Gujarat High Court
State Of Gujarat vs Anantkumar Chandulal Kanojiya on 6 March, 2023
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 379 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy YES
of the judgment ?
4 Whether this case involves a substantial question YES
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
ANANTKUMAR CHANDULAL KANOJIYA & 3 other(s)
==========================================================
Appearance:
MR HK PATEL APP for the Appellant(s) No. 1
MR DK MODI(1317) for the Opponent(s)/Respondent(s) No. 1,2,3,4
MR MD MODI(1318) for the Opponent(s)/Respondent(s) No. 1,2,3,4
==========================================================
CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 06/03/2023
CAV JUDGMENT
1. Present acquittal appeal has been filed by the appellant - Senior Food Inspector, Office of Assistant Commissioner, Food and Drugs Control Admn, Rajpipla - under Section 378(4) of the Cr.P.C., against the Judgment and order dated 23 rd August, 2011, rendered in Criminal Case No.763 of 2012 by Page 1 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 the learned Chief Judicial Magistrate, Rajpipla. The said case was registered against the present respondents - original accused for the offences in contravention to Section 2(ia)(a)
(b), 2(ix)(j)(k) and Section 7(1)(2)(v) and Section 16 of the Prevention of Food Adulteration Act (for short "PFA Act") in the Court of learned Chief Judicial Magistrate, Rajpipla, wherein the learned Magistrate was pleased to acquit the respondents - accused of the charges levelled against the respondents - accused.
2. As per the case of the prosecution on 5 th December, 2003, the complainant Food Inspector Shri A.M. Shah has given complaint against the accsued wherein it is inter alia alleged that he is nominated Food Inspector of State of Gujarat and when he was serving as Food Inspector at Food and Drugs Control Administration, on 5th December, 2003, at about 16:00 hrs. he along with Panch Shri Bhupendrabhai Shankarbhai Kanojia, visited one firm running in the name of "Anant Cutlery Stores". At that time, accused no.1 was present at the firm and his firm was retail and wholsesale firm for selling of Biscuits and other food articles including Gutkha. The complainant found two bags each including 50 pouches of gutkha named as "Vaynkateshwar Ka Zee-501 Gutkha". Those bags were in sealed condition. However, it were unsealed and nine packets of Gutkha pouches were purchased by the complainant for analysis purpose. There were writings of Ingredients Trade Mark address name and address of owner, name and address of manufacture and statutory warning on the pouch of Vyanketshwar Zee-501 Page 2 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 Gutkha. It shows packig dated 10 th March, 2003, batch No.Z- 10 and writing as "best before six months of the date of packing". The complainant, as per Rules, has informed about taking of sample for the purpose of analysis, in writing in form no.6. At the time of taking samples, he obtained signatures of panch and notice thereof has been given to Vendor. The complainant paid Rs.414 for nine packets of Gutkha and issued receipts thereof to the Vendor. Thereafter, he sealed the samples in three parts and after labelling and sealing as per PFA Act, and covering with brown paper sent one of the samples to Public Analyst, Bhuj for the purpose of analysis and other two parcels were sent to LHA Bharuch along with memorandum for no.7. The public analyst, Bhuj reported that the sample does not conform to the standards provided as per the Rules and Act, after obtaining necessary permission from the Local Health Authority complaint was filed against the accsued persons.
2.1 As per section 204 of Cr.P.C. summons issued to the accused and thereby accused produced himself through an advocate. Thereafter, present case was tried against the accused as per provisions of Chapter 19 of Cr.P.C. as per warrant trial. Initially, as per sectin 244 of Cr.P.C. evidence of complainant was recorded and thereafter on filing of pursis having no objection against charge which was later on framed, and pleas of accused were recorded wherein he denied his involvement and pleaded the case to be tried.
Page 3 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 2.2 After evidence was over and statements of the accused were recorded under Section 313 of the Code of Criminal Procedure and hearing of arguments of both the sides, the learned Magistrate vide impugned judgment acquitted the respondents - accused of the offences for which they were charged and hence the present appeal.
