Gujarat High Court
State Of Gujarat vs Dineshchandra Laljibhai Kanabar on 27 April, 2018
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.A/1131/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1131 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed toYes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of theNo
judgment ?
4 Whether this case involves a substantial question of lawNo
as to the interpretation of the Constitution of India or any
order made thereunder ?
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STATE OF GUJARAT
Versus
DINESHCHANDRA LALJIBHAI KANABAR &3
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Appearance:
MR KL PANDYA ADDITIONAL PUBLIC PROSECUTOR(2) for the
RULE SERVED(64) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 27/04/2018
ORAL JUDGMENT
1. Judgement and order dated 27.10.2010 rendered by the learned 3rd Additional Chief Judicial Magistrate, Junagadh in Criminal Case No. 881 of 1999 recording acquittal for the respondents for the offence punishable under sections 7(1)(5) read with section 16 read with section 2(ia)(a)(b)(m) of the Prevention of Food Adulteration Act ( for short 'the P.F.A. Act') has been Page 1 of 5 R/CR.A/1131/2011 JUDGMENT assailed in this appeal under Section 378 of the Code of Criminal Procedure ( for short 'Cr.P.C').
2. Having considered the rival contentions, it is noticed that the public analyst acknowledged the wooden unsealed box containing the sealed food article packaged Gutka "Mini Manekchand". He detected contents of Gutka Magnesium Carbonate (MgCo3 ) and also found the presence of characteristic debris of tobacco leaf and betel nuts ( Sopari) in it and rendered an opinion, of course without pointing out method adopted by him for such opinion, that the sample of Gutka "Manekchand" does not comply with the proviso to Rules 62 and 32(b) of Prevention of Food Adulteration Rules, 1955 ( for short 'P.F.A Rules') for want of accurate specification of the product, on it label.
3. Concededly the box contained 50 small pouches of Gutka each one weighing 2 gms. Learned counsel for the opponents has successfully pointed finger on the 6th proviso to Rule 32(b) of P.F.A Rules to point out that in case of package weighing 2 gms or less, the particulars in clause (b) regarding ingredients used in the product in descending order or their composition by weight, or volume as the case may be, need not be specified. There is no dispute that each of the package collected by the Food Inspector individually weighed only 2 gms and thus in view of the 6th proviso above referred, no obligation lay upon the manufacturer to mention the details sought for by clause (b) of Rule 32 on it.
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4. Learned counsel for the respondents has also successfully pointed out, by relying upon the Food Analysis Theory and Practice by S.N. Mahindru [ First Edition : 2003] that Magnesium and carbonate are natural ingredients of tobacco and betel nut and if the said food articles is put into the chemical process for obtaining Gutka, it would chemically react to produce MgCo3 . The observations are thus in this regard:
"Prosecutions have been launched in 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 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, dryfruits etc. Betel nuts contain 66 to 83 mg, cashewnut 349 mg, coconut 355 mg, walnuts 302 mg, coconut meal deoiled 355 mg, cardmom 173 mg, coriander seeds 239 and cumin seed, 475 mg/100g 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."
4.1 Thus, it appears that Rule 62 which prohibits the use of anticaking agent except where specifically permitted, would not apply to those cases where it has not been added as anticaking agent, but is merely an inherent ingredient as obtained by necessary process required to produce the food article in question. It is not the prosecution case that the above referred anticaking agent was added by the respondents. In absence of such a case, opponents cannot be held liable for breach of Rule 62.
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5. In view of the above findings emerging on the record of the case, it is unnecessary for this court to enter into other contentious issues involved in the case except to say that in absence of the mention of the method used by the public analyst, for his opinion, his report would be inadmissible in evidence. [ See judgement in case of D.S. Parmar and Santosh Kodomal & 1 in Criminal Appeal No. 241 of 2007 decided on 15.02.2018].
6. It has been noticed, more often then not, that despite the court's pointing out the technical flaws by which the accused gets benefited, though otherwise the food article may be substandard or injurious to public health, no heed is being paid and the similar blunders keep on repeating. In the instant case, the firm concerned who allegedly manufactured the Gutka was not arraigned as an accused but only its nominee. Nominee independently, without fixing the liability on the principal would not be liable under the Act. Also, the public analyst has not placed with his report, the relevant facts to prove the document though such requirement is pointed out in umpteen number of cases. [ see judgement in D.S. Parmar and Santosh Kodomal & 1 (supra)].
7. No doubt, opinion of the expert is admissible in evidence without examining the expert; at the same time there is no bar in law to examine an expert. Therefore, cases necessitating the oral evidence of an expert must be segregated from other cases. In the cases where the expert does not come up with full and necessary relevant details as pointed out in D.S. Parmar and Santosh Page 4 of 5 R/CR.A/1131/2011 JUDGMENT Kodomal and 1 (supra), It would be beneficial to examine the expert; particularly when state or other public institutions or public bodies seek to rely upon the report of an expert for, they are not only obliged to justify the facts of the case, but are also answerable to public at large. Therefore where the dedicated efforts can bring in the necessary and relevant material in evidence, there is no reason for the state or public bodies not to make an effort in that direction. State and public authorities cannot afford to lose a case on technicalities or on avoidable lapses. The expert's written opinion deficient in material particulars can always be explained through his oral testimony. In a case where entire or substantial case rests on the opinion of the expert which may be deficient in necessary relevant particulars, it would be desirable to examine him to bring on record the full and necessary relevant facts.
8. Having regard to the above discussion, this court finds itself in agreement with the impugned judgement and order and thus the appeal must fail and is dismissed. Record and Proceedings, if any shall be returned to the Court below Learned APP may circulate this order amongst the public analyst and to all other authorities concerned.
(G.R.UDHWANI, J) niru* Page 5 of 5