Gujarat High Court
Jagdish vs State on 18 February, 2010
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
Print
CR.RA/153/2002 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 153 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
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 ?
=========================================================
JAGDISH
CHHATARAM MULVANI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DK MODI for MR MG NAGARKAR
for
Applicant(s) : 1,
MR DC SEJPAL, Learned ASST. PUBLIC PROSECUTOR
for Respondent(s) : 1,
RULE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 18/02/2010
ORAL JUDGMENT
1. This Criminal Revision Application is preferred by the applicant Jagdish Chhataram Mulvani under section 397 read with section 401 of the Code of Criminal Procedure challenging the legality and validity of the judgment rendered by Ld. Additional Sessions Judge, Junagadh on 16.03.2002 in Criminal Appeal No.41/1997, whereby the Ld. Additional Sessions Judge, dismissing the said appeal, upheld the judgment and order recording conviction of the applicant, rendered by Ld. Judicial Magistrate First Class, Junagadh on 15.09.1997 in Criminal Summary Case No.6110/1994. The Ld.Judicial Magistrate First Class, by judgment and order rendered on 15.09.1997, recorded the conviction of the applicant, who was original accused therein for the offence punishable under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 (in short the PFA Act ) and was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.1,000/-, and in default of payment of fine, simple imprisonment for one month.
2. The prosecution case, in nutshell, is that the respondent No.2, Food Inspector, who was original complainant before the Trial Court, visited the shop of the applicant-accused on 01.10.1993 at about 6:00pm and collected sample of tamarind water (ambali-nu pani). The sample was forwarded to Public Analyst and it was reported that the food article was adulterated.
2.1 After obtaining necessary sanction for the purpose of launching prosecution, the respondent No.2 Food Inspector, filed a Criminal Complaint in the Court of learned Judicial Magistrate First Class, Junagadh, which was registered as Criminal Case No.6110/1994. Since the applicant-accused did not plead guilty, the prosecution adduced its oral and documentary evidence. After considering the evidence on record and the submissions made on behalf of both the sides, the Ld.Judicial Magistrate First Class recorded conviction of the applicant-accused for the offence punishable under section 16 read with section 7 of the PFA Act and awarded the sentence as hereinabove referred to, in this judgment.
3. The applicant challenged his conviction by preferring Criminal Appeal No.41/1997 in the Court of Ld.Sessions Judge, Junagadh. Learned Additional Sessions Judge, Junagadh, after hearing both the sides, dismissed the appeal and confirmed the conviction and sentence awarded by the Trial Court to the applicant-accused. This has given rise to the present revision petition.
4. I have heard the arguments of Mr.D.K.Modi for Mr.M.G.Nagarkar, learned advocate for the applicant and learned Asst. Public Prosecutor Mr.D.C.Sejpal for the respondents.
5. Learned advocate Mr.Modi for the applicant submitted that in the instant case there is a clear violation of mandatory requirements laid down under the Prevention of Food Adulteration Rules, 1955 (in short the PFA Rules ). It is submitted that the Food Inspector in his evidence clearly admits that the glass-bottle wherein the sample was collected was not cleaned and dried on the spot.
5.1 It is further submitted that in the instant case there is non-compliance of mandatory requirements laid down under Rule-14 of the PFA Rules. My attention was drawn to Exh.29, wherein the Public Analyst, in token of receipt of sample, has made remarks that one unsealed wooden-box containing the sample was received. My attention was also drawn to the evidence of Food Inspector, wherein the Food Inspector stated that the sample was forwarded to the Public Analyst in a khakhi bag. It is submitted that as per Rule-17 of the Rules the container of the sample shall have to be dispatched in a sealed container.
5.2 Learned advocate Mr.Modi relied upon certain judgments, which shall be discussed in this judgment at the appropriate place. Ultimately, it is submitted that the revision application may be allowed and the impugned judgment rendered by the subordinate Courts may be set aside and the applicant may be acquitted of all charges levelled against him.
6. Learned APP Mr.Sejpal for the respondents vehemently opposed this application and submitted that the powers of this Court are very limited under section 397 read with section 401 of the Criminal Procedure Code. It is submitted that there is a concurrent findings of two subordinate Courts on factual aspects and about the compliance of all the mandatory requirements laid down under the Act and the Rules.
6.2 My attention was drawn to paragraph-8, internal page-10, of the judgment rendered by the First Appellate Court, wherein dealing with the contention regarding non-compliance of Rule-14 of the Rules, the Ld.Addl. Sessions Judge observed that as deposed by the Food Inspector the glass-bottles were cleaned with Nirma powder in the office of the Food Inspector and that even the utensil (tapeli) was also cleaned with water in his office.
6.3 It is, therefore, submitted that all the mandatory requirements were duly and fully complied with and there is no reason whatsoever to interfere with the concurrent findings arrived at by the two subordinate Courts. Ultimately, it is submitted that the revision petition may be dismissed.