3. Mr. H. K. Patel, learned APP appearing on behalf of the State has contended that the judgment and order of acquittal is contrary to law and evidence on record. It is also submitted that the learned Magistrate has not taken into consideration the evidence of the prosecution witness Mr. A.M. Shah - the complainant - Senior Food Inspector, who has followed the necessary procedure and after obtaining necessary permission, visited the place of offence, collected the samples as per the legal procedure and the sample was sent to the public analyst. It is further contended that the Court has also not believed the report of the Public Analyst, which clearly mentions that the sample does not conform to the standard prescribed under law. The learned Magistrate has without considering the evidence of witness, evidence of Food Inspector has only relied upon the technical aspects and has given the order of acquittal. It is therefore, submitted that the judgment and order of acquittal passed by the learned Chief Judicial Magistrate is without appreciating the facts and evidence on record and is required to be quashed and set aside by this Hon'ble Court and allow the appeal.
Page 4 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
4. Mr. M. D. Modi, learned advocate for the respondents - accused submitted that the learned Magistrate has committed no error in appreciating the evidence, which has been brought on record and has rightly acquitted the respondents - accused. It is also submitted that the sample of Gutkha, which has been taken by the food inspector, no prescribed standards are mentioned under any law and when there is no prescribed standard mentioned under the law of any food article, it becomes a proprietary food. A complaint does not lie under Section 2(i-a)(a) when there is no standard prescribed of any food article, it cannot be said to be not conforming to the standards.
5. It is also submitted by Mr.Modi, learned advocate for the respondents - accused that after the PA report, the prosecution has filed a complaint on 14 th April, 2004. As such, after the expiry date of the product, the complaint is filed and Section 13(2) is breached by the food inspector as the right to get the sample reanalysed is snatched away from the respondents - accused, which is a breach of right of the accused.
6. Mr. Modi, learned advocate for the respondents - accused submitted that the food article sample seized by the food inspector, no standards were precribed under the law and therefore, it is proprietary food as per Rule 37A(2), provisions of proprietary food shall also conform the following requirements. Rule 37A(2) reads thus :
Page 5 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 "37A(1) ... ...
(2) In addition to the provisions including labelling requirements specified under these rules, the proprietary foods shall also conform to the following requirements, namely:--
(a) the name of the food and category under which it falls in these rules shall be mentioned on the lable;
(b) the proprietary food product shall comply with all other regulatory provisions specified in these rules and in Appendixes."
As such, here in this case, the sample packets, which were seized were having all the details as such there was no breach of contravention of any provision of law by the respondents - accused.
7. Mr. Modi, learned advocate for the respondent - accsued has also relied upon the mandatory Rule-18 and has contended that Rule-18 has been breached by the prosecution in this case, which is also fatal to the case of the prosectuion. The learned advocate for the respondents - accused has also contended that there is non application of mind by the sanctioning authority, which also goes against the prosecution. It is also contended that the notice under Section 13(2) and the report of the Public Analyst is not as per Page 6 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 the case of the complainant to the accused. But the acknoledgement slip Exh.65 to 67 does not reveals as who is the signatory to the acknowledgment and the complaint also not clarified, this aspect as to who has acknowledged the notice, as well as, the PA report. No evidence regarding the signatory of the notice being agent of the accused or the relative is not proved. No other witnesses are examined by the complainant to support the case of the prosecution under Section 13(2) of the PFA Act. It is also contended that the sanctioning authority / officer is Mr. P.J. Trivedi. It is not proved on record that Mr. Trivedi was the Assistant Commissioner, Bharuch having the authority to give the sanction. The Sanctioning Authoirty is not examined on record. As such the benefit should go to the respondents - accused.
8. Mr. Modi, learned advocate for the respondents submitted that adulterated as provided in Section-2(ia) and referring to the explanation to sec.2(i)(m) submitted that it clearly provides that where two or more preimary foods are mixed together and the resultant article of food is not injurious to health, then such resultant article shall not be deemed to be adulterated. Mr. Modi, learned advocate for the respondents submitted that the gutka has been referred to as combination of tobacco, lime and 'katha' and none of them may be said to be injurious and they are primary food. He also referred to the judgment of the Hon'ble Apex Court reported in 2006(1) FAC (Supreme Court) 237 and submitted that it is clearly observed that if primary food is not Page 7 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 standardised, the, the provisions of the Food Adulteration Act would not be attracted. He therefore, submitted that the judgment and order recording acquittal may not be disturbed and the appeal may be dismissed.
