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2005 DIGILAW 1150 (BOM)

State of Gujarat v. Ramjibhai Fogatbhai Sagar

2005-09-01

S.R.BRAHMBHATT

body2005
JUDGMENT:- The Appellant - State of Gujarat has preferred this appeal under Sec.378 of the Code of Criminal Procedure challenging the order dated 09-02-1996 passed by learned J.M.F.C., Banvad, in Criminal Case No.346 of 1985 acquitting the accused/present respondent of the offence under Sees.? and 16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act'). This Court (Coram: A. N. Divecha, J.) granted leave and admitted the appeal vide order dated 30-10-1996. 2. The case of the appellant in short " is that the Food Inspector - original complainant on 9-4-1985 visited the shop of the accused I along with helper Shri. K. B. Bang and notified his intention of collecting beverage known in vernacular as "lemon soda". He purchased 3 bottles of lemon soda on payment of Rs.18-60 and obtained receipt thereof from the vendoraccused. The sample was collected in presence of panch witness Shri. Aruna Darsi. Notice under Rule 12, Form-VI was issued indicating his intention to send sample article to the Public Analyst for the purpose of analysis. The bottles were not open by the Food Inspector and he applied the requisite seal on the bottles keeping them in the same condition. The bottles were wrapped and sealed in strict compliance with the provisions of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the 'Rules'). The seal of Local Health Authority was also affixed on the bottles containing Sr. No.8/FD/AR/JT/JAM dated 03-01-1985. The panchanama was drawn of the incident of collecting the sample which bears the signature of accused and the panch witness. The notice under Form No. VI is produced at Exh.44. The panchanama is produced at Exh.47. On 10-04-1985 memorandum was prepared in six copies, a copy thereof is produced before the Court at Exh.48. Copy of the memorandum along with one sealed bottle of sample food article was properly packed in a wooden box and sent to Public Analyst for analysis at Bhuj and remaining two parts of sample bottles were sent to Local Health Authority at Rajkot as required under the law. The receipt received from Public Health Authority is produced at Exh.49 and the receipt from the Public Analyst is produced at Exh.50. The receipt received from Public Health Authority is produced at Exh.49 and the receipt from the Public Analyst is produced at Exh.50. The Public Analyst indicated in his report that the sample food article was not in conformity with the standards laid down under Item A.01.01 of 'carbonated water' under Rule 1955 as the element of saccharine should not have exceeded 100 ppm., which was found to be 135 ppm. The report of the Public Analyst produced at Exh.55 along with relevant papers were submitted to Local Health Authority for obtaining appropriate consent for lodging prosecution. The Local Health Authority accorded the sanction on the basis of the report of the Public Analyst and the relevant documents submitted to him. The complaint came to be lodged against the present respondent-original accused. After lodging the complaint the information of the same was sent to Local Health Authority on 07-11-1985. Local Health Authority therefore issued notice under Sec.13(2) of the Act, with a copy of the report of the Public Analyst, affording an opportunity to the accused to have the sample further tested at the end of Central Food Laboratory. The acknowledgment card showing its receipt is produced at Exh.56. 3. The trial Court drew charge at Exh.70 on 06-07-1994 and recorded plea of denial at Exh. 71 of the accused. The trial Court has framed as many as five issues: namely (1) whether the prosecution proves beyond doubt that the complainant Food Inspector had competence and authority to collect the sample food article from the accused on 09-04-1985; (2) whether the prosecution proves it beyond doubt that the soda lemon sample food article collected from the accused on 09-04-1985 was not in conformity with the standards laid down under the P.F.A. Rules and it was adulterated?; (3) whether the consent accorded for lodging prosecution is legal?; (4) whether the accused has committed any offence as contained in Exh.70 of the charge?; and (5) what order? The trial Court has answered the first issue in the affirmative, and second to fourth in negative, and the fifth issue, as per his order. 4. After elaborate discussions on the issues, the trial Court has given benefit of doubt to the accused on the count that evidences are not sufficient to bring home guilt of the accused. This order dated 09-02-1996 is impugned in the present appeal. 5. 4. After elaborate discussions on the issues, the trial Court has given benefit of doubt to the accused on the count that evidences are not sufficient to bring home guilt of the accused. This order dated 09-02-1996 is impugned in the present appeal. 5. Shri. K. C. Shah, learned A.P.P., has vehemently urged that the order of acquittal s deserves to be quashed and set aside and the appeal deserves to be allowed as the learned Magistrate has almost on all points held in favour; of the prosecution, but only on the point of violation of Rules 17 and 18 of the Rules and provisions of Sec.11 (1)(c)(i) and Sec.20 of the Act the benefit of doubt is accorded, which is not sustainable in the light of the evidences adduced by the prosecution on record. 