7. I have perused the certified copies of the judgments rendered by the two subordinate Courts, annexed with this petition. About compliance or otherwise of Rule-14 of the PFA Rules as held by this Court in the case of C.D.Patel, Food Inspector Vs. Popatlal Jivaji Thakor, reported in 2005(1) FAC 46, it was held that the sample bottles were not made clean at the time when the sample was collected. This Court ultimately came to the conclusion that this amounts to breach of mandatory requirements laid down under Rule-14 and the Trial Court was right in acquitting the accused. My attention was drawn to the case of Sudhirchandra B. Joshi, Food Inspector, Baroda Vs. Arvindkumar Naranbhai Patel & Ors., reported in 1995(2)GLH (U.J.)24, wherein this Court dealing with the provisions contained under Rule-14 of the PFA Rules, observed that in that case according to the evidence of Food Inspector, sample bottles were cleaned by his peon, but the peon was not examined. It was observed that the mandatory requirements laid down under Rule-14, therefore, are violated and duty is cast on the prosecution, not only to comply with mandatory provision, but to lead evidence at the trial for its compliance. Almost similar was the situation in the case of State of Gujarat through S.S.Patel, Food Inspector & Anr. Vs. Shyamal Tolaram Kourani, decided by this Court on 13.05.2009 in Criminal Misc. Application No.16203/2008 in Criminal Appeal No.3036/2008.
7.1 Keeping in mind the ratio laid down by this Court in the above judgments regarding the mandatory requirements laid down under Rule-14 of the PFA Rules and considering the facts and circumstances of the instant case, though it is true that according to the Food Inspector the sample-bottles were cleaned in his office with the help of Nirma powder and the utensil (tapeli) was also cleaned in his office, he admits in his evidence that the bottles and the utensil were not cleaned at the place from where the sample was lifted. In the aforesaid background and considering the judgments delivered by this Court referred above, I am of the considered opinion that the mandatory requirements laid down under Rule-14 cannot be said to have been duly and fully complied with. The Food Inspector in his evidence nowhere states as to who cleaned the bottles and the utensil in his office and when the same were cleaned.
7.2 Relevant paragraph of Rule-17(a) of the Rules runs as under :
Rule-17 : Manner of dispatching containers of samples : The containers of the sample shall be dispatched in the following manner, namely :
(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means;
(b)....................
7.3 In the instant case the Food Inspector in his deposition stated that the samples were forwarded to Public Analyst in a packed khakhi bag. In that background, considering the receipt issued by Public Analyst Exh.29 in the remarks column, it is specifically referred that one unsealed wooden-box containing the three bottles was received. Apart from the fact whether the sample bottles were forwarded in a wooden-box or khakhi bag, but the fact remains that the same was unsealed. My attention was drawn to the judgments rendered by this Court in the case of State of Gujarat Vs. Barkatali Pyarali Hasnani C/o. Pyarali Mavjibhai & Ors. on 31.01.2007 in Criminal Appeal No.509/2004. Almost similar was the situation about the manner and method in which Food Inspector in that case forwarded the sample bottles to the Public Analyst and there was a positive evidence that the container was not sealed. This Court, therefore observed that there was a clear breach of mandatory provision of Rule-17 of the Rules. My attention was drawn to the case of State of Gujarat Vs. Rambhai Karsanbhai Malan, reported in 2007(2)FAC 35, wherein the sample was sent by the Food Inspector to Public Analyst in an unsealed paper-box, which was held to be non-compliance of the mandatory requirements laid down under Rule-17 of the Rules.
7.4 In the result, in light of the above discussion in the instant case, it can safely be stated that the mandatory requirements laid down under Rule-14 and Rule-17 of the Rules cannot be said to have been duly and fully complied with. The copy of evidence of Food Inspector Exh.18 and the copy of receipt Exh.29 referred by learned advocate Mr.Modi for the applicant be taken on record.
8. In light of the entire above discussions, I am of the considered opinion that both the subordinate Courts failed to consider the relevant provisions of law and recorded the conviction of the applicant-accused. The revision petition, therefore, deserves to be allowed.
9. For the forgoing reasons, the revision petition is allowed. The judgment and order rendered by the Ld.Addl. Sessions Judge, Junagadh dated 16.03.2002 in Criminal Appeal No.41/1997, whereby, while dismissing the said appeal the learned Additional Sessions Judge, Junagadh upheld the judgment and order rendered by learned Judicial Magistrate First Class, Junagadh on 15.09.1997 in Criminal Summary Case No.6110/1994, whereby the Ld.Judicial Magistrate First Class, Junagadh, recorded conviction of the applicant-accused for the offence punishable under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 and awarded the sentence thereunder, are hereby set aside. The applicant-accused is ordered to be acquitted of all the charges levelled against him. Fine, if paid, be refunded to him. Rule is made absolute.
(J.C. Upadhyaya, J.) ~gaurav~ Top