Gujarat High Court
Harshadkumar Somabhai Modi vs State Of Gujarat & on 20 January, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.RA/192/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 192 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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HARSHADKUMAR SOMABHAI MODI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BN LIMBACHIA, ADVOCATE for the Applicant(s) No. 1
MR NJ SHAH, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 20/01/2016
ORAL JUDGMENT
1. By way of this revision application, which is filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, the applicant - accused has challenged the order dated 29.02.2000 passed by learned Judicial Magistrate First Class, Ahmedabad Page 1 of 14 HC-NIC Page 1 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT (Rural) in Criminal Case No.870 of 1993 as well as the order dated 15.02.2005 passed by learned Additional Sessions Judge, Ahmedabad (Rural) passed in Criminal Appeal No.8 of 2000.
2. The facts in nutshell are as under:
2.1. As per the case of the prosecution, on 06.10.1993, the Food Inspector visited the premises of the applicant - accused and turmeric powder was purchased by him. Thereafter, he had followed the procedure prescribed under the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act' for the sake of brevity). One of the samples was sent to the concerned laboratory for its analysis. The Public Analyst submitted the report on 22nd October 1993. As per the said report, 12.92% of total ash was found in the said sample. Permissible limit is maximum 9%. Therefore, the sample was not as per the prescribed standard. The respondent No.2 - Food Inspector, therefore, obtained the consent of the competent authority for filing the complaint against the applicant - accused. Accordingly, the complaint was filed before the learned Judicial Magistrate First Class, Ahmedabad (Rural) by the respondent No.2 -
complainant. The complainant was examined at Exh.31. The complainant has also examined Bharatchandra Ramanlal Desai vide Exh.45. Prosecution has also produced documentary evidence on record including the report given by the Public Analyst Exh.23. On the basis of the documentary as well as oral evidence produced on record, learned Magistrate by the impugned Page 2 of 14 HC-NIC Page 2 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT order dated 29.02.2000 convicted the applicant - accused for the offence punishable under Section 16 of the Act and sentenced him to suffer Simple Imprisonment for a period of one year and also imposed fine of Rs.1,000/- (Rupees one thousand only) and in default of payment of fine, 30 days Simple Imprisonment was ordered. The applicant - accused challenged the said order before the Appellate Court by filing Criminal Appeal No.8 of 2000. The Appellate Court also by impugned order dated 15.02.2005 confirmed the order passed by the learned Magistrate and thereby dismissed the appeal. Applicant has, therefore, approached before this Court by filing this revision application.
3. Heard learned advocate Mr. B.N.Limbachia appearing for the applicant and learned APP Mr. N.J.Shah for respondent No.1 - State of Gujarat. Though served, respondent No.2 - original complainant has not filed appearance. Matter is pending since 2005 and therefore the same is taken up for hearing.
4. Learned advocate for the applicant mainly contended that while taking the sample, the Food Inspector has not properly followed the procedure prescribed under the Act. He has further contended that the Public Analyst has given the report vide Exh.23. As per the said report, 12.92% ash was found in the sample collected by the Food Inspector which was sent to the Public Analyst which was more than the permissible limit. However, as per the submission of Page 3 of 14 HC-NIC Page 3 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT learned advocate, in the said report the said Public Analyst has not at all stated about the method adopted by him while analyzing the sample. Learned advocate has referred the said document i.e. the report of the Public Analyst Exh.23 and submitted that as per Form No.III and Rule 7(3) of the Prevention of Food Adulteration Rules of 1955 (hereinafter referred to as 'the Rules' for the sake of brevity), the Public Analyst is bound to state in the report about the methodology adopted by him at the time of carrying out the analysis of the sample. However, in the present case the Public Analyst has not at all stated about the method of test used as per the prescribed form provided under the Rules. Thus, in absence of the said details the report submitted by the Public Analyst ought not to have been relied upon by the Courts below and therefore the orders of conviction passed by the learned Trial Court and confirmed by the Appellate Court are required to be quashed and set aside.
