Gujarat High Court
State Of Gujarat vs Kaushik Nagindas Modi on 6 March, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/309/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 309 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
=============================================
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 or any order made thereunder ?
=============================================
STATE OF GUJARAT - Appellant (s)
Versus
KAUSHIK NAGINDAS MODI & 3 - Opponent (s)
=============================================
Appearance:
MR KL PANDYA, ADDL. PUBLIC PROSECUTOR for the
PETITIONER(s) No. 1
MR DK MODI for the RESPONDENT(s) No. 1,2,3,4
MR MD MODI for the RESPONDENT(s) No. 1,2,3,4
=============================================
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 06/03/2018
ORAL JUDGMENT
1. Judgment and order dated 12.11.2008 passed by the Judicial Magistrate, First Class, Pardi recording acquittal for the respondent nos.1, 2, 3 and 4 qua the offences punishable under Sections 2(i)(a)(a), 7(i) and 16(i)(a)(ii) of the Prevention of Food Adulteration Act (for short "the Act") is assailed in this Appeal under Section 378(4) of the Code of Criminal Procedure (for short Cr.P.C.).
Page 1 of 5R/CR.A/309/2009 JUDGMENT
2. The Food Inspector Mr. N.V. Mehta claims to have purchased three samples weighing 200 gms. each of Amok Brand Lime Chilly Pickle bearing batch no.0233 with date of manufacture 1/1992 on 19.11.1992 from accused Modi Narandas Parsottamdas. Accused Bedekar Brothers Pvt. Ltd. is stated to be the manufacturer of the said food article.
3. Upon learning from accused Modi Narandas Parsottamdas that the pickle was purchased by him from Vijay Traders, the Food Inspector procured bill no.509 dated 22.01.1992 from Modi Narandas Parsottamdas showing the sale of pickle by Vijay Traders to Modi Narandas Parsottamdas. The Food Inspector PW-1 Exh.-40 solicited the information from Vijay Traders about the food article comprised in above bill. In response, Vijay Traders addressed a letter dated 15.02.1993 produced at Exh.-65, to PW-1 informing him that the food article in question was purchased by him from Bedekar Brothers vide bill no.01708 dated 28.12.1991. The said bill was enclosed with the said letter, however, it did not form the record of the case.
4. Having learnt the source of the food article, PW-1 further inquired with accused Bedekar Brothers Pvt. Ltd. about the said food article in his letter dated 18.01.1992, wherein the reference was made to the date of manufacture and the batch number respectively being 1/92 and 233. PW-1 claimed in his letter that the food article under the said batch number was collected by him from accused Modi Narandas Parsottamdas.
5. After few reminders Bedekar Brothers appointed its nominee to represent its case and on 28.01.1993 replied to the Food Inspector PW-1 by a letter Exh.-71 inter alia denying the sale of food article in question by it to Modi Narayandas Parsottamdas.
Page 2 of 5R/CR.A/309/2009 JUDGMENT
6. It appears that thereafter, the necessary statutory procedure was followed, and eventually on receipt of the report of the public analyst finding deficiency in the statutorily prescribed norms of the food article concerned, as also on receipt of the sanction under Section 20 of the Act to prosecute the accused nos. 1, 2, 3 and 4, the complaint was lodged and eventually the accused having opted for trial rather than pleading guilty to the charge framed against them, they were tried and acquitted.
7. Several contentions have been raised, however, the case can be disposed of by answering two of them namely, (i) that the public analyst's report lacks the material particulars as regards the methodology applied for reaching to the conclusion specified therein as also the report did not constitute primary evidence but, remained a secondary evidence in absence of examination of the analyzer as also in absence of the rough notes prepared by the analyzer, (ii) the sanction suffers from non-application of mind.
8. The legal position that in absence of the examination of the analyzer who actually carried out the test as also in absence of the material or the method relied upon by the analyzer evidence tendered to the court would not be a primary evidence is settled by a plethora of decisions including one rendered by this Court in Vinodbhai Omprakash Gupta Vs. State of Gujarat and Others reported in 2016 (1) FAC 315. It was held in paragraph 9 thus:
"9. The question is whether such a report would constitute 'evidence' within the meaning of Section 3 of the Indian Evidence Act. As per the said provision, to constitute oral evidence, it must be shown that the statements permitted or required to be made before the Court by witnesses in relation to the matters of fact under inquiry were made and to constitute a documentary evidence, all documents including electronic records produced for the inspection must be shown to exist and fact can be said to have been Page 3 of 5 R/CR.A/309/2009 JUDGMENT proved when after considering the matter before it the Court either believe its existence or considers it existence so probable that a prudent man ought under the circumstances of a particular case to act upon the supposition that it exists. In the instant case, the public analyst has merely deposed about the detection of the non- permissible colour in his oral as well as documentary evidence. On the basis of such evidence, the Court was called upon to believe the presence of impermissible colour in the food article. However, the basis on which the Court must believe the said aspect was not laid; inasmuch as, it was not shown to the Court as to what persuaded the public analyst to conclude and record the presence of objectionable colour in the food article. In fact, the public analyst had drawn the conclusion which the Court was required to draw. Even, the methodology adopted by the public analyst or the third party from whom the public analyst obtained report; nor the protocols of the third party on the basis of which the aforesaid conclusion can be reached were placed before the Court. Thus, there remained a serious doubt as to contents of the food articles. The case was thus not proved beyond reasonable doubt. Various Courts including the Apex Court in the aforementioned cases are unanimous on the fact that in absence of complete report constituting an incriminating circumstance against the accused, the case cannot be said to have been established beyond reasonable doubt."
And Mahmad Hanif Shaikh Ibrahim Vs. The State of Gujarat Criminal Appeal No.972 of 1988 decided on 18.01.1994.
9. In the instant case, concededly the public analyst got the sample analyzed by another analyzer who was not examined nor were his protocols or rough notes produced during the trial. The report also lacks the material particulars as regards the method applied by the analyzer to reach to the conclusion recorded therein and thus such a report would not constitute a legally acceptable evidence and respondents were rightly acquitted by the court below.
10. The sanction qua accused no.2 suffers from non-application Page 4 of 5 R/CR.A/309/2009 JUDGMENT of mind inasmuch as the record clearly indicates that in pursuant to the requisition by Food Inspector, the supplier of the food article had enclosed bill no.01708 dated 28.12.1991 with his reply dated 15.02.1993. The said bill, however, did not constitute the record and instead different bill dated 22.01.1992 constituted the record sans explanation about its source. The food article referred to in the above enclosed bill no.01708 dated 28.12.1991 would show the food articles manufactured prior to the said date. It was claimed that the sample weighed 200 gms. The sample collected from the seller bore January, 1992 with batch no.233 as the date of manufacture and that was the sample taken by the Food Inspector. For the said sample, no bill or other material came forth on record of the case. Thus there was nothing to connect the supplier and the vendor of the food article in question. The sanction authority thus did not apply its mind as to how the case for prosecution against the accused no.2 - the supplier was made out.
11. For the foregoing reasons and the reasons recorded by the court below, impugned judgment and order is required to be confirmed in absence of infirmity therein. Accordingly, the Appeal fails and is dismissed.
(G.R.UDHWANI, J.) Dolly Page 5 of 5