Research › Search › Judgment

Gujarat High Court · body

2004 DIGILAW 507 (GUJ)

Vallabhbhai Popatbhai v. State of Gujarat

2004-08-06

C.K.BUCH

body2004
JUDGMENT : C.K. Buch, J. The petitioner has challenged the legality and validity of the order dated 8th March, 1990, holding the present petitioner guilty of the offences punishable under Sections 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1955 (hereinafter referred to as 'the Act'), passed by the learned Judicial Magistrate First Class (Municipal), Rajkot, while concluding the trial of the Criminal PFA Case no.304/1985 and the judgment and order dated 13th February, 2004, confirming the aforesaid judgment and order of conviction dated 8th March, 1990, passed by the learned Additional Sessions Judge, Rajkot, while disposing Criminal Appeal No.2/90. 2. Mr. P.M. Thakkar, leaned senior counsel appearing for M/s.Thakkar Associates for the petitioner, has taken me through the relevant facts and also the case of the prosecution; and submitted that the order of conviction and order of confirmation passed by both the Courts below are illegal and erroneous and both the lower Courts have failed in appreciating certain material aspects that are agitated in the grounds of memo of present Revision Application. There are number of grounds in the memo of Revision Application, however, Mr. Thakkar has concentrated his arguments mainly on three grounds. 3. It is submitted firstly that both the Courts below have erred in accepting that the sample of the curd collected by the respondent no.2-Food Inspector was absolutely in accordance with law and Rules framed under the Act. Therefore, the report of the Public Analyst becomes relevant that the food article curd was sub-standard. 4. The second point, which has been hammered by Mr. Thakkar, is that the sanction granted by the authority is not a valid sanction and it has been granted mechanically; and the same suffers from infirmity and non application of mind. 5. The third point raised by Mr.Thakkar is that the petitioner-accused has not been accorded opportunity as he was never served with the contents of the report of the Public Analyst and mere intimation was sent. Therefore, it ought to have been held by the lower Court that this is a case of violation of mandatory provisions of Section 13(2) of the Act. 6. To appreciate the say of Mr. Thakkar, it would be appropriate for the Court to have a look at the case of the respondent no.2-complainant/prosecution which was placed before the trial Court. Therefore, it ought to have been held by the lower Court that this is a case of violation of mandatory provisions of Section 13(2) of the Act. 6. To appreciate the say of Mr. Thakkar, it would be appropriate for the Court to have a look at the case of the respondent no.2-complainant/prosecution which was placed before the trial Court. It is relevant to note that initially the present petitioner and his real brother were prosecuted for the very offence. However, the lower Court was pleased to acquit the other accused holding that he cannot be held responsible for the food articles sold by the present petitioner on the relevant date. 7. It is the case of the prosecution that the petitioner-accused runs milk business in the name and style of 'Sadguru Dairy Farm' in the area known as Junction Plot at Rajkot. The respondent no.2 herein visited the shop of the petitioner-accused and as the petitioner-accused was selling one of the milk products i.e. curd, he drew the sample of curd by purchasing 600 gms. of curd on 23rd May, 1995 at about 11-30 a.m. from the shop of the petitioner-accused. The petitioner -accused was paid for the said quantity. It is also not specifically challenged that this purchase was made in presence of Panch and it was divided in three parts; and as a preservative formalin was added therein. The sample drawn by the respondent no.2 was sent for analysis to the Public Analyst and it is alleged that the fat count was found less than the standard prescribed in the Act. Thus, it was an adulterated food article. It is the say of the respondent no.2 that the petitioner-accused were intimated about the report of the Public Analyst and as there is no requisition to send the sample to the Central Food Laboratory, the complaint came to be filed. Of course, it is contended by the respondent no.2 and documents are also produced in support of his say that before prosecuting the petitioner-accused, the respondent no.2-orig. complainant had obtained necessary sanction from the competent authority. It is also held that it is a legal and valid sanction. 8. On appreciation of the evidence, the learned Magistrate accepted the say of the respondent no.2-orig. complainant and the allegations made in the complaint qua the present petitioner and held the present petitioner guilty of the aforesaid offence. complainant had obtained necessary sanction from the competent authority. It is also held that it is a legal and valid sanction. 