6. Shri. Shah has submitted that, plain reading of Sec.11(1)(c)(i) would show that the Food Inspector has sent one of the sample parts for analysis to the Public Analyst under intimation to the Local Health Authority. The testimony of the Food Inspector would go to show that the procedure of collecting the sample and sending it to Public Analyst and Local Health Authority is duly complied with. The absence of word "under intimation to Local Health Authority" in the forwarding letter of Food Inspector in itself would not lead to a conclusion that the provisions of Sec.11(1)(c)(i) is not complied with Shri. Shah has submitted that in fact the emphasize in Sec.11(1)(c)(i) is on the factum of sending one part of the sample for analysis to the Public Analyst and not an intimation to the Local Health Authority. The provision in respect of intimation cannot be said to have assumed mandatory character. The record would show that the Food Inspector has in fact on 10-4-1985 sent one part of the sample food article to the Public Analyst and on the very same day he also sent remaining two parts of the sample to the Local Health Authority. These documents are on the record which would go to show that the Food Inspector has substantially complied with the requirement of Sec. 11(1)(c)(i) of the Rules. These documents are on the record which would go to show that the Food Inspector has substantially complied with the requirement of Sec. 11(1)(c)(i) of the Rules. Shri. Shah has submitted that the document at Exh.49 is a letter addressed by Food Inspector to Public Analyst on 10-4-1985 which bears office outward No.620 and Exh.48 is the document sent by Food Inspector to Public Analyst on 10-4-1985 bearing outward number 621. This in itself would go a long way to show that the provisions of Sec. 11(1)(c)(i) and (ii) have substantially complied with. The omission to mention either in the forwarding letter to Public Analyst or to Local Health Authority that sample article sent to Public Analyst under the intimation to Local Health Authority in itself should not therefore treated to be breach of procedure fatal to the case of the prosecution. The trial Court has therefore, patently erred in coming to the conclusion that there was noncompliance with provisions of Sec.11 (1)(c)(i) of the Act. 7. Shri. Shah has further submitted that the trial Court has erred in coming to the conclusion that there was breach of mandatory provisions of Rules 17 and 18 of the Rules. The testimony of complainant clearly indicate that provisions of Rules 17 and 18 were complied with. The omission of word "sent in sealed cover" in itself would not lead to a presumption that same must not have been sent in sealed cover as required under the provisions of the Rules. Shri. Shah submits that in view of this, the judgment is erroneous and therefore, the acquittal deserves to be reversed and the accused deserves to be convicted and appropriate sentence be awarded upon. Shri. Shah has further submitted that the trial Court has erred in recording the acquittal which is not supported by the documents on the record, and therefore, the impugned judgment deserves to be quashed and set aside. 8. Learned Advocate Shri. Joshi appearing for M/s. Thakkar Associates for the respondent-original accuse has submitted that this being an acquittal appeal this Court may not disturb the finding and conclusion recorded by the trial Court in acquitting the respondent original accused. Shri. Joshi has invited this Court's attention to the testimony of the complainant in support of his submission that the trial Court has rightly come to the conclusion that there was non-compliance with mandatory provisions of Rules 17 and 18. Shri. Joshi has invited this Court's attention to the testimony of the complainant in support of his submission that the trial Court has rightly come to the conclusion that there was non-compliance with mandatory provisions of Rules 17 and 18. Shri. Joshi has submitted that the complainant has not stated anywhere in the deposition that the memorandum and the copy of specimen seal were sent to the Public Analyst in "sealed packet" as required under Rules 17(a) and 18 of the Rules. Learned trial Court, has therefore, rightly observed that the prosecution has not proved beyond doubt due compliance with the provisions of Rules 17 and 18 of the Rules, and therefore, the respondent-original accused cannot be held to be liable for serious offence under the Act. 9. Shri. Joshi has submitted that the established provisions of law as on date is that the provisions of Rules 17 and 18 have been held to be mandatory and prosecution's failure in establishing complete compliance with the same have rendered the trial vitiated and the acquittal orders, are therefore, required to be maintained. Shri. Joshi has relied upon an unreported judgment of this Court in case of State of Gujarat Vs. Shah Sumanchandra Roshanlal, in Criminal Appeal No.33 of 1993 decided on 18-12-2001, in support of his contention that the copy of memorandum and specimen impression of seal should be sent in a 'sealed packet' addressed to the Public Analyst. Shri. Joshi has submitted that the evidence adduced by the prosecution have been properly appreciated by the trial Court in its true perspective and the trial Court has come to the conclusion that the prosecution has failed in establishing due compliance with mandatory provisions of Rules 17 and 18 of the Rules. Therefore, even if another view is canvassed or is plausible, then also the order of acquittal may not be disturbed in the acquittal appeal at this stage. Mr. Joshi has farther submitted that the acquittal deserves to be upheld only on the count that the trial Court's view in respect of prosecution's failure in establishing beyond doubt the due compliance with Rules 17 and 18 and the other grounds in respect of legality of sanction on account of breach of Secs.20 and 11(1)(c)(i) of the Act need not be pressed into service at this stage. 