Gujarat High Court
Chandubhai vs State on 18 February, 2010
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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CR.RA/331/2002 2/ 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 331 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
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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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CHANDUBHAI
LALJIBHAI PATEL & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance
:
MR
RAJESHWAR J DAVE for
Applicant(s) : 1 - 2.
MR DC SEJPAL, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 18/02/2010
ORAL
JUDGMENT
Both the applicants who were original accused in Criminal Case No.562 of 1992 tried by learned Judicial Magistrate First Class, Kalol and original appellants in Criminal Appeal No.45 of 2001, heard and disposed of by learned Additional Sessions Judge, Mehsana have preferred this revision application u/s.397 r/w.Section 401 of the Cr.P.C. challenging the legality and validity of the judgments rendered by both the subordinate Courts.
The prosecution case in nutshell is that the respondent No.2 Food Inspector ('FI', for short) Mr.Sumanchandra Trivedi along with other Officers of the raiding party visited the shop of the applicant accused on dated 10.4.1991 and collected a sample of groundnut oil from one packed and sealed groundnut oil tin by opening the seal and packing of the tin. The sample was forwarded to Public Analyst and it was reported that the groundnut oil was adulterated. It was further revealed that the packed and sealed tins of groundnut oil were manufactured by applicant accused No.2 Pravinbhai Laljibhai, a nominee of M/s.Atlas Oil Mill, Rajkot. Bill and relevant documents to that effect were collected from the vendor applicant accused No.1 Chandubhai at the time of the raid. The FI, after obtaining due sanction to launch criminal case against both the accused, filed a criminal complaint against both applicants accused in the Court of learned JMFC, Kalol, which was registered as Criminal Case No.562 of 1992. It further transpires that the accused applied u/s.13(2) of the Prevention of Food Adulteration Act ('PFA Act', for short) for re-analysis of the sample by Central Food Laboratory, Gaziabad ('CFL', for short). After recording the evidence on record and after receipt of the report of CFL, learned JMFC, Kalol by judgment and order dated 16.7.2001 in Criminal Case No.562 of 1992 recorded conviction of both the accused for the offence punishable u/s.16 r/w.Section 7 of the PFA Act and each of the accused was sentenced to undergo R.I for three years and fine of Rs.2000/- each and in default of payment of fine, S.I for one month.
2.1 Both the applicants original accused challenged their conviction by preferring Criminal Appeal No.45 of 2001 in Sessions Court, Mehsana. Learned Additional Sessions Judge, Mehsana vide judgment and order dated 14.8.2002 dismissed the appeal and confirmed the order of conviction and sentence recorded by the trial Court. This has given rise to the present criminal revision application.
I have heard the arguments of learned advocate, Mr.Dave, for the applicants accused and learned A.P.P., Mr.Sejpal, for the respondents.
At the outset, learned advocate, Mr.Dave, for the applicants submitted that the manner and method adopted by the trial Court in trying the case are illegal and irregular. My attention is drawn to Section 13(2D) of the PFA Act and it is submitted that as provided under the said provision, once the Magistrate forwards sample for re-analysis to CFL, the Magistrate shall not continue with the proceedings pending before it until the report of CFL is received. It is submitted that in the instant case, the trial Court received the report of the CFL on dated 28.11.2000 vide forwarding letter of CFL dated 22.11.2000. It is submitted that prior to dated 28.11.2000, except pronouncement of judgment, each and every procedure was undertaken by the trial Court, meaning thereby that the charge was framed and evidence of the FI and his witnesses was recorded. It is, therefore, submitted that this is a material irregularity going to the root of the prosecution case and this has caused great prejudice to the defence of the accused.
4.1 Learned advocate, Mr.Dave, for the applicants submitted that there is a vital discrepancy regarding code number (serial number). About sample analysed by the Public Analyst, it is submitted that code number 6/MSH/KAL-1/305 is referred so far as the sample is concerned, but the code number and serial number of slip referred in CFL report is 6/MSH/KA/1/305. It is submitted that, thus, the discrepancy in code number and serial number in the details of sample analysed by Public Analyst contained in the copy of memorandum and the code number and serial number of the sample analysed by CFL is apparent.