Mr. Modi, learned advocate for the respondent has also referred to a book 'Food Analysis: Theory and Practice' by S.N. Mahindru and pointedly referred to page 731 referring to Rule 62 which provides:
"Rule 62 permits the cause of anticaking agents only in table salt, onion powder, garlic powder, fruit powder and soup powder. The term table sale has neither been defined nor elaborated anywhere under the act and its rules including para A.15 of Appendix B. This makes the situation murky. Other technical anomalies have been pointed out by Mahindru pp 118, 141 to 143.
Prosecutions have been launched gutka pan masala cases under the allegation that these products contained magnesium carbonate as an anticaking agent which under the above rule is not permissible. According to para A.30 of Appendix B, pan masala may contain, apart from tobacco (not mentioned because gutka masala has not been covered as a food) betel nut, lime, coconut, cardamom, spices, Page 8 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 dry fruits etc. Betel nuts contain 66 to 83 mg, cashew nut 349 mg, coconut 355 mg, walnuts 302 mg, coconut meal decoiled 355 mg, cardamom 173 mg, coriander seeds 239 and cumin seed, 475 mg/100 gm magnesium of the food article.
Calcium carbonate from lime is already there which itself is an anticaking agent. Now one part of magnesium is equivalent to 3.5 parts of magnesium carbonate, then under rule 64 C also, the presence of magnesium carbonate is admissible and not an offence."
He, therefore, submitted that as magnesium is a natural content, it cannot be said to be adulterated and therefore, also the present appeal may not be entertained.
9. Mr. Modi, learned advocate for the respondents - accused in support of his submissions has relied upon the case of State of Gujarat Vs. Alihasan Abdul Gafar & 1 other in Criminal Revision Application no.399 of 2004 decided on 8 th October, 2010 by the co-ordinate bench of this Court, in case of State of Gujarat Vs. Sabbirbhai Taharali Dauidi in Criminal Misc. Application no.13633 of 2009 in Criminal Appeal no.2431 of 2009 decided on 26 th April, 2010, in case of V.B. Chauhan Vs. Umeshbhai Manubhai Modi & ors. in Criminal Appeal no.2255 of 2009 decided on 16 th February, 2010, in case of State of Gujarat Vs. Rohitkumara Page 9 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 Gopaldas in Criminal Appeal no.785 of 1996 decided on 23 rd November, 2006 and in case of State of Gujarat Vs. Nileshbhai Sureshbhai Patel & Ors. in Criminal Appeal no.1905 of 2008 decided on 29th December, 2009.
10. Heard learned advocates for the respective parties and perused the impugned judgment and order of acquittal and re- appreciated the entire evidence on record.
11. Before adverting to the facts of the case, it would be worthwhile to refer to the scope in Acquittal Appeals. It is well settled by is catena of decisions that an appellate Court has full Power to review, re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However, the Appellate Court must bear in mind that in case of Acquittal, there is prejudice in favour of the Accused, firstly, the presumption of innocence is available to him under the Fundamental Principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of Law. Secondly, the Accused having secured his Acquittal, the presumption of his innocence is further reaffirmed and strengthened by the trial Court.
11.1 In Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka and Others, (2019) 2 SCC 752, the Apex Court has observed that, Page 10 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 "The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. This would not only prevent the High Court from being flooded with appeals but more importantly would ensure that innocent persons who have already faced the tribulation of a long drawn out criminal trial are not again unnecessarily dragged to the High Court".
11.2 Yet in another decision in Chaman Lal v. The State of Himachal Pradesh, rendered in Criminal Appeal No.1229 of 2017 on 03.12.2020, 2020 SCC OnLine SC 988 the Apex Court has observed as under:
"9.1 In the case of Babu v. State of Kerala, (2010) 9 SCC 189), this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Page 11 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v.
State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445).
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p.404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar Page 12 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran (2007) 3 SCC 755).
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this Court reiterated the legal position as under: (SCC p. 432, para 42) "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having Page 13 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p.374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) "(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
Page 14 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 (ii) The High Court's conclusions
are contrary to evidence and documents on record;
(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
(v) This Court must always give proper weight and consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal." A similar view has been reiterated by this Court in Dhanapal v.
