Gujarat High Court
Jagdishchandra Khandulal vs The State Of Gujarat & on 20 April, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.RA/224/2005 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 224 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowedYes. But paras 1
to see the judgment ? to 3.2 and paras
7 to 10 only.
2 To be referred to the Reporter or not ?
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 ?
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JAGDISHCHANDRA KHANDULAL....Applicant(s)
Versus
THE STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
M/S THAKKAR ASSOC., ADVOCATE for the Applicant(s) No. 1
MR KP RAVAL, 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 N.V.ANJARIA
Date:20/04/2015
CAV JUDGMENT
Present Revision Application is directed against judgment and order dated 04.04.2005 passed by learned Additional Sessions Judge, Fast Track Court No. 4, Jamnagar, dismissing Criminal Appeal No. 18 of 2002, in turn confirming judgment and order dated 27.09.2001 passed by learned Judicial Magistrate (First Class), Page 1 of 15 R/CR.RA/224/2005 CAV JUDGMENT Kalavad, in Criminal Case No. 510 of 1996.
2. Learned Judicial Magistrate convicted the present applicant for the offence punishable under Section 7(1) read with Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 and sentenced him to simple imprisonment for six months and fine of Rs.500/, in default of payment of fine undergo further one month imprisonment. The said conviction and sentence was confirmed in the Appeal, being the impugned judgment.
3. The applicantaccused had been running business in the name of M/s. Khandlal Zaverchand and Sons at the address near State Bank of Saurashtra, at Kalavad and used to sell food items. On 12.08.1996, the complainantFood Inspector took a sample of chilly powder from the plastic bag kept in the shop of the applicant collecting 350 grams in the presence of panchas. Having undergone the procedure under the Food Adulteration Rules, the samples were collected in three parts, one part was sent to the Public Analyst, Rajkot and remaining two parts were sent to the Assistant Director, Local Health Authority.
3.1 On 13.08.1996, the sample appears to be been analyzed by the Public Analyst and he prepared report. The report received from the Public Analyst indicated that the sample of chilly powder collected from the shop of the accused was adulterated as plenty of rice stretch were found therein. On 23.09.1996, the Food Inspector forwarded all the cases papers including the Page 2 of 15 R/CR.RA/224/2005 CAV JUDGMENT report of the Public Analyst and after getting necessary sanction under Section 20 of the Act, the Food Inspector filed complaint before the Court on 03.12.1996. On 04.12.1996, the accused was informed about filing of criminal case. On 13.12.1996, the accused was informed about his right to get the sample of the said food item reanalyzed by the Central Food Laboratory under Section 13(2) of the Act.
3.2 On 21.12.1996, the applicantaccused applied for reanalysis of sample (Exh.4). He paid necessary fees, whereupon on 13.03.1997, the sample was sent by learned Magistrate to the Central Food Laboratory at Calcutta (Exh.8). The report of the Central Food Laboratory dated 11.07.1994 declared the sample in question to be adulterated. The charge was framed against the applicantaccused on 14.07.2000 (Exh.49). The trial culminated into conviction and sentence as above.
4. Learned advocate for the applicant assailed the order of conviction and sentence by raising various contentions, firstly that Rule 17 and Rule 18 of the Prevention of Food Adulteration Rules, 1955, were violated. He submitted that Rule 18 inter alia provides that a copy of memorandum and specimen impression of the sealed used to seal the packet shall be sent in a sealed packet to the Public Analyst by any suitable means immediately, but not later than the succeeding working day. It was submitted that there was no evidence that the Food Inspector had complied Page 3 of 15 R/CR.RA/224/2005 CAV JUDGMENT with the said requirement of sending memorandum and specimen impression of the seal in a sealed packet. Secondly, it was submitted that Rule 4 of the Rules was also breached inasmuch as there was no evidence to indicate that the memorandum and the memorandum bearing facsimile and rubber stamp were sent to the Public Analyst and that only acknowledgment slip was produced. It was further submitted that there was no comparison by the Central Food Laboratory that the seal were tallied with the specimen impression of the sealed received separately in a sealed cover.