4.2 Learned advocate, Mr.Dave, for the applicants further submitted that in the instant case, no record is produced to show as to how and adopting which procedure learned Magistrate forwarded the second set of sample to CFL. Neither any copy of forwarding letter nor registered AD slip nor any rojkam prepared by the Magistrate while forwarding the sample to CFL is produced on record. In that respect, my attention was drawn to Rule 4 of the PFA Rules and it is submitted that there is a clear violation of mandatory requirements laid down under Rule 4.
4.3 Learned advocate, Mr.Dave, for the applicants further submitted that in the instant case, there is outright violation of mandatory requirements laid down under Rule 14 of the PFA Rules. If the evidence of FI is considered, according to him, the work of lifting samples etc. was undertaken by him whereas if the evidence of Sanitary Inspector PW-2 Kantilal Trivedi is considered, according to his evidence at the instance of FI, he had collected the samples of groundnut oil. It is, therefore, submitted that thus there is a major inconsistency in the evidence adduced by the prosecution as to actually who collected the sample. FI PW-1 Sumanchandra Trivedi in his evidence stated that from the packed and sealed tin of groundnut oil, the groundnut oil for the purpose of sample was initially collected in a utensil (tapeli) and, thereafter, the same was collected in three clean and dried glass bottles. It is submitted that the FI nowhere stated as to when and how the bottles were cleaned and dried and who had cleaned and dried the bottles. There is no evidence whatsoever regarding cleaning of the utensil (tapeli). It is submitted that if the evidence of PW-2 Kantilal Trivedi is accepted, that in fact, the samples were collected and lifted by him, then, in his entire evidence, even orally he does not say that the sample bottles were cleaned and dried. Therefore, it is submitted that there is a clear non-compliance of Rule 14 of the PFA Rules.
4.4 Learned advocate, Mr.Dave, for the applicants submitted that the conviction came to be recorded solely relying upon the CFL report, Exh.116, as the report of CFL, supersedes report of Public Analyst. If the further statements of the applicants recorded u/s.313 of the Cr.P.C. are considered, nowhere the question was put to any of the applicants accused by the trial Court seeking their explanation about the evidence in form of CFL report. It is, therefore, submitted that the trial Court used the important piece of evidence of CFL report without affording any opportunity to any of the accused to explain in their further statements.
4.5 Learned advocate, Mr.Dave, for the applicants submitted that if the judgment rendered by the first Appellate Court is considered, the judgment is based on presumptions and inferences which were not available on record and the first Appellate Court upheld the conviction of the applicants.
4.6 Ultimately, it is submitted that the revision application may be allowed.
Learned A.P.P., Mr.Sejpal, for the respondents vehemently opposed this revision application and submitted that considering the limited scope contained u/s.397 r/w.Section 401 of the Cr.P.C. and considering the concurrent findings of two subordinate Courts, there is no reason whatsoever to interfere with the findings in this revision application.
5.1 It is submitted that about the compliance of mandatory requirements laid down under the PFA Act and Rules, both the subordinate Courts have unanimously held that the mandatory requirements were duly and fully complied with.
5.2 Regarding the contention raised on behalf of the applicants about Section 13(2)(D) of the PFA Act, it is submitted that the irregularity, if any committed by the trial Court, does not vitiate the whole proceedings and trial. The trial Court delivered the final judgment in the criminal case only after the receipt of the report of CFL. It is submitted that even considering the report of CFL, Exh.116, the sample of groundnut oil is found to be adulterated. The entire evidence was recorded in presence of both the accused, and, therefore, they were fully conversant about the report of CFL. They were represented by advocate before the trial Court. Therefore, non-putting of the incriminating piece of evidence emerging from the CFL report shall not vitiate the trial and the ultimate conclusion arrived at by the trial Court. Ultimately, it is submitted that the revision petition may be dismissed.
I have gone through the paper-book of the record and proceedings of the trial Court supplied by learned advocate, Mr.Dave, for the applicant. The set of paper-book shall be taken on record.