State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
Page 15 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
12. In aforesaid backdrop, the re-appreciation of the evidence by the learned Trial Judge is to be seen.
12.1 The complainant - Sr. Food Inspector Mr. Ashvinkumar Nandbhai Shah has been examined at Exh.25. It is admitted in the cross-examination that he has seen public analysis. It is also admitted that in Exh.57 of Public Analysis report standard of Pan Masala X-30 not applied. Here in this case, the opinion of the public analyst is that the sample of Zee 501 Gutaka is adulterated as it contains Magnesium Carbonate u/s.2(ia) and 2(ia)(b) of the PFA Act and Rule 65 of PFA Rule and the same does not comply with the provisons of Rule-32B of the PFA Rules. It is admitted fact on record that Gutaka is product wherein no standards are prescribed in the PFA Act. It is also an admitted fact on record that when the product does not conform to the standards, it is called adulterated. As per Section-2 of the PFA Act, here it is adulterated as there is a mixture of Magnesium Carbonate but when there is no standard prescribed of Pan Masala, it cannot be said to be adulterated.
12.2 As observed in case of Hindustan Lever Limited Vs. Food Inspector (supra), when there is no standards prescribed under rules and that article falls in the category of proprietary foods under Rule 37-A(2)(b) of Act states that "proprietary food" means a food which has not been standardized under the Prevention of Food Adulteration Rules, 1955. It was laid- down by the Hon'ble Apex Court that prosecution in regard of alleged adulteration, where standards are not prescribed Page 16 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 under the rules and the article falls in the category of proprietary food any prosecution in regard to the article for which no standards have been laid-down could not be sustainable.
As such, in light of the observations of Hon'ble Apex Court, the contention raised by the learned advocate for the respondent do have bearing.
12.3 Here in this case, the contention raised by the learned advocate for the respondent is regarding violation of Section 32 of the PFA Act. Section 13(2) reads as follows :-
13. Report of public analyst.-- (1) ... ...
(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
Page 17 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 12.4 Now, here in this case, from the panchnama which is produced at Exh.19, it appears that packing date of the product is 10/2003 i.e. October, 2003 and it is best before six months from the date of packing. As such, the expiry date can be deemed as April, 2004. The bill Exh.34 which is on record is dated 8th October, 2003. As such, it can be made out that the product has been manufactured before 8th October, 2003 and if it is considered to be as stated above best before six months, it will end in April, 2004 i.e. also before 8 th April, 2004. Here, the complaint lodged by the Food Inspector in the Court on 19th April, 2004. As such after the expiry of the product, the shelf-life of the product is over and there was no possibility of the product to be reexamined and the right of the respondent for reanalysis of the product has been prejudiced. In the order dated 26th April, 2010 in Criminal Misc. Application no.13633 of 2009 in Criminal Appeal no.2431 of 2009 in case of State of Gujarat - C.P. Gohil - Food Inspector Vs. Sabbirbhai Taharali Dauidi, Distributor & Partner & others and in case of Ujjaval Agro Centre & Ors. Vs. State of Gujarat & Anr., reported in 2017 (1) Cr.L.R. (Guj.) 54, it is observed that the petitioners have been deprived from their valuable right of reanalysis by the time, as shelf-life of the sample already has expired. Here also it can be made-out that the when complaint was filed, the product had already expired. Under the circumstances, the shelf-life of the product when was over, the respondents were deprived of their valuable right to get reanalysis of the product.
Page 18 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 12.5 In the case of Ushodaya Enterprises Pvt. Ltd., (Priya Food Division) & Anr. Vs. State of Gujarat & Anr., the complaint was filed after the shelf-life of the pickle sample has expired. It was held that the accused have been deprived of their valuable right in Sec.13(2) to get sample analysed by Central Food Laboratory and under the circumstances, the proceedings were quashed.
As such considering the provisions of law and considering the dates, which are important in this case, apparantly when the prosecution has lodged complaint and report was sent to the respondents, the shelf-life of the product was over and respondents were deprived of their right as such there is a violation of Section 13(2) and it can be said that the mandatory requirement laid-down under Section 13(2) of the Act is not duly proved.
