Gujarat High Court
Surat Municipal Corporation vs Dilip L Jogale & 3 on 29 April, 2015
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.MA/21772/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 21772 of
2014
===========================================================
SURAT MUNICIPAL CORPORATION....Applicant(s)
Versus
DILIP L JOGALE & 3....Respondent(s)
================================================================
Appearance:
MR KI SHAH, ADVOCATE for the Applicant(s) No. 1
MS. HANSA PUNANI, APP,PROSECUTOR for the Respondent(s) No. 4
================================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 29/04/2015
ORAL ORDER
[1] The present leave to appeal has been filed by the applicant-original complainant, Surat Municipal Corporation against the Judgment and order dated 22.08.2014 rendered by the learned Judicial Magistrate First Class, (Municipal) Court, Surat, in P.F.A. Case No.30 of 2005. The said case was registered against the respondent-accused Nos.1 to 3 for the offence punishable under Section-16 of the Prevention of Food Alteration Act for the breach of Sections-2(1-a)(m) and 7(i) of the said Act.
[2] According to the prosecution case, the complainant had filed a complaint being PFA Case No.30 of 2005 against the respondent-accused Nos.1 to 3 before the Court of Judicial Magistrate First Class, Surat, wherein, it was stated by the complainant that on 25.05.2005 around Page 1 of 6 R/CR.MA/21772/2014 ORDER 3:00 o'clock in the morning, respondent No.1-accused was going in respondent-accused No.2's organization's insulated van for selling of milk which was packed in plastic pouch and labeled as "Sangam Gold Pasteurized Milk". The complainant stopped him and search his van and found 100 container of plastic packed pouches of milk. In each container there were 20 pouches and in each pouch there was 500 ml milk was packed. Respondent No.2-accused is a co-operative organization on whose name and label such milk trade business was carried out by respondent No.3-accused in its nominee who is liable for administration of respondent No.2-accused organization and was engaged in business of selling of adulterated milk. In the presence of respondent No.1- accused, and independent panch, complainant Food Inspector took the sample of 3 pouches labeled as "Sangam Gold Pasteurized Milk" which was stored in a plastic pouch, from the accused and by following necessary process as prescribed under the Prevention of Food Adulteration Act, 1954 and sent the sample to the Public Analyst for the analysis report. The public analyst said in this report that the sample of "Sangam Gold Pasteurized Milk" was not as per the measures prescribed under the Prevention of Food Adulteration Act, 1954 and said samples were adulterated. Therefore the respondents-accused committed an offence which is punishable under Section-7 read with Section-16 of the PFA Act. After obtaining necessary sanction to prosecute Page 2 of 6 R/CR.MA/21772/2014 ORDER against the accused, the complainant filed a complaint against the accused as stated aforesaid. There is also a report of CFL against the accused which confirms offence against the accused and confirm report of public analysis. Moreover, in CFL report, it was found that no batch number, ingredients or expiry date was printed on the Sangam Gold Pasteurized Milk pouch and hence, the accused are liable for offfence of misbranding of article which is violation of Section-7(ii) of the Act and punishable under Section-16 of the Act. Thereafter, process was issued against the respondents-accused. Then, the investigation was carried out and statements of the witnesses were recorded. After collecting sufficient evidence, charge-sheet was filed against the respondents- accused for the alleged offence before the learned Judicial Magistrate First Class, (Municipal) Court, Surat, which was numbered as P.F.A. Case No.30 of 2005 [3] On the basis of above allegations, charge was framed vide Exh.78 and read-over and explained to the accused for the offence punishable under Section-16 of the Prevention of Food Alteration Act for the breach of Sections-2(1-a)(m) and 7(i) of the said Act. Then, plea was recorded vide Exh.79 to 81 and respondents-accused pleaded not guilty to the charge and claimed to be tried.
[4] In support of the prosecution case, prosecution has examined four oral evidences :-
Sr. Exh. Name of Witness Page 3 of 6 R/CR.MA/21772/2014 ORDER No .
1 28 Hemenkumar Gunvantray Gohil 2 108 Amrutbhai Devchandbhai Patel 3 123 Maninal Ganesh Painter [5] In support of the prosecution case, the prosecution has produced several documentary evidences like xerox copy of gazette at Exh.30, certificate of the complainant at Exh.31, xerox copy of Shri LHA to work as Food Inspector at Exh.33 etc. [6] Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The respondents-accused disclosed that the prosecution could not prove its case beyond reasonable doubt. Further, they stated that when mandatory provision is not followed by the prosecution, respondents-accused cannot be convicted. They admitted that they were innocent and they have wrongly charge-sheeted by the complainant and they have denied the case of the prosecution and submitted that a false case is filed against them.
[7] Then, arguments of both the parties were heard. After perusal of the evidence and considering the defence version of the respondents-accused, the learned trial Judge passed the acquittal order in favour of the respondents-accused.
Page 4 of 6R/CR.MA/21772/2014 ORDER [8] Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 22.08.2014 rendered by the learned Judicial Magistrate First Class, (Municipal) Court, Surat, in P.F.A. Case No.30 of 2005.
[9] Heard Mr. K.I.Shah, learned counsel for the appellant- complainant and Ms.Hansa Punani, learned Additional Public Prosecutor for respondent no.4-State.
[10] Mr. K.I.Shah, learned counsel for the appellant- complainant read the contents of the complaint and other documentary evidence produced on record. He contended that the learned trial Judge has rightly considered that mandatory provision of Rule-14 is not followed by the prosecution. He further contended that the learned trial Judged committed a grave error in acquitting the respondents-accused and therefore, he prayed to quash and set aside the judgment and order of the learned trial Judge and to allow this application.
[11] I have perused evidence of all three witnesses and I have also perused the contents of the complaint. The learned trial Judge rightly observed that panch witnesses who declared as hostile, could not produce any supportable evidence in support of the prosecution case in cross-examination. Further, whether respondent accused No.1 was present in vehicle as a driver or as a salesman or how he was joined as accused, is not established through oral versions of the witnesses. Out of three pouches, from which the complainant has taken the sample of milk, one pouch was sent to LHA, second pouch was sent to public Page 5 of 6 R/CR.MA/21772/2014 ORDER analyst and third pouch was kept with him. Opinion of the Central Food Laboratory under Rule-13, is decisive and hence, report of the public analyst supersedes and cannot be considered. Further, the complainant has not followed the mandatory provision of Rule-14 as there is no evidence on record to show that the vessels used for taking the samples were cleaned or not. From the observations made by the learned trial Judge, I am in full agreement with the judgment and order of the learned trial Judge. There in no substance in the present application and the arguments made by the learned advocate for the applicant-complainant. Though learned advocate for the applicant tried to establish his case, but the Court did not find any sufficient evidence to consider and entertain this application for leave to appeal.
[12] In view of the above, present application for leave to appeal is hereby dismissed. The impugned judgment and order dated 22.08.2014 rendered by the learned Judicial Magistrate First Class, (Municipal) Court, Surat, in P.F.A. Case No.30 of 2005, acquitting the respondents-accused is hereby confirmed. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith. Bail bond shall stand cancelled.
(Z.K.SAIYED, J.) siddharth Page 6 of 6