Considering the evidence of FI PW-1 Mr.Trivedi examined at Exh.26 about the collection and lifting of sample, he categorically stated that it was he who conducted the work. He selected the packed and sealed tin of groundnut oil for the purpose of collecting the sample. It was he who stirred the contents of the tin and according to him, initially he collected the groundnut oil for the purpose of sample in an utensil (tapeli) and, thereafter, the same was poured in three equal parts in cleaned and dried three glass bottles. In this respect, considering the evidence of PW-2 Kantilal Trivedi, Exh.61, according to him, at the time of raid, he had accompanied the FI Mr.Sumanchandra Trivedi. In his cross-examination, he stated that he has to accompany the FI whenever FI visited the shops for collecting samples of food articles. According to him, he was told by Supply Officer to open packed tin of groundnut oil and to collect the sample. According to him, thereafter he collected the sample of groundnut oil in three glass bottles in equal share. Under such circumstances, about the contention raised by learned advocate, Mr.Dave, for the applicants that out of the two Officers, who collected the sample, is still uncertain. This fact carries relevance for the reason that FI PW-1 Mr.Trivedi in his evidence regarding compliance of Rule 14 of the PFA Rules only deposed that the bottles were cleaned and dried, whereas if the evidence of PW-2 Kantilal Trivedi is accepted, that it was he who lifted the sample and poured the groundnut oil in equal share in three glass bottles, then in his evidence he nowhere stated that the bottles were cleaned and dried.
Reliance was placed upon a case of C.D.Patel, Food Inspector Vs. Popatlaljivaji Thakor reported in 2005(1) FAC 46.
In a case arising under the PFA Act, this Court observed that there was no evidence to come to the conclusion that the sample bottles were cleaned at the time when the sample was collected therein. It was held that thus, there was a breach of mandatory requirement laid down under Rule 14 of the PFA Rules and the acquittal order rendered by the trial Court came to be confirmed. About Rule 14 of the PFA Rules, similar observation was made in the case of State of Gujarat thro' SS Patel, Food Inspector Vs.Shyamal Tolaram Kourani decided on 19.5.2009 in Criminal Misc.Application No.16203 of 2008 in Criminal Appeal No.3036 of 2008 by this Court. In the case of Sudhirchandra B.Joshi, Food Inspector, Baroda Vs.Arvindkumar Naranbhai Patel and Ors. reported in 1995(2) GLH (U.J.24) 24, this Court about compliance of Rule 14 of the PFA Rules held that a duty is cast on prosecution not only to comply with mandatory provision, but to lead evidence at the trial for its compliance.
In light of the principles established by this Court in the above judgments and considering the facts and circumstances of the present case, it can safely be said that the FI PW-1 Sumanchandra Trivedi nowhere states as to when and how the sample bottles were cleaned. He nowhere states as to who cleaned the same. As state above, the prosecution has not only to prove that the samples so collected in cleaned and dried bottles, but should adduce evidence to that effect. Under such circumstances, I am of the considered opinion that in the instant case, the mandatory requirements laid down under Rule 14 of the PFA Rules, cannot be said to have been duly and fully complied with.
There is no dispute that in the instant case, the accused opted for sending the sample of groundnut oil for re-analysis to CFL. It appears that the accused before the trial Court applied for the same. About the procedure by which the Magistrate forwarded the sample to CFL is concerned and considering Sub-Rule 3 of Rule 4 of the PFA Rules, it is clearly provided that a copy of memorandum and specimen impression and the seal used to seal the container and the cover shall be sent separately by registered post to the Director.
