Gujarat High Court
Suresh vs Navalmal on 23 March, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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CR.A/623/1991 2/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 623 of 1991
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
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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 ?
1
Yes, 2 to 5 No
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SURESH
H RAJPUT - Appellant(s)
Versus
NAVALMAL
PESHUMAL(ABATED) & 5 - Opponent(s)
=========================================================
Appearance :
MR
PRANAV G DESAI for
Appellant(s) : 1,
None for Opponent(s) : 1,
MR KM PARIKH for
Opponent(s) : 2,
NOTICE SERVED for Opponent(s) : 3 - 4.
MR AJAY
R MEHTA for Opponent(s) : 5,
MS CM SHAH, ADDITIONAL PUBLIC
PROSECUTOR for Opponent(s) :
6,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 23/03/2010
ORAL
JUDGMENT
Heard Mr. Ajay R. Mehta learned Counsel for respondent No.5 and learned Advocate Ms. C.M. Shah for respondent No.6. None is present otherwise.
The Vadodara Municipal Corporation has preferred this Appeal through its Food Inspector under Section 378 of the Code of Criminal Procedure challenging the order of acquittal dated 15.12.1989 passed by Judicial Magistrate First Class in Criminal Case No.1005/1983 wherein the Court acquitted the accused of the charge of committing offences punishable under Section 16 of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as the 'PFA Act' for the sake of brevity. The facts in brief leading to the filing of this appeal deserve to be set out as under.
Respondent No.1 who was the owner of the shop from where the sample was collected died during the trial; this Court has recorded that the appeal stood abated, respondent No.2 is the seller who actually was responsible for selling the food article in question, respondent Nos.3 and 4 were distributors of the food article and respondent No.5 was producer of the said food article. The original complainant Food Inspector in discharging of his duties as such, on 29.12.1983 at about 9.30 in the morning, visited the shop of the accused No.1 in presence of panch witness at the time when the accused no.2 was present in the shop. The accused no.2 was dealing in edible items, stationery, cutlery etc. The complainant noticed that in the showcase of the shop, packets of 'chat masala' of 100 grams each were displayed of MDH Brand. The complainant after notifying his intention to purchase the same for purpose of examination, purchased 600 grams of 'chat masala', i.e. 6 packets of 'chat masala' on payment of Rs.26.10 and after dividing the same into 3 parts, in accordance with law, one portion of the said masala was sent to analyst for examination and remaining two portions were sent to legal health authorities as per law. On receipt of the report of the public analyst containing the opinion that the sample did not conform to the provisions of the PFA Act and rules and the sample was misbranded and represented sub-standard curry powder and it did not conform to the ingredients, the accused were responsible for committing offences punishable under Section 16 of the PFA Act. The accused no.3 had sold this 'chat masala' to the original vendor and hence, they being the distributors, 3 and 4 were roped in. The accused No.5 being producer was roped in vide order dated 18.12.1998. The Court after appreciating the evidence on record came to the conclusion that prosecution could not prove its case beyond doubt and hence, on account of the failure on part of the prosecution in proving its case, acquitted the accused respondent herein above of the charge of committing offences punishable under Section 16 of the PFA Act. The said acquittal order dated 15.12.1989 is impugned in this Appeal under Section 378 of the Code of Criminal Procedure.
The appellant has assailed the order of acquittal on the ground that the learned Judge blatantly erred in appreciating the evidence on record and hence, the order of acquittal deserves to be quashed and set aside. It is also contended that the report of the public analyst clearly contained the sample was shown to be adulterated and it was sub-standard and was not in accordance with law of the PFA Act, 1954 and rules.
Mr. Ajay R. Mehta learned Advocate appearing for respondent No.5 submitted that this being an acquittal appeal, ordinarily the Court would not interfere with the order of acquittal unless and until it is established that the order is so perverse as to cause miscarriage of justice. Mr. Mehta for respondent No.5 further contended that the Public Analyst's Report clearly indicates that the sample food article is examined by applying the standards which were prescribed under Item No.A.05.21 curry powder whereas the sample food article was admittedly not curry powder and was 'chat masala' only. When 'chat masala' is not prescribed anywhere, it was not open to public analyst to fall back upon the standards of curry powder and the standard prescribed cannot be applied to the food article i.e. 'chat masala'. Mr. Mehta has relied upon the decision of Delhi High Court in the case of Pale Ram V. State reported in 1976 All India Prevention of Food Adulteration Journal, Page 203 wherein also the sample food article was that of 'chat masala' and it was examined by the public analyst by applying the standard prescribed for curry powder under Item No.A.05.21. The Court clearly rejected the contention that if 'chat masala' is not figuring in rule books and if the ingredients are same or similar, then the curry powder ingredients and standard should be applied for examining 'chat masala'. Mr. Mehta submitted that the Court in view of this clear finding may not interfere with order of acquittal in exercise of power under Section 378 of Code of Criminal Procedure.
This Court has heard learned Counsel and has also perused the records and proceedings. The undisputed fact which is required to be noted is that the food article is opined to be adulterated and misbranded by the public analyst on the basis of applying standards prescribed for curry powder under Item No.A.05.21. Thus, applying of standards prescribed for curry powder to 'chat masala' is not approved by Delhi High Court in the case of Pale Ram V. State (supra). In the instant case the order of acquittal is required to be upheld on other grounds also namely :-
The food article said to have been misbranded when the charge of misbranding is sought to be proved, then the labels are to be collected by the Food Inspector. In the instant case, as it has come out on record, and as the Court has recorded in its discussion on Point No.2, the Food Inspector has admitted that he had not collected any labels and as such he admitted, that he has not sent any labels to the legal health authorities also. The food inspector has gone ahead and fairly admitted that it was not a case of adulteration but merely a case of misbranding only. The Court has rightly appreciated this aspect and come to the conclusion that on such evidences, the conviction cannot be recorded and has a finding that prosecution failed in proving his case beyond doubt.
This Court is of the view that being an acquittal appeal, the Court should not interfere in the order of acquittal unless and until, it is established by the appellant that the order of acquittal has resulted in discord of justice. In the aforesaid case, the aforesaid discussion is aptly shows that the order of acquittal is wholly just and proper and therefore, this Court in exercise of power under Section 378 of Code of Criminal Procedure would not interfere with the same. In the end, the appeals fails and is rejected.
(S.R. Brahmbhatt, J.) Caroline Top