8. On appreciation of the evidence, the learned Magistrate accepted the say of the respondent no.2-orig. complainant and the allegations made in the complaint qua the present petitioner and held the present petitioner guilty of the aforesaid offence. The points, which are raised before this Court by Mr.Thakkar, were placed before the Appellate Court by the present petitioner when the order of conviction and sentence was challenged. But it is submitted that the learned Sessions Judge has failed in appreciating the submissions made on the aforesaid three points on behalf of the petitioner-accused. There is some force in the arguments of Mr. Thakkar that the sanction granted by the authority cannot be held to be legal or valid sanction in the eye of law as it appears that the same has been granted mechanically. According to Mr.Thakkar, if this Court accepts this contention of the present petitioner, no other contentions raised by the petitioner requires to be dealt with on merit. It is in evidence that the sample drawn from the shop of the petitioner was sent for analysis at Vadodara laboratory. Obviously, therefore, it can be legitimately inferred that the respondent no.2 must have submitted this very report before the Municipal Commissioner for obtaining sanction. The forwarding letter at Exh.66, dated 30th September, 1985, reveals that it was submitted to the Municipal Commissioner, Rajkot, that the sample was sent for analysis to the Public Analyst, Public Health Laboratory, Bhuj and the report of Public Analyst bears the rubber stamp of the date, which reads as 1st June, 1985. Even then, in the letter addressed to the Police Commissioner, it was mentioned that the report received from the Public Analyst, Bhuj is of 1st January, 1985. The sanctioning authority could have drawn the attention of the respondent no.2, if he has really gone through the contents of the report and other papers that his submission is erroneous and the sample was never sent to Bhuj and the report is received from Public Analyst, Vadodara and the correct date of report is 1st June, 2004. The sanctioning authority could have drawn the attention of the respondent no.2, if he has really gone through the contents of the report and other papers that his submission is erroneous and the sample was never sent to Bhuj and the report is received from Public Analyst, Vadodara and the correct date of report is 1st June, 2004. Even otherwise, it was open for the sanctioning authority to point out this discrepancy in the sanction letter but if these documents are seen in response to the reference letter, it can be inferred that the papers were hastily and mechanically submitted to the Commissioner and the Commissioner has granted sanction to prosecute the accused persons without application of mind. The arguments advanced by Mr.Thakkar gets further strength from the document at Exh.69, whereby the Commissioner has intimated the accused persons that the Public Analyst of Bhuj laboratory has found the sample adulterated so even while forwarding the intimation titled as "Suchna" does not reveal the correct name of the laboratory namely such papers are signed by the higher officers mechanically and the accused persons should not be granted any advantage of such a small error but when there is neither counter signature in Exh.69 nor the complainant has cared to clarify or to explain this fact situation, it can be legitimately argued and has been argued that the process of obtaining sanction from the very beginning was undertaken without application of mind and in undue haste. 9. The question, whether such an error committed by the sanctioning authority and the complainant should rely on such sanction can prove vital to the case of the prosecution, has been replied by this Court (Coram : D.A. Mehta, J) in the case of an appeal filed by the State of Gujarat v. M/s. Mafatlal Kantilal, decided on 1st December, 2000, in Criminal Appeal No.882/1992, in para :7 of the decision, this Court has observed that : "7. The second limb of the contention raised on behalf of the accused-respondents is more fatal in as much as, as can be seen from forwarding letter (exhibit 23), and the deposition of the complainant that the sample of the chilli powder was sent to the Public Analyst, Regional Food Laboratory, Rajkot; the same was duly received by the Regional Food Laboratory, Rajkot on 02.05.1985 and this fact is established from the record by the acknowledgement of Registered Post Acknowledgement Due as well as the acknowledgement letter dated 04.05.1985 sent by the Public Analyst, Regional Food Laboratory, Rajkot. These documents are available at exhibit 30. However, when the statutory notice under Section 13(2) of the Act is forwarded, it mentions that the sample was forwarded to the Food and Drug Laboratory, Vadodara for the purpose of analysis and that the report about the analysis of such sample has been received from the Public Analyst, Vadodara. Therefore, the case of the prosecution on this count also fails there being total non application of mind on behalf of the Local Health Authority which is the sanctioning authority." 