10.1 In the instant case, nothing emerges from the evidence on record as to how and in which manner the trial Court forwarded the sample for re-analysis to the Director of CFL. Learned advocate, Mr.Dave, for the applicants submitted that no office copy of the memorandum is produced on record nor any AD slip showing that the memorandum and specimen impression of the seal were sent to the Director by registered post. It is further submitted that nothing emerges that at the time when the trial Court forwarded the sample to the Director of CFL, a writing, in form of rojkam was prepared by the trial Court. In the case of Shriram Harichand Gujaral Vs.State of Gujarat reported in 1976(17) GLR 434, this Court has held that the provisions of Rule 4(3) of the PFA Rules are mandatory in nature. This Court in the aforesaid judgment observed that therefore, the requirement of sending separately the specimen impression of the seal serves a very laudable purpose of safeguarding and protecting the interests of the accused and ensures fair administration of justice to him. It is this special safeguard which the accused loses when the specimen impression of the seal is sent to the Director as an enclosure in the packet sent to him for analysis . It is further observed that it assumes greater significance in cases under the Prevention of Food Adulteration Act where the fate of the accused depends upon the certificate issued by the Director the contents of which are final and conclusive evidence of the facts stated therein .
10.2 Similar observation was made by this Court in the case of State of Gujarat Vs.Ramanbhai Durlabhbhai Patel & Anr. reported in 1997(2) GLH 457.
It was held that the provisions contained under Rule 4(3) are mandatory in nature and strict compliance is necessary. In the said case, there was no evidence to show that copy of the memorandum and specimen impression of the seal were sent separately to the Director of CFL under the acknowledgment slip duly signed by the addressee i.e. Director to the CFL for reanalysis. It was further observed that for the due compliance of mandatory requirements laid down under Rule 4(3) of the PFA Rules, no presumption can be raised under Section 114 of the Evidence Act. Ultimately, in paragraph 13 of said judgment, it is observed that the lack of little extra carefulness on the part of such official of the Trial Court has proved a costly lapse for the prosecution .
Thus, in light of the above discussion, the mandatory requirements laid down under Rule 4(3) of the PFA Rules cannot be said to have been duly and fully complied with.
Learned advocate, Mr.Dave, for the applicants submitted that in the instant case, if the memorandum of the description of sample as emerged from the details of sample, Exh.42 is considered, the code number and serial number and slip of Local Health Authority is 6/MSA/KAL-1/305 whereas if the CFL report, Exh.116 is taken into consideration, the code number and serial number of LHA slip is referred to 6/MHA/KA/1/305. It is submitted that this discrepancy in code number and serial number would nullify the effect of the report of Director, CFL. Reliance was placed upon the case of V.C.Dodiya Vs.S.M.Thakkar reported in 1994(1) GLR 487.
Perusing to the facts of said case and considering the discussion made in paragraph 5 in said judgment, it transpires that there was no discrepancy regarding code number and serial number in forwarding letter, Exh.61 and report, Exh.67. However, FI in his oral deposition mentioned the serial number D-17/5(IU)(1) whereas the code number as emerged from forwarding letter and the report was D-17/5(IV)(1). Thus, the discrepancy was that in forwarding letter and report, in place of V the FI in his oral deposition referred U . This Court held that there was patent inconsistency in referring the code number and serial number in the evidence of FI. What was referred to serial number of the sample by FI in his evidence before Court is not the one and the same which was forwarded to Public Analyst and which ultimately came to be analysed. It was further observed that it is indeed quite difficult for this Court also to express any opinion at this juncture as to whether it was some honest, bonafide mistake on the part of the FI while describing the serial number of the sample before the Court as the one and the 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 FI that somehow he failed to correctly write the serial number of the sample .
In the instant case, if the judgment and order rendered by the learned Additional Sessions Judge is considered, about the discrepancy, the learned Addl.Sessions Judge observed that there may be bonafide mistake on the part of the typist regarding such discrepancy in serial number and code number. As observed by this Court in V.C.Dodiya's case referred above, this Court criticized such approach of raising inference and presumption that there may be honest or bonafide mistake. The fact remains that in the instant case, there is a discrepancy in code number and serial number regarding the sample.