5. At this stage, learned advocate for the applicant has fairly submitted that this point was not taken by the applicant - accused before the Courts below. However, he has contended that the question of law can be raised at any time and therefore this Court may permit the applicant to take such contention before this Court. Law provides that the Public Analyst shall give his report in particular form prescribed under the Rules. If the Public Analyst has not given the report in the prescribed form as per the Rules, such contention can be taken at this stage also. He further Page 4 of 14 HC-NIC Page 4 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT urged that it is an undisputed fact from the report at Exh.23 that column No.4 provided in form III i.e. name of method of test used is missing in the report. Thus, it is an undisputed fact which goes to the root of the matter and therefore this Court may consider the said aspect and quash and set aside the impugned orders.
6. In support of the aforesaid contentions, learned advocate Mr. Limbachia has placed reliance upon the decision of the Hon'ble Supreme Court rendered in the case of State of Orissa v. Rabindra Sahu, reported in 2006(1) FAC 200 and judgment dated 08.01.2015 given by this Court in Criminal Revision Application No.599 of 2005 in the case of Vinodbhai Omprakash Gupta v. State of Gujarat & Anr. He has also placed reliance upon the oral judgment dated 17.10.2003 passed by this Court in Criminal Appeal No.1060 of 1992 in the case of State of Gujarat v. Safimohmmad Rasulbhai Nakum.
7. On the other hand, learned APP Mr. Shah has contended that no illegality is committed by the Courts below while passing the order of conviction on the basis of the oral as well as documentary evidence produced on record and the scope of judicial interference in revision application is very limited and therefore this revision application be dismissed. Learned APP has further submitted that the contention of learned advocate for the applicant that the report of the Public Analyst produced vide Exh.23 is not as per form No.III was not taken before the Courts below and therefore at this belated stage applicant be Page 5 of 14 HC-NIC Page 5 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT prevented from taking such contention. He further submitted that the decisions relied upon by learned advocate for the applicant are not applicable to the facts of the present case and therefore this revision application be dismissed.
8. I have considered the submissions canvassed on behalf of the learned advocates for the parties. I have also gone through the material produced on record as well as the Record and Proceedings. From the record it emerges that while taking the sample from the premises of the applicant - accused, the complainant, Food Inspector, has followed the procedure prescribed under the Act and the Rules. Before filing the complaint, sanction from the competent authority was also obtained by him. However, the prosecution - complainant has relied upon the report submitted by the Public Analyst which is produced vide Exh.23. If the said report is carefully perused, it is clear that the report was submitted by the Public Analyst in prescribed form No.III (Rule 7(3) of the Rules) provided under the Rules. As per the said report, 12.92% of total ash was found instead of maximum 9% permissible under the Act and the Rules and simply relying upon the said report, the prosecution was launched against the applicant accused. On careful examination of the said report, it is further revealed that the said report is not as per the prescribed form and detail with regard to name of method of test used is missing in the said report. Form III prescribed under the Rules provides as under:
Page 6 of 14HC-NIC Page 6 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT "[FORM III [See rule 7(3)] [REPORT BY THE PUBLIC ANALYST] Report No...............
Certify that I,.....................................................(name of the Public Analyst)........... duly appointed as Public Analyst under the provision of the Prevention of Food Adulteration Act, 1954, for.................. (name of the local area)................received from**............a sample of.............. bearing Code No. and Serial No......................of Local (Health) Authority on................................. (Date of receipt of sample) .........................for analysis.
The condition of seals on the container and the outer covering on receipt was as follows:-
............................................................................................................................................................... ...............................................................................................................................................................
I found the sample to be.................category of the food sample)..............................falling under item No...............of *Appendix B of Prevention of Food Adulteration Rules, 1955/*proprietary food. The sample* was in condition fit for analysis and has been analysed on..............(Give Date of starting and completion of analysis).............and the result of its analysis is given below/*was not in a condition fit for analysis for the reason given below:-
Reasons:-
............................................................................................................................................................... ............................................................................................. Analysis Report:-
(i) Sample Description:-
............................................................................................................................................................... .............................................................................................
(ii) Physical Appearance:-
............................................................................................................................................................... .............................................................................................
(iii) Label:-
............................................................................................................................................................... .............................................................................................