13. The contention raised by Mr.Modi, learned advocate for the respondents that the mandatory provision of Rule-18 is also not complied with.
14. Considering the evidence of the complainant, it is mentioned that after taking the sample on 6 th December, 2003 one part of sample Memorandum Form No.7 with sealed packet was sent for the Public Analysis at Bhuj by Regd. Post parcel. As such, as per mandatory provisions of Rule-18, the specimen impression of seal and Memorandum Form no.7 has to be sent to the Public Analyst separately in a sealed cover. However, receipt of the Public Analyst Exh.40 does not Page 19 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 indicate that documents were received in sealed/unsealed packet through Regd. Post Parcel on 9 th December, 2003. The said thing is also not clarified by the prosecution also and therefore, the mandatory provisions of Rule-18A has not been complied with.
15. The Co-ordinate bench of this Court in case of State of Gujarat Vs. Rohitkumara Gopaldas in Criminal Appeal no.785 of 1996 decided on 23rd November, 2006 has observed as under:-
"8. This appeal deserves to be disposed of only on the ground that the prosecution has failed in establishing its case beyond reasonable doubt to bring home charge of commission of offence under section 16 of the Act on the part of the accused. The testimony of the Food Inspector does not clearly disclose anywhere that the documents referred to by him were sent in a "Sealed Cover". This could be fortified by having a look at the details of sample exhibit
-34, wherein also it is noticed that the Public Analyst has not stated expressly as to weather the memorandum with specimen seal impression had been received either in sealed packet or otherwise. The print form contains "sealed"/ "unsealed packet" and it was expected of the Public Analyst to score off the word which was not applicable. In the instant case, as it is seen from exhibit-34, the Public Analyst has not scored off either 'unsealed or sealed' words and therefore, it can rightly be said that the prosecution has not established its case beyond doubt in respect of due compliance with the Rules."Page 20 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023
R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
16. As regards sanction, as per the case of the prosecution, there is a violation of Rule-32(b). Rule-32(b) of the Prevention of Food Adulteration Rules, 1955 reads thus :
"32. Every prepackaged food to carry a label
- (a) General...
(1) ... ...
(2) ... ...
(3) ... ...
(4) ... ...
(b) Labelling of Prepackaged Foods--
Every package of food shall carry the following information on the label:-
(1) The name of the food. - The name of the food shall include trade name or description of food contained in the package.
(2) List of ingredients. - Except for single ingredient foods, a list of ingredients shall be declared on the label in the following manner:- -
(i) the list of ingredients shall contain an appropriate title, such as the term "ingredients";
(ii) the name of ingredients used in the product shall be listed in descending order of their composition by weight or volume, as the case may be, at the time of its manufacture;
(iii) where an ingredient itself is the product of two or more ingredients, such a compound ingredient shall be declared in the list of ingredients, and shall be accompanied by a list, in brackets, of its ingredients in descending order of weight or volume, as case may be:Page 21 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023
R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 Provided that where a compound ingredient, constitutes less than five percent of the food, the list of ingredients of the compound ingredient, other than food additive;
17. Here in this case, it is apparent that sample, which was taken is of gutakha, which is a packet of 2 or 3 grams. It is also apparent tha the packaging date is also mentioned on the packet as 10/2003. Perusing the documents i.e. the letter Exh.53, the reference of bill no.31 is made, but in the bill of the manufacture, which is produced at Exh.56, bill no.31 is striked off and it is replaced by bill no.28. The bill date is 30.09.2003 and the delivery time is 5:35 p.m. and on the basis of this bill the respondent no.4 has been implicated, but when the packet clearly displays the date as 10/2003, which is mentioned in the panchnama prepared by the Food Inspector, the sanctioning authority should have applied mind and would have asked for further inquiry by the Food Inspector. It clearly shows that the sanctioning authority has not applied the mind and has mechanically given the sanction. It is also pertinent to note that the sanctioning authority has not been examined on record. The sanctioning authority has not considered anomoly between bill Exh.53 and Exh.56. As such, the sanction granted is without application of mind. Moreover, it is also not on record as to whether the sanctioning authority was having authority to give sanction.