10. Thus, this Court has positively held that the case of the prosecution can fail on this count that there is total non-application of mind on behalf of Local Health Authority, which is the sanctioning authority. The learned first Appellate Court while dealing with Criminal Appeal could have acquitted the accused solely on this ground but these submissions advanced before the Appellate Court have not been appreciated in true perspective. The Apex Court in the case of Raneshwar Dayal v. State of U.P., 1996 SCC (Cri) 75, has discussed this concept of requirement of application of mind by the sanctioning authority and it is observed that : "The matter arises under the Prevention of Food Adulteration Act. The sample taken was found to be adulterated. On the record, it appears that the report of the Public Analyst is not supplied to the accused as required under Section 13(2) of the Act. Consequently, he could not get his own sample examined by the Central Laboratory. It is a very valuable right given to him. Rules also provide that such a report should be supplied to the accused within a certain period. The question arose in a similar case where this rule is mandatory or directory. We need not launch into such a discussion in this case. It is a very valuable right given to him. Rules also provide that such a report should be supplied to the accused within a certain period. The question arose in a similar case where this rule is mandatory or directory. We need not launch into such a discussion in this case. We are satisfied that serious prejudice has been causes to the appellant because of non-supply of the Public Analyst's report as required under Section 13(2) of the Act. The High Court having noticed this, yet rejected the plea on the mere ground that such an objection was not raised before the trial Court. It is not a question of an objection, but it is a question of prejudice." The aforesaid ratio of the Apex Court can also be applied to the present. Of course, the facts of both the cases are materially different. 11. The next material submission advanced by Mr. Thakkar is that the sample of the curd was not drawn by the Food Inspector in accordance with rule because the curd after taking sample was required to be churned and, therefore, before taking different samples from the part or utensil it ought to have been taken by giving vertical cut so that after churning homogenised sample can be gathered in the bottles and that homogenised sample was required to be sent to the laboratory after dividing it in three equal parts. On going through the evidence of the respondent no.2, it is very clear that the sample was drawn from a utensil containing 5 kg. curd. It is neither stated in the complaint nor in the deposition that the sample of curd was drawn by a detail cut and homogenising the sample after churning and thereafter, the same was sent for analysis. On the contrary, the description of procedure adopted by the Food Inspector gives impression that the entire lot of 5 kg. of curd was firstly stirred with the help of spoon and thereafter, the sample was drawn. How many times this exercise was done is also stated by the Food Inspector and it is difficult for this Court to accept that the quantity of 5 kg. of curd can be churned if a spoon is moved two, three or four times. Putting a cut from top to bottom is important to have homogeneous sample. How many times this exercise was done is also stated by the Food Inspector and it is difficult for this Court to accept that the quantity of 5 kg. of curd can be churned if a spoon is moved two, three or four times. Putting a cut from top to bottom is important to have homogeneous sample. So when it is found that homogenised sample was not drawn, the finding that about the fat in the sample should not be viewed seriously because it is not the case of the prosecution that any foreign substance, particles or prohibited substances were there in the sample. The report of Public Analyst reveals that fat was less by 2.8%. It was found 3.2% instead of 6%. On other four counts, the sample was within the prescribed standards. When a sample of curd is to be drawn, each layer of the curd should be homogenised and if some error is committed in drawing the sample, it may affect the standard; especially the standard of milk fat. The argument of Mr.Thakkar is that on the ground of failure of the Food Inspector in drawing the sample itself was sufficient for both the lower Courts to acquit the accused and, therefore, it should be held that two Courts below have committed error in appreciating the evidence. In the case of Mansingh Chhajuram Yadav and anr. v. State of Gujarat, 1985 (2) GLR 895 : 1985 (2) FAC 22 (Re. Para 3), this Court (Coram : J.P. Desai, J) has dealt with this aspect and it is observed that : "It is true that there is nothing in the Act or Rules which prescribes the churning or homogenizing, but in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis and for this purpose, churning is one of the methods of making sample homogeneous and representative. When this does not appear to have been done, it cannot be said to be the sample which was sent to the Public Analyst was representative of the whole quantity of the curd collected by the Food Inspector." 