4.1 Learned advocate for the applicant pressed into service following decisions to support his contentions, (i) Shankarlal Mangilal Jain vs. State of Gujarat being Criminal Revision Application No. 110 of 1994 decided on 15.09.2000 (ii) 1987 Supp. SC 183, (iii) Mohanlal Manganlal Sindhi vs. State of Gujarat [1977 GLR 1002], (iv) State of Gujarat vs. Shah Sumanchandra Roshanlal being Criminal Appeal No. 33 of 1993 decided on 18.12.2001 and (v) State of Gujarat vs. Shantaben wd/o. Bhoi Dhulabhai Devabhai [1963(0) GLHELHC 212465]. Learned advocate for the applicant also relied on the following decisions in support of his contentions in respect of non compliance of Rule 17 and Rule 18 of the Rules,
(i) State of Himachal Pradesh vs. Narendra Kumar [2004 (4) SCC 567] and (ii) State of Gujarat vs. Ghanshyam Mohanlal Manek [2008 (1) Crimes(HC) 472].
4.2 Learned advocate submitted in the third place Page 4 of 15 R/CR.RA/224/2005 CAV JUDGMENT that the sample was sent for reanalysis to the Central Food Laboratory and the sample was found to be adulterated by the Central Food Laboratory; it was contended that the accused was required to ask question in his further statement under Section 313 recorded by the Magistrate with regard to the report of the Central Food Laboratory, but no question in that respect was asked. It was submitted that this resulted into causing of serious prejudice to the applicant. In that regard, learned advocate relied on the decision of the Apex Court in Kaur Sain vs. State of Punjab [AIR 1974 SC 329]. Lastly, learned advocate submitted that there was no evidence to show that the sample was collected by the Food Inspector in a manner so as to make it of homogeneous character.
5. As regards alleged breach of Rule 18, learned Sessions Judge has concluded that requirement of sending memorandum and specimen impression of seal used to seal the packet, could be said to have complied with, by observing from the record, as under, "Here in case on hand first time sample is sent by the food inspector to public analyst, accordingly food inspector has stated in his deposition before the trial court that he has sent copy of specimen seal impression immediately to the public analyst on the next day and copy of that seal is produced vide Exh.29, above stated fact is not challenged by the defense side. Not only that report of Public Analyst is in record at Exh.36 in which it is clearly mentioned that "The seal fixed on the container and the outer cover of the sample tailed with specimen impression of seal separately sent by the Food Inspector and the sample was in a condition fit Page 5 of 15 R/CR.RA/224/2005 CAV JUDGMENT analysis to be as follows".
it is also admitted fact that on request made by the appellant/accused, the second part of sample was sent to Central Food Laboratory by the court as provision made in the P.F.A. Act. As the provision made in the Act it is mandatory for the court to comply all the relevant provisions regarding sending of sample to Central Food Laboratory. On perusal of report of Central Food Laboratory which is in record at Exh.16, in which it is clearly mentioned that "The seals were intact and tailed with the specimen impression of seals received separately along with copy of the memorandum."
5.1 A closure examination of the relevant documents on record did not reveal so as to conclusive hold that there was a breach of requirement of Rule 4(1)(a) or Rule 4(1)(b) regarding sending the sample in a sealed packet together with a Memorandum in the prescribed form, or that there was a breach of Rule 17 or Rule 18 of the Food Adulteration Rules in respect of requirement of dispatching the sample in a sealed packet in a different way as prescribed thereunder. The contentions of learned advocate for the applicant on those counts therefore could not be countenanced.
6. It was the contention raised by learned advocate for the applicant that there was a vitiating aspect in the matter inasmuch as in the entire statement of the applicantaccused recorded under Section 313 of the Code of Criminal Procedure, he was not asked any question about the report of Central Food Laboratory, Calcutta in which the sample of chilly powder was declared to be adulterated. Upon going through the Page 6 of 15 R/CR.RA/224/2005 CAV JUDGMENT statement under Section 313 of the Code, it was noticed that the contention was one of substance. No question whatsoever was asked in that regard. The object and purpose of recording statement under Section 313 of the Code is to put incriminating aspect in the evidence and thereby to extend opportunity to the accused to raise defence in respect thereof. The sample in the instant case having not been found to be adulterated as per the Public Analyst's report, was not sent to the Central Food Laboratory as per Section 13(2) of the Act upon such option being exercised by the applicantaccused. The Section inter alia provides that the report of the Central Food Laboratory would supersede the report of the Public Analyst and shall be final. When the report of the Central Food Laboratory declared the chilly powder to be adulterated, it became basis of conviction of the applicant. It was in any view an incriminating circumstance. The accused was required to be put a specific question in that regard so that he could raise his defence.