10. 10. This Court has perused the evidence and material on record and heard learned Counsels at length. The trial Court's observations and findings in respect of the non-compliance of Sec. 11(1)(c)(i) and Sec. 20 are not supported by the established position of law. They seem to be erroneous and unsupportable. The intimation to the Local Health Authority in sending the sample to the Public Analyst cannot be said to be missing in the present case. The order of sanction also cannot be said to be suffering from any infirmity as held by the trial Court. Thus, the finding in respect of compliance with Sec.11(1)(c)(i) and Sec. 20 deserves to be reversed, and are accordingly reversed. 11. The finding in respect of noncompliance with mandatory provisions of Rules 17 and 18 deserves to be viewed in the light of the material and evidences on record. The fact remains that the testimony of the complainant is not containing any specific assertion on the part of the complainant that in fact he had sent the specimen impression of seal and memorandum to the Public Analyst in a "sealed packet". The submission of Shri. Shah that this being an official act by the public servant same should be presumed to have been done in accordance with law. As against this the submission of the respondent's Counsel that the presumption would not be available when there is a pointed question raised in respect of very compliance with the mandatory provisions of Rules 17 and 18. The fact remains that the law is by now established that the provisions of Rules 17 and 18 are mandatory and it is the prosecution's duty to prove the compliance therewith. The testimony of the complainant and the absence of positive assertion that the specimen copy of seal and memorandum were sent in a sealed packet have been relied upon by the trial Court in coming to a conclusion that the prosecution has failed in establishing complete compliance with provisions of Rules 17 and 18. The testimony of the complainant and the absence of positive assertion that the specimen copy of seal and memorandum were sent in a sealed packet have been relied upon by the trial Court in coming to a conclusion that the prosecution has failed in establishing complete compliance with provisions of Rules 17 and 18. The trial Court has benefit of observing de mean our of the witnesses, and therefore, even if a different view is canvassed and is plausible that the mere omission of mentioning the word 'sealed packet' in the testimony in itself will not be construed as failure of the prosecution of proving the compliance with provisions of Rules 17 and 18 of the Rules cannot be pressed into service for disturbing and reversing the judgment and order of acquittal at this stage. The benefit of doubt, therefore, granted by the trial Court in acquitting the present respondent-original accused calls for no interference. 12. It is time and again held by this Court and various Courts that provisions of Rules 17 and 18 are mandatory and the prosecution has to prove due compliance therewith by leading adequate evidence. The record and proceedings indicate that neither in the testimony of the complainant nor by way of any documentary evidence the prosecution has established beyond doubt that the provisions of Rules 17 and 18 were duly complied with. This infirmity leaves room for doubt that the memorandum and specimen copy of seal might not have been sent in "sealed packet". The possibility of tampering with the same from anyone cannot thus be completely ruled out and the safeguard provided in the Rules against such tampering was not observed by the complainant. In view of the possibility of said serious infirmity the order of acquittal does not call for any interference. This Court sitting in acquittal appeal is mindful of the fact that even if the second view is plausible the order of acquittal may not be disturbed only on that ground, and especially when there is no plea of perversity in the order of the learned trial Judge so as to bring about miscarriage of justice. 13. This Court sitting in acquittal appeal is mindful of the fact that even if the second view is plausible the order of acquittal may not be disturbed only on that ground, and especially when there is no plea of perversity in the order of the learned trial Judge so as to bring about miscarriage of justice. 13. In the result, this Court is of the view that on the basis of the evidences adduced on record, though a second view is plausible, the order of acquittal dated 09-02-1996 in Criminal Appeal No.346 of 1985 impugned in the present appeal does not call for any interference. Therefore, the appeal fails, and is accordingly dismissed. Appeal dismissed.