It is pertinent to note that in the instant case, after forwarding the sample at the request of the accused to CFL, as provided u/s.13(2)(D), the trial Court did not wait for report of the CFL to come. The provisions contained u/s.13(2)(D) suggests that till the receipt of the certificate and the result of the analysis from the Director of the CFL, the Court shall not continue with the proceedings pending before it in relation to the prosecution. There is no dispute that the trial Court received the report of CFL, Exh.116 on dated 28.11.2000, prior to which the charge was framed and the witnesses examined by the prosecution was recorded. Despite such admitted facts, the learned Additional Sessions Judge in the impugned judgment and order observed that the report of CFL was received by the trial Court in the year 1992. Such faulty observation on the part of the first Appellate Court is contrary to record and amounts to misreading of evidence. However, whether the evidence recorded by the trial Court without waiting for the report of the CFL can be treated as irregularity going to the root of the matter and amounting to vitiating the trial may not be required to be elaborately dealt with for the simple reason that, as stated above, in the instant case, there was clear non-compliance of the mandatory requirements laid down under Rule 14 and Rule 4(3) of the PFA Rules. Over and above this, the discrepancy in code number and serial number creates reasonable doubt, which shall ultimately go to the accused.
Last but not the least, it is pertinent to note that the trial Court recorded the further statement of the applicant accused after the trial Court received the analysis report of CFL. Exh.116. Considering the judgment of the trial Court and even of the Appellate Court, needless to say that the conviction came to be recorded on the basis of report of analysis of the sample by CFL. To put it differently, that was an important evidence, which was going against the accused. Despite this, if the further statements of the accused recorded by the trial Court u/s.313 of the Cr.P.C. are considered, not a single question was put to any of the accused seeking their explanation about the evidence in form of report of CFL. Learned advocate, Mr.Dave, for the applicants drew my attention to the case of Shankarlal Mangilal Jain Vs. State of Gujarat decided by this Court on 15.9.2000 in Criminal Revision Application No.110 of 1994. In the said case, petitioner Shri Jain came to be convicted by the trial Court for the offences punishable under Section 16 r/w.7 of the PFA Act. His appeal came to be dismissed by learned Sessions Judge, Ahmedabad. Ultimately, he preferred Criminal Revision Application u/s.397 r/w.Section 401 of the Cr.P.C. In the said judgment, this Court observed that the further statements of the petitioner accused was not properly recorded by the trial Court in accordance with law. In this respect, in the said judgment, it is observed as under:-
It is equally true that the accused was not called upon to explain the nature of adulteration found in the sample of oil collected from him. The only question put to him was - "What he had to say about the report of the Director of Central Food Laboratory ? To which he had answered that, `the report is false". The accused was not explained the contents of the report of the Director of Central Food Laboratory, and that it was found to be adulterated by addition of cotton seed oil, and no explanation was sought from the accused as regards the nature of adulteration. This, in my view, can not be said to be an adequate opportunity given to the accused to defend his action. This opportunity of defence, as envisaged under section 313 CRPC, is an important and vital to right of defence. The infringement of such right shall result into acquittal.
If the facts and circumstances emerging from the instant case are considered, it clearly transpires that the instant case rests even on better footing than Shankarlal Jain's case, in the sense that in the instant case, the learned trial Judge did not ask even a general question to any of the applicant accused as to what they have to say about report of Director of CFL. In Shankarlal Jain's case, this Court held that even to put such general question to the accused about what he has to say, regarding the report of CFL cannot be said to be due compliance of provisions contained in Cr.P.C., whereas in the instant case, the trial Court did not put even such general question to any of the accused. Under such circumstances, I am of the opinion that the principle established by this Court in Shankarlal Jain's case squarely applies to the facts and circumstances of our case.
In the result, I am of the opinion that the revision application deserves to be allowed.
For the foregoing reasons, the revision application is allowed. The judgment and order rendered by learned Additional Sessions Judge, Mehsana on dated 14.8.2002 in Criminal Appeal No.45 of 2001 whereby the judgment and order rendered by learned Judicial Magistrate First Class, Kalol on dated 16.7.2001 in Criminal Case No.562 of 1992 wherein both the applicants accused came to be convicted for the offences punishable under Section 16 r/w.7 of the PFA Act and the sentence awarded to them thereunder and which came to be upheld by the learned Additional Sessions Judge, Mehsana in the aforesaid appeal, are hereby quashed and set-aside. Both the applicants accused are ordered to be acquitted from all the charges levelled against them. Fine, if paid, be refunded to them.
(J.C.UPADHYAYA, J.) (binoy) Top