18. In the present case, the sanctioning authority is Mr. T.J. Trivedi, Assistant Commissioner and L.H.A., Bharuch. In this Page 22 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 case, whether Mr. Trivedi was authorized to give the sanction and no such documentary evidence giving authority to Mr. Trivedi has been brought on record by the prosecution.
19. In this case, it is also pertinent to note that as per the provisions of Section-13(2), notice and report of the Public Analyst were sent to the respondents. But, it is not proved on record as to who has signed the acknowledgement Exh.65 to Exh.67. The complainant has not uttered a word with regard to the signature on acknowledgement nor any postman is examined in this case.
20. It is also not coming on record regarding nexus of the respondents between eachother, who are the other accused, whether they are aged, whether they are manufacturers, nothing has been brought on record and as stated above, mandatory provision of Section-13(2) has not been complied.
21. The case of the prosecution is that the product i.e. Gutakha is adulterated as it is having Magnesium Carbonate.
22. Mr. Patel, learned APP for the appellant - State has submitted that as per the requirement of Rule-62 of the PFA Rules, restrictions have been put on use of anticaking agents and here in this case as per the report of the Public Analyst Magnesium Carbonate was found and as per the report the substance i.e. Gutakha and sample had not list of the ingredients and the use of Magnesium Carbonate and thereby Rule-62 is violated.
Page 23 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
23. As such considering the contentions raised by Mr. Modi, learned advocate for the respondents and considering the evidence on record, it is not prosecution case that abovereferred anticaking agent i.e. Magnesium Carbonate has been added by the respondents and as laid down in the book 'Food Analysis: Theory and Practice' by S.N. Mahindru, there is no breach of Rule-62, which can be said to be committed by the respondents, and when the learned APP for the appellant is unable to dispute that standards/parameters as prescribed in Appendix-B are breached, the present appeal is required to be dismissed.
24. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the complainant - Food Inspector has failed to prove the case against the respondents - accused by leading cogent and convincing evidence. The judgment delivered by the trial Judge is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial Court has been rightly appreciated by the trial Court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defect or cannot be said to be contrary to the evidence recorded.
25. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. A Page 24 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 beneficial reference of the decision of the Supreme Court in the case of State of Rajasthan versus Ram Niwas reported in (2010) 15 SCC 463 be made in this regard. In the said case, it has been observed as under:-
"6. This Court has held in Kalyan v. State of U.P.,(2001) 9 SCC 632 :
"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court as full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is Page 25 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023 R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 favourable to the accused should be adopted. The Court further observed:
"27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiration. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice Such a risk can be minimised but not ruled out altogether It may in this connection be apposite to refer to the following observations of Sir Carleton Alien quoted on page 157 of "The Proof of Guilt" by Glanville Williams, second edition:Page 26 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023
R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023 "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos."
28. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, (1973) 2 SCC 793, as is clear from the following observations:
"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations."
"9. The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the noninterference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."Page 27 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023
R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
8. In Arulvelu and another versus State reported in (2009) 10 Supreme Court Cases 206, the Supreme Court after discussing the earlier judgments, observed in para No. 36 as under:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshaling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
25.1 As observed by the Hon'ble Supreme Court in the case of Rajesh Singh & Others vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan Alias Jardar Khan and Another vs. State of Madhya Pradesh reported in (2011) 6 SCC 394, while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court's interference in such appeal in somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view.
Page 28 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023R/CR.A/379/2012 CAV JUDGMENT DATED: 06/03/2023
26. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal.
27. In view of the above and for the reasons stated above, the appeal is hereby dismissed. The judgment and order dated 23rd August, 2011, rendered in Criminal Case No.763 of 2012 by the learned Chief Judicial Magistrate, Rajpipla recording acquittal of the respondents - accused from the offence punishable under Section-2(ia)(b), 2(ix)(j)(k) and 7(1)(2)(5) of the Food Adulteration Act, 1954 is hereby confirmed.
28. Bail bond, if any, stands cancelled.
29. R. & P. be sent back to the concerned trial Court, forthwith.
Sd/-
(RAJENDRA M. SAREEN, J.) Page 29 of 29 Downloaded on : Mon Mar 06 20:46:47 IST 2023