Gujarat High Court
State vs Praffulchandra on 23 August, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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CR.MA/910/2010 5/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 910 of 2010
In
CRIMINAL
APPEAL No. 184 of 2010
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
PRAFFULCHANDRA
JAYANTILAL KHIMANI - Respondent(s)
=========================================================
Appearance
:
ADDL.
PUBLIC PROSECUTOR for
Applicant(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/04/2010
ORAL
ORDER
(1) The applicant appellant State has preferred this application, under Section 378 (4) of the Code of Criminal Procedure,1973 seeking leave to file appeal challenging the order of acquittal dated 3.9.2009 passed by the Learned JMFC, Gondal in Criminal Case No.611 of 1998 acquitting the respondent of the charge of committing offence under Section 16 of the Prevention of Food Adulteration Act,1954 (hereinafter referred to as PFA Act for the sake of brevity).
(2) The original complainant in discharge of his duties, visited premises of the accused on 10th March,1998 at around 14:00 hours, in presence of Panch Witness after notifying his intention to collect Loose Chilly Powder for examination and purchased 600 gms. of Loose Chilly Powder, which was taken out in odour less, colour less blank paper and for which Rs.36/- was paid. Thereafter, the said food article was divided into three parts and poured into three colour less, odour less, dried transparent glass bottles. The entire procedure of sealing, affixing, signature etc. were completed in presence of Panch witness in accordance with law. One part of the sample food article was sent to public analyst for examination by S.T. Parcel Service and the remaining two parts were sent to Local (Health) Authority.
(3) The public analyst vide its report dated 31.3.1998 opined that on account of deficiency in ingredients called Non-volatile ether extract, the food article was adulterated. The requisite sanction for lodging prosecution was obtained and the prosecution was lodged. The Court, after examining the evidence on record came to the conclusion that, there were glaring lacuna in the entire procedure of collecting food article and dispatching it to the authorities and, therefore, acquitted the accused of the charge of committing offence punishable under Section 16 of the PFA Act vide its order dated 3.9.2009 in Criminal Case No.611 of 1998, which is sought to be impugned in this application to leave to appeal as well as the appeal.
(4) Shri R.C. Kodekar, learned Additional Public Prosecutor contended that the public analyst as well as the report of Central Food Laboratory are identical in their opinion in asmuch as the food article was found to be deficient in the ingredients called Non-volatile ether extract. The Non-volatile ether extract should have been of 12% as per the provisions of PFA Act, whereas it was actually found to be 7.19% only. The so called procedural lacuna noticed by the Court cannot be said to be so fatal as to record the acquittal of the accused. He submitted that, therefore, the leave be granted and appeal be admitted.
(5) This Court has perused the order impugned in detail and heard the learned advocate for the applicant. Looking to the finding recorded by the Court, which in my view, have remained uncontroverted as the advocate for the appellant applicant also could not point out anything contrary from the judgment and when such lacuna is said to be dealing a serious blow to the case of the prosecution, the order of acquittal needs no interference. When the Court is not inclined to grant leave, there is no question of admitting the appeal. The Court is not inclined to grant leave for the following reasons.
(6) The Court has perused the certified copy of relevant papers which were relied upon by the learned Additional Public Prosecutor at the time of making submissions in favour of the appeal and application. The public analyst report at Exh.33 dated 31st March,1998 indicate that the percentage of Non-volatile ether extract is found to be 7.19% whereas minimum 12% is required. The report of the CFL dated 18.8.1998 indicated that the Non-volatile ether extract was found to be 11.4%. Thus the Non-volatile ether extract, which was found to be only 7.19% and based there upon the sanction was granted itself was said to be more than what was found originally by CFL in its subsequent report. CFL report, which was subsequently obtained at the request of accused, thus the percentage of Non-volatile ether extract was found to be marginally low than the prescribed percentage. This Court in Criminal Appeal No. 1189 of 1997 decided on 2.3.1998 has held that when such a marginal deficiency is found in the percentage of Non-volatile ether extract then the order of acquittal needs no interference. The report of CFL contains that the Director of Central Food Laboratory observed that the seals were intact and specimen of seals were received along with copy of the memorandum. This cannot be said to be relevant and cogent evidence clearly indicative of compliance with Rule 4 (4) of the Prevention of Food Adulteration Rules,1955. Moreover, the Court in its impugned order has recorded finding with regard to lack of evidence. After examining the Rojkam, the Court, while dispatching the sample food article to CFL, has also verified that the seals were intact or not. The aforesaid finding recorded, which, in my view, have remained uncontroverted by the appellant-applicant hereinabove that the order of acquittal cannot be said to be so perverse as to call for any interference under Section 378 of the Code of Criminal Procedure,1973. The leave, therefore, is not required to be granted and is hereby refused. When the leave itself is refused, the appeal also stands dismissed.
(S.R.BRAHMBHATT,J.) Vahid Top