6.1 This Court in Shankarlal Mangilal Jain vs. State of Gujarat being Criminal Revision Application No. 110 of 1994 decided on 15.09.2000, dealing with the same question, observed and held, "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 Director of Central Food Laboratory? To which he had answered that, "the Page 7 of 15 R/CR.RA/224/2005 CAV JUDGMENT report is false". The accused was not explained the contents of the report of the Director of Central Food Laboratory, and 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."
6.2 The aforesaid decision was relied on again in Chandubhai Laljibhai Patel vs. State of Gujarat being Criminal Revision Application No. 331 of 2002 decided on 18.02.2010, in which the contention was whether the report of the Central Food Laboratory was received after the compliance of procedure envisaged in the Rules. No question was asked to the accused while recording his statement under Section 313 of the Code. The Court observed, "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 under Section 313 of the Cr. PC 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....." (para 15) If the facts and circumstances emerging from the Page 8 of 15 R/CR.RA/224/2005 CAV JUDGMENT 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 trail 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."
(para 16) 6.3 Going back to the present case, the report of the Central Food Laboratory sent after reanalysis of the sample declaring it to be adulterated, was an important and material aspect, all the more, it was an incriminating circumstance against the accused. The accused was required to be asked a specific in that regard so that he could offer his explanation. By not asking any question whatsoever, a prejudice could be said to have been caused to the accused and for each material aspect, incriminating in nature forming part of the evidence in the case, the accused had right to offer his explanation and raise defence. The omission with regard to nonasking of question and thereby depriving the accused from opportunity of offering his plausible explanation, was clearly prejudicial and vitiating factor. The learned Judge below was entirely wrong in treating the said lapse as technical.
Page 9 of 15 R/CR.RA/224/2005 CAV JUDGMENT7. There exists a weighter reason, when the last contention raised by learned advocate for the applicant is adverted to. There is no gainsaying that it is quite necessary that the sample of food items collected from the bulk quantity and sent for analysis as to its contents and constituents, has to be one representing the quality of the whole stuff. The sample has to have homogeneous character. The compliance of the requirement is to be assured and adhered to while collecting of the sample. The manner of selecting the part quantity from the total quantity has to be such so as to make the sample representative, for variety of reasons, which may be natural factor or humanattempted acts that it may happen that some parts of the same food items may, the stuff may vary in terms of its purity.
7.1 In the present case, it was chilly powder in bulk kept by the applicant at his shop, from which the sample of 350 grams was taken. The chilly powder was lying in a bag. The bag was open bag exposed to vagaries of outer diluting factors. A possibility was not be ruled out that the upper layer of the bulk in the open bag could be less pure than the stuff in the inner parts of the bag. The burden to show that the sample taken was representative character has to be satisfactory discharged by leading explicit and cogent evidence so as to excommunicate the possibility of absence of element of representativeness or homogeneity in the sample.
Page 10 of 15 R/CR.RA/224/2005 CAV JUDGMENT7.2 The Supreme Court in State of State of Kerala vs. Alasserry Mohammed [AIR 1978 SC 933] while examining the nature of Rule 22 of the Rules and holding it to be directory, discussed the concept of representative character of the sample, stating, "It was argued with reference to Methods in Food Analysis, second edition by Maynard A. Joslyn that the sample must be a representative sample. It is with that view that the quantity was prescribed in Rule22 and should not be permitted to be tampered with in any manner. We are not impressed by this argument at all. A representative sample has got a different connotation, meaning and purpose in commercial transactions. If, for instance, an average price is to be fixed for a huge quantity of, say, wheat lying in bulk in different storages, then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price. Taking sample from one storage will not be sufficient. In our statute the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food. If the food sold to the Inspector is proved to be adulterated,it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person. A person who stores or sells such sample is liable to be punished under section 16(1)(a)
(i) of the Act."
