Gujarat High Court
Manharlal vs Jentilal on 16 March, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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CR.A/2230/2009 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2230 of 2009
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MANHARLAL
CHUNILAL PATEL FOOD INSPECTOR - Appellant(s)
Versus
JENTILAL
KESHAVJI GANATRA (VENDOR) & 2 - Opponent(s)
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Appearance
:
MR
NALIN K THAKKER for Appellant(s) : 1,
None for Opponent(s) : 1 -
2.
MR MG NANAVATY, ADDL.PUBLIC PROSECUTOR for Opponent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 16/03/2010
ORAL
ORDER
1. The appellant, Bhuj, Nagarpalika through its Food Inspector, has approached this Court under Section 378 of the Code of Criminal Procedure, 1973, challenging the order of acquittal dated 14.9.2006 passed by the Judicial Magistrate (First Class), Bhuj-Kachchh in Criminal Case No. 1578 of 1995 acquitting the respondents-accused of the charge of committing offence punishable under Section 7(1)(5) and Section 2(1A)(m) of the Prevention of Food Adulteration Act, 1954 and Rule-5 of Prevention of Food Adulteration Rules, 1955.
2. This Court (Coram: Z.K. Saiyed, J. ) on 11.11.2009 granted leave in Criminal Miscellaneous Application No. 14199 of 2006 in respect of other appeal and record and proceedings have arrived.
3. This Court heard learned advocate Shri Nalin K. Thakker for the appellant (original-complainant), at the admission stage of called upon him to take the Court through the evidence on record so that the admissibility of the appeal itself can be decided at this stage. Accordingly, the matter was heard at length.
4. It was the case of the prosecution that the Food Inspector at the relevant time, in discharge of his duties as such on 28.3.1995 at about 9:00 hrs. visited the shop of the vendor accused where he was dealing in milk and milk product. Food Inspector found milk containing in aluminum cans. On enquiring, it was ascertained that the buffalo milk was for sale. After notifying his intention to collect the sample, he collected 660 ml. of milk in a steel jug which was cleaned with clean clothe in the presence of panch and after dividing the same into three equal parts poured the same into three glass jars which were also cleaned and which was shown to be cleaned to the panch witnesses. After dividing the same into three equal parts and collecting the glass jars, requisite amount of formalin preservative was also added into three glass jars and the jars were sealed in accordance with law. After applying the seal, signature etc, entire formality was completed in the presence of panch witnesses and panchnama was drawn. One of the samples was sent to the Public Analyst and other two samples were sent to the Local (Health) Authority. The Public Analyst in his report dated 24.4.1995 opined that the food article, namely, milk did not conform to the standards laid down in the Rules and, therefore, the same was opined to be adulterated after obtaining requisite sanction from the competent authority i.e. L.H.A, Bhuj on 19.7.1995, the complaint came to be filed. The Court after appreciating the evidence on record, came to the conclusion that the prosecution could not prove its case beyond doubt and, therefore, benefit of doubt was granted to the accused and acquitted him vide order dated 14.9.2006 which is impugned in the appeal filed under Section 378 of the Code of Criminal Procedure, 1973.
5. Shri Thakker learned advocate appearing for the appellant contended that the reasoning of the trial Court in respect of breach of Rule 14 cannot be accepted as the cleaning of steel jug with clean clothe without using any water in itself cannot be said to be improper cleaning so as to attract breach of Rule 14 of the Prevention of Food Adulteration Rules, 1955. On the contrary the cleaning of steel jug wherein the milk was collected in the first instance with water would rather render it difficult for making the steel jug completely dried. Therefore, non-applying of water for cleaning steel jug in itself have been viewed as non-compliance of the Rule 14 of the Prevention of Food Adulteration Rules, 1955. Shri Thakker further submitted that the panch witnesses have not supported the case. However, the non-supporting of panch witnesses in the case of prosecution in itself cannot be a ground for recording acquittal. Shri Thakker further submitted that the non-examination of the peon, who had accompanied the Inspector to the shop of the vendor in itself should not have been viewed to be fatal to the case of the prosecution.
6. Shri Thakker, however, could not controvert the fact that the panchnama as it has come on record, clearly indicate that the procedure of collecting the sample was not strictly in accordance with law. Shri Thakker could not controvert the fact that the panchnama clearly indicate that the milk sample was firstly collected in a jug. Thereafter, it was divided in three equal parts and taken into class jars and after taking it into the glass jars, requisite formalin preservative was added in all the three bottles. These facts have come on record in Panchnama as well as in the testimony of the Food Inspector. These facts can, therefore, not be controverted by Shri Thakker and, therefore, that has to be accepted as correct narration of the collecting of sample.
7. This Court is of the view that the order of acquittal could not be supported by any ground that is available for supporting the order of acquittal. Even if those grounds are not adverted to by the trial Court while recording the acquittal but if grounds are available which could be independent of the ground adverted to by the trial Court for recording acquittal and if those grounds are being capable to be made out from the evidence and material on record, then the order of acquittal needs no interference under Section 378 of the Code of Criminal Procedure, 1973. In the instant case as could be seen from the panchnama and the testimony of the Food Inspector that the formalin preservative in the milk sample was added after the sample milk was divided into three parts and collected in the three glass jars. The law in respect of adding formalin in the milk food article is now clear that the formalin has to be added before the sample food article is divided into three parts. The reliance could be placed upon the decision of this Court (Coram: D.N. Patel, J. ) in the case of State of Gujarat vs. Kaushikbhai Ambalal Patel decided on 20.12.2004 in Criminal Appeal No.489 of 2002 and in the case of State of U.P vs. Badri reported in 1998(2) Prevention of Food Adulteration Cases 18. In view of this lacuna in collecting the food sample and adding the preservative which was required to be added prior to it being divided into three parts, the order of acquittal cannot be said to be in any way perverse. At this stage, it is also required to be noted that though delay in all cases cannot be said to be fatal but the delay is also one of the grounds which needs to be borne in mind at the time of deciding the acquittal appeal. Shri. Thakker was justified in relying upon the decision of this Court in the case of State of Gujarat vs. Haiderali Rasulbhai Momin reported in 2000(1) GLR 572. In support of his submission he submits that the delay was not fatal but this Court is of the view that in acquittal appeal under section 378 of the Code of Criminal Procedure when delay is indicated and when the food article is that of milk and adding of preservative was not in accordance with law, then collectively all the circumstances should persuade this Court in not interfering with the order of acquittal and hence, the appeal does not deserve to be admitted and, therefore, the same is rejected at the admission stage.
(S. R. Brahmbhatt, J. ) sudhir Top