the case against the respondent from the stage of framing of the charge after giving opportunity of hearing to the respondents in accordance with law.

10. It is clarified, though not required, that this Court has neither examined the merit nor has expressed any opinion on the merits of the case. The Trial Court shall decide the case independently in accordance with law being influenced by this Judgment.

11. Record and Proceedings is ordered to be remitted back to the lower Court forthwith.

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HC-NIC Page 4 of 5 Created On Tue Aug 15 12:25:48 IST 2017 R/CR.A/993/2013 JUDGMENT (A.G.URAIZEE,J) Manoj Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Aug 15 12:25:48 IST 2017

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