7.3 The sample of food stuff taken from the bulk quantities, in other words, must represent the whole in its character. In Food Inspector, Municipal Corporation vs. Madanlal Ramlal Sharma [AIR 1983 SC 176], the Apex Court particularly held, Page 11 of 15 R/CR.RA/224/2005 CAV JUDGMENT "Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample. We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose churning is one of the methods of making the sample homogeneous and representative. But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument and that churning done by hand would not provide a homogeneous and representative sample. Common sense dictates that articles of food like milk and curd when churned with hand would properly mixup from top to bottom. More so when the quantity is either 600 grams which was the quantity purchased out of 2 1/2 Kgs. which was the quantity in the container. There was evidence that the churning was done by spoon. But even if the High Court found that evidence unreliable and evidence of defence witness Devsibhai Ramjibhai so much reliable that it was prepared to act upon it disagreeing with the other evidence, the evidence of Devsibhai Ramjibhai was that churning was done with hand and he did not say that the churning was not effective."
7.4 Relying on the above decision, this Court in Harshadbhai M. Dhutt vs. Gramodygo Kendra being Criminal Appeal No. 37 of 1990 decided on 08.11.2009, reiterated, "The above quoted observations make it clear that before purchasing sample for analysis it should Page 12 of 15 R/CR.RA/224/2005 CAV JUDGMENT be made homogeneous and representative in character. Further in K. Harikumar v. Food Inspector, Punaloor Municipality, 1995 Supple.(3) SCC 405, the Supreme Court has held that stirring and churning of curds before taking of sample is necessary and if possible, curds must be given a vertical cut. What is emphasised therein is that in order to attain homogeneity in curds, stirring/churning, as the case may be, becomes necessary for the ingredients of milk solid non fat and milk solid fat getting a uniform consistency in order to determine the percentage in their completeness. Thus, the law on the point is that if possible, the sample purchased for analysis should be made homogeneous and representative in character. It is an admitted position that the sample purchased by the Food Inspector in this case was not made homogeneous at all and, therefore, the learned Magistrate has rightly given the benefit of doubt to the respondents no.1 to 3 because in order to preserve turmeric powder, some preservative might have been added by the vendor."
8. On an attentive reading the evidence of the complainantthe Food Inspector(Exh.22), he inter alia stated about the manner in which the sample of chilly powder was taken from the shop of the applicant. He stated that he reached the place in the morning hours and reaching at the shop of the applicant, he collected the sample of chilly powder. He stated that on seeing the chilly powder which was lying in an open bag, he deemed it proper that it was required to be tested. The evidence of the complainant suggested that the bag in which the chilly powder was lying was kept open and he was not able to say as to since when the bag was lying open. He stated that 350 grams chilly powder was taken therefrom. The complainant stated that from the open bag, the sample was taken and about Page 13 of 15 R/CR.RA/224/2005 CAV JUDGMENT the original manufacturer thereof, he did not make any inquiry. Now, from the evidence (Exh.22) of the complainant, it comes out clearly that the sample was taken from the open bag. Nothing else is stated. It is well settled that while taking sample of a food item, the sample should be taken in a manner so as to ensure that it represents homogeneous character. The evidence of the Food Inspector himself shows that he took sample of chilly powder readily from the open bag without doing anything. He did nothing to ensure that the sample being taken from the open bag was a representative sample of the entire quantity of chilly powder in the bag. What was required of the Food Inspector was to see that the entire quantity in the bag was churned and got intermixed so that the sample taken therefrom has the homogeneous character.
8.1 On the aforesaid, the benefit of doubt has to accrue in favour of the accused and his acquittal has to follow.
9. For the foregoing reasons and discussion, the conviction recorded against the applicantaccused and consequential order passed against him could not sustain. The judgment and order dated 27.09.2001 passed by learned Judicial Magistrate (First Class), Kalavad, in Criminal Case No. 510 of 1996, as well as impugned judgment and order dated 04.04.2005 passed by learned Additional Sessions Judge, Fast Track Court No. 4, Jamnagar, dismissing Criminal Appeal No. 18 of 2002, confirming the conviction and sentence have to Page 14 of 15 R/CR.RA/224/2005 CAV JUDGMENT be set aside and the same is hereby set aside. Revision Application is allowed.
10. Rule is made absolute. The bail bond given by the applicant shall stand cancelled.
The Registry to send back the record and proceedings.
(N.V.ANJARIA, J.) chandrashekhar Page 15 of 15