Page 7 of 14 HC-NIC Page 7 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT Serial Quality Name of Result Prescribed Standards No. Characteristics Method of as per:- test used (a) Item A- of 1 Appendix 'B' 2 (b) As per label 3 declaration for proprietary foods 4 5 (c) As per provisions of the Act and Rules, 6 for both above. Opinion***
Signed this.................day of..............20............... (Signature) Public Analyst (Seal) Address........................................................
*Strike out whichever is not applicable.
**Give details of the senders.
***When opinions and interpretations are included, document the basis upon which the opinions/interpretation have been made."
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9. Thus, name of method of test used is not at all stated by the Public Analyst in the report produced vide Exh.23. Thus, in absence of the details of procedure followed by the Public Analyst while analyzing the sample in question, it is not proper for the Trial Court to convict the applicant - accused for the alleged offence.
10. This Court, in case of Vinodbhai Omprakash Gupta (supra) observed and held as under:
"8. The next question is as to whether Page 8 of 14 HC-NIC Page 8 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT prosecution has established beyond reasonable doubt that the food article in question was adulterated by the use of non permissible Rhodamine B coaltar colour therein. The prosecution relied upon the testimony of public analyst as well as his report in Form No.3 produced at Exhibit 15 wherein in the column relating to result of analysis, the use of non-permitted basic Rhodamine B coaltar colour is said to have been detected. The report further indicates that the test was not conducted by the author of the report and deponent, but it was caused to be analyzed. The report does not refer to the methodology adopted for reaching to the aforesaid conclusion; nor does it refer to the protocols of the third party who carried out the analysis.
9. The question is whether such a report would constitute 'evidence' within the meaning of Section 3 of the Indian Evidence Act. As per the said provision, to constitute oral evidence, it must be shown that the statements permitted or required to be made before the Court by witnesses in relation to the matters of fact under inquiry were made and to constitute a documentary evidence, all documents including electronic records produced for the inspection must be shown to exist and fact can be said to have been proved when after considering the matter before it the Court either believe its existence or considers it existence so probable that a prudent man ought under the circumstances of a particular case to act upon the supposition that it exists. In the instant case, the public analyst has merely deposed about the detection of the non permissible colour in his oral as well as documentary evidence. On the basis of such evidence, the Court was called upon to believe the presence of impermissible colour in the food article. However, the basis on which the Court must believe the said aspect was not Page 9 of 14 HC-NIC Page 9 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT laid; inasmuch as, it was not shown to the Court as to what persuaded the public analyst to conclude and record the presence of objectionable colour in the food article. In fact, the public analyst had drawn the conclusion which the Court was required to draw. Even, the methodology adopted by the public analyst or the third party from whom the public analyst obtained report; nor the protocols of the third party on the basis of which the aforesaid conclusion can be reached were placed before the Court. Thus, there remained a serious doubt as to contents of the food articles. The case was thus not proved beyond reasonable doubt. Various Courts including the Apex Court in the aforementioned cases are unanimous on the fact that in absence of complete report constituting an incriminating circumstance against the accused, the case cannot be said to have been established beyond reasonable doubt."
11. Facts of the present case are also similar to the aforesaid case. In the present case also, as observed hereinabove the Public Analyst Mr. Bharatchandra Ramanlal Desai, Exh.45, has given the deposition and produced report vide Exh.23 and on the basis of such evidence the Court was called upon to believe the presence of impermissible total ash found in the turmeric powder. However, the basis on which the Court must believe the said aspect was not laid, inasmuch as, it was not shown to the Court as to what persuaded the Public Analyst to conclude and record the presence of objectionable total ash i.e. more than permissible limit in the turmeric powder. Even the methodology adopted by the Public Analyst was not placed before the Court at the time of giving the deposition also.
Thus, there remained a serious doubt as to the
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HC-NIC Page 10 of 14 Created On Fri Jan 22 02:42:14 IST 2016
R/CR.RA/192/2005 JUDGMENT
contents of the turmeric powder.