12. When this does not appear to have been done, it cannot be said to be the sample which was sent to the Public Analyst was representative of the whole quantity of the curd collected by the Food Inspector." 12. On facts in the cited decision, the Court has held that as there is no evidence whatsoever about churning or making any attempt to homogenise the sample, the report of Public Analyst cannot furnish a reliable proof of nature and the contents of the curd. The facts of the case on hand are such that the ratio of the cited decision would squarely help the present petitioner. The Court is not convinced that for purchase of 600 gms. of curd, a trader would ever permit that his entire stock of 5 kg. either churned or disturbed. It has been rightly pointed out that in the complaint it is not specifically averred even that the entire bulk of 5 kg. of curd was properly stirred. The learned counsel appearing for the Municipal Corporation is not able to satisfy the Court of the lacuna/infirmity found in drawing the sample in the background of the ratio of the above cited decision, so the appellant can succeed on this point also. 13. The third point raised by the petitioner is also able to twirl the balance in favour of the petitioner because there is no convincing evidence to show that the report of Public Analyst was ever sent to the accused. It is true that the concerned authority had sent an R.P.A.D. to the accused, after receipt of the report from the Public Analyst but the evidence led by the prosecution indicates that the accused were intimated only that the article sent for analysis is found adulterated as the same was not as per the prescribed standards. 14. Sending mere intimation is not sufficient in view of the Act because supply of report of the Public Analyst is mandatory and non-supply of such report and its effect is found adverse/fatal to the case of the prosecution in 'n' number of cases including in the case of Rameshwar Dayal (Supra). 14. Sending mere intimation is not sufficient in view of the Act because supply of report of the Public Analyst is mandatory and non-supply of such report and its effect is found adverse/fatal to the case of the prosecution in 'n' number of cases including in the case of Rameshwar Dayal (Supra). At this stage, it is important to note that the intimation even sent to the accused is not the perfect intimation because a copy of the intimation produced in the evidence reveals that the sample drawn from the accused was sent for analysis at Bhuj and in reality, it was sent to Vadodara. In such a situation, how the accused can exercise his right to get the sample reanalysed by the Central Food Laboratory. So such vagueness in the intimation also ought not have been brushed aside by the two Courts below. However, Mr.Thakkar has placed reliance on the decision in the case of Rameshwar Dayal (Supra). It is true that this Court, while dealing with the Criminal Revision Application and that too against two concurrent findings, has no jurisdiction to reappreciate the evidence and the finding recorded by the two Courts below. But if the apparent error is emerging in appreciating the evidence, this Court can positively point out error in the areas where the two Courts below have committed error and/or have recorded erroneous findings. The point which can be said to be absolutely legal can be pressed into service in light of the total evidence available on record. So the decisions cited by the learned counsel appearing for the Rajkot Municipal Corporation i.e. in the case of Duli Chand v. Delhi Administration, AIR 1975 SC 1960 , (Note-B) or other decisions i.e. in the case of Jagdish Prasad alias Jagdish Prasad Gupta v. The State of West Bengal, AIR 1972 SC 2044 ; in the case of Prithviraj Dahyabhai v. State of Gujarat and anr., 1993 (1) GLH 250 , and in the case of Manaka Hari v. State of Gujarat, 1967 GLR 588 , would not help the Municipal Corporation. 15. Having considered the above three major points advanced by Mr.Thakkar, learned counsel appearing for the petitioner; and the effects thereof, the present Revision Application is hereby allowed. 15. Having considered the above three major points advanced by Mr.Thakkar, learned counsel appearing for the petitioner; and the effects thereof, the present Revision Application is hereby allowed. The judgment and order dated 8th March, 1990, passed by the learned Judicial Magistrate First Class (Municipal), Rajkot in Criminal PFA Case No.304/1985, and the judgment and order passed by the learned Additional Sessions Judge, Rajkot vide his order dated 13th February, 2004 in Criminal Appeal No.2/1990, confirming the judgment and order dated 8th March, 1990, are hereby quashed and set aside. The petitioner-accused is hereby ordered to be acquitted. The amount of fine paid by the accused be refunded to the petitioner-accused. The bail bond executed by the petitioner-accused shall stand discharged. 16. Rule is made absolute accordingly. Application Allowed.