12. In the case of Safimohmmad Rasulbhai Nakum
(supra), this Court observed as under:
"9. If we peruse the public analyst report in respect of adulterated nankhatai, it is crystal clear that in the said report there is no mention of any method by which the samples were found to be adulterated. In the said report produced on record at exh. 29 dated 19.01.1985 against column no. 2 it is mentioned as under :
"Artificial colouring matter : Non permitted Rhodamine - B and yellow Basic coal tar colour present"
There is also mention of Rule 28 over the aforesaid writing. Rule 28 of the Prevention of Food Adulteration Rules, 1955 is regarding Synthetic, food colours which may be used for selling any food. It has come on record that there are different colours of samples of nankhatai obtained by the Food Inspector. Just below the aforesaid mention, there is mention of the public analyst that samples of nankhatai does not conform to the standards and provisions laid down under Prevention of Food Adulteration Rules, 1955. Which standards and provisions the sample does not conform is not mentioned in the report exh. 29."
13. In view of the aforesaid decisions rendered by this Court, I am of the opinion that the methodology adopted by the Public Analyst while analyzing the sample in question was not at all placed before the Trial Court by producing oral as well as documentary evidence and therefore in absence of such details, Trial Court has committed an error by convicting the Page 11 of 14 HC-NIC Page 11 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT applicant - accused for the alleged offence. Similarly, the Appellate Court has also ignored the aforesaid important aspect of the matter while dismissing the appeal filed by the applicant.
14. It is true that such contention was not taken before the Courts below. However, law point can be raised at any point of time and in the present case it is an undisputed fact that in the report Exh.23 details with regard to methodology adopted by the Public Analyst is not stated which is required as per the prescribed form No.III under the Rules. Thus, when said fact goes to the root of the matter, benefit of doubt is required to be given to the applicant - accused. The Hon'ble Supreme Court in the case of Rabindra Sahu (supra) has observed and held in para 3 as under:
"3. It is not in dispute that Rule 18 of the Prevention of Food Adulteration Rules is mandatory in character. If it is mandatory, the procedure laid down therefor was required to be complied with for sustaining the judgment of conviction. If on the basis of the materials on record, the High Court could come to a finding that the provisions therefor had not been complied with, we are of the opinion that the High Court was not precluded from going into the said contention only because the same had not been raised before the Trial Court or before the Appellate Court."
15. Even on this aspect also this Court in the case of Vinodbhai Omprakash Gupta (supra) has observed in para 13 as under:
Page 12 of 14HC-NIC Page 12 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT "13. This Court is conscious of the limitation of its revisional jurisdiction.
Normally, in case of concurrent findings of fact the revisional Court would be slow in interfering. However, at the same time, the settled legal position is that questions of law can be addressed even in a case where concurrent factual findings are rendered. In the instant case, as can be noticed from the above discussion, various questions of law going to the root of the matter have been raised by the petitioner and thus in view of the above discussion, in paragraph Nos.8 to 12, this Court is inclined to interfere in the judgment and order rendered by the Courts below. Accordingly, the impugned judgment and orders passed by both the Courts below are quashed and set aside. The petitioner is ordered to be acquitted of the charges levelled against him. Rule is made absolute to the aforesaid extent. R & P be sent back to the lower Court."
16. Thus, keeping in mind the law laid down by the Hon'ble Supreme Court as well as this Court, this Court is conscious about its limitation of exercise of revisional jurisdiction and normally in case of concurrent finding of fact the Revisional Court would be slow in interfering. However, as discussed hereinabove, important detail is missing in the report of the Public Analyst and therefore the benefit of doubt is required to be given to the applicant- accused. Accordingly, this application is allowed. The impugned order dated 29.02.2000 passed by learned Judicial Magistrate First Class, Ahmedabad (Rural) in Criminal Case No.870 of 1993 as well as the order dated 15.02.2005 passed by learned Additional Sessions Page 13 of 14 HC-NIC Page 13 of 14 Created On Fri Jan 22 02:42:14 IST 2016 R/CR.RA/192/2005 JUDGMENT Judge, Ahmedabad (Rural) passed in Criminal Appeal No.8 of 2000, are hereby quashed and set aside. Applicant is ordered to be acquitted of the charges levelled against him. Rule is made absolute. R & P be sent back to the learned Trial Court forthwith.
(VIPUL M. PANCHOLI, J.) Jani Page 14 of 14 HC-NIC Page 14 of 14 Created On Fri Jan 22 02:42:14 IST 2016