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2005 DIGILAW 417 (GUJ)

STATE OF GUJARAT v. Kishorkumar Bhikhabhai

2005-06-22

S.R.BRAHMBHATT

body2005
S. R. BRAHMBHATT, J. ( 1 ) THE State of Gujarat has preferred this Criminal Appeal under section 378 of the Code of Criminal Procedure, 1974, challenging the judgment and order dated 25- 6-1991 passed by learned JMFC, Gondal in criminal Case No. 725 of 1988 acquitting both the respondents (original accused) of the offence under section 7 and 16 of the prevention of Food Adulteration Act, 1954 (hereinafter referred to as the act ). Leave for appeal came to be granted and the appeal was admitted (Coram: K. J. Vaidya, J) vide order dated 7-4-1992. ( 2 ) SHRI. Dinkarrai Vajesankar Mehta, food Inspector, Gondal Municipality, Gondal - the complainant filed the complaint against the respondents - original accused No. 1 and 2 for commission of offence under section 7 and punishable under section 16 of the Act. The complainant Food Inspector on 15-6-1988 visited business place of the accused wherein the accused, while selling the food article prepared out of milk i. e. popularly known as candy (kulfy), after issuing necessary notice for collecting sample for sending it for analysis he collected sample of candy for sending it for analysis. The sample was divided into 3 equal parts and thereafter the bottles were sealed in accordance with law and obtained necessary signatures as required under the law. One part of the sample was sent to the Public Analyst, Bhuj and remaining 2 parts of the same were forwarded to Local Health Authority at rajkot. As the samples were found to be adulterated and not in conformity with the standards the entire record was submitted before the Local Health Authority, Rajkot for obtaining appropriate sanction for lodging prosecution against the accused. The Local health Authority, Rajkot Circle accorded its sanction in writing recorded clearly that he had studied the entire record and the Public analysts report dated 15-7-1988 and other relevant papers which were presented to him and after detailed studies of the same the sanction was being accorded. Thereafter the complaint was lodged. After lodging the complaint necessary notices under section 13 (2) of the Act were issued to both the accused and the receipts were obtained. As the accused pleaded not guilty to the charges the matter proceeded further. The learned trial judge has framed 2 issues, namely (1) whether it is proved that the food article candy was adulterated ? And (2) what final order ?. As the accused pleaded not guilty to the charges the matter proceeded further. The learned trial judge has framed 2 issues, namely (1) whether it is proved that the food article candy was adulterated ? And (2) what final order ?. The learned Magistrate has answered the first issue in the negative and the second as per his order. ( 3 ) THE complainant Dinkarrai vajesankar Mehta is examined and his deposition is recorded at exhibit-32. Panch witness Dinesh Gopalbhai is examined and his deposition is recorded at exhibit-34, the required statutory written notices for collecting sample and copy thereof is produced at exhibit-19, the panchnama is produced at exhibit-21, the forwarding letter sent to the Public Analyst is at exhibit-23, the receipt of the letter and sample is at exhibit-24, the report of the Public Analyst is produced at exhibit-26, the necessary consent under section 20 of the Act is at exhibit-29 and the notice under section 32 is produced at exhibit-30 and receipt of the said notice is at exhibit 31 and 32. The charge sheet is produced at exhibit-36. The deposition of the complainant indicates clearly that there was due compliance with the provisions of the Act and the Rules in collecting the samples, forwarding the same and receiving the report of the Public analyst and obtaining consent for lodging the prosecution. It is important to note at this stage that in cross examination only one suggestion was made to the complainant on behalf of the defence that the sanction at exhibit-29 does not show as to how sample of the food article was adulterated and the sanction at exhibit-29 does not disclose as to under which provisions of the Act the offence was committed and that the sanction is silent about the same being granted in public interest. It was recorded that there was no further cross examination. So far as panch witnesss deposition is concerned, he supports the version of the complainant and it is important to note that there was no cross examination of this witness by the defence. ( 4 ) THE closing purshish came to be filed at exhibit-39 on behalf of the defence and at exhibit-40 the prosecution has also filed closing purshish. So far as panch witnesss deposition is concerned, he supports the version of the complainant and it is important to note that there was no cross examination of this witness by the defence. ( 4 ) THE closing purshish came to be filed at exhibit-39 on behalf of the defence and at exhibit-40 the prosecution has also filed closing purshish. ( 5 ) THE learned Magistrate has concentrated only on the aspect of consent and the issues in respect of adulteration of sample food article has not been dealt with at all. The learned Magistrate has recorded the contention on behalf of the accused that as the consent at exhibit-29 is bereft of any reason and as the consent at exhibit-29 does not contain the section number and the provision under which the offence is alleged to have been committed, and as it does not disclose that it was being given in public interest, the sanction was invalid and therefore, the prosecution case stands vitiated. The learned Magistrate has accepted this contention relying upon the decision of this Court rendered in case of RAMANBHAI shivabhai PRAJAPATI V/s. THE STATE of GUJARAT, 1990 CR. L. R. (GUJ) PG. 496. The equivalent of the same is 1990 (2) GLH, pg. 576. Relying upon the observations made in para-17 of the judgment it was contended on behalf of the accused that, as the sanction is not mentioning that it was being issued in public interest and as no elaborate reason is recorded, the sanction at exhibit-29 was without application of mind and vitiate the case of lodging the prosecution. It is important to note that the learned magistrate has addressed himself only to this question and no other question of sanction at exhibit-29 under section 20 of the Act, though the issue was framed about the sample of food being adulterated or not, no submission of defence are on record. ( 6 ) LEARNED APP Shri. Shah on behalf of the State has vehemently submitted that the order in judgment recording acquittal is erroneous in view of the fact that the learned Magistrate has not adverted to the real question which he has framed as issue no. 1. Reading the entire judgment would show that this issue has not been discussed at all. 1. Reading the entire judgment would show that this issue has not been discussed at all. Learned Magistrate has only addressed himself to the question of validity of consent at exhibit-29 which is issued under section 20 of the Act. He submitted that this being appeal this Court may examine the law position in respect of the requirement of issuing valid consent under section 20 of the Act. He submits that the decision of this court in case of Ramanbhai Shivabhai prajapati (supra) would be of no avail to the accused in this case as even a cursory glance at exhibit-29-consent would show that the authority issuing consent has recorded clearly that the consent was being accorded after perusing the entire record, all the relevant papers, the report of the Public analyst and after satisfying that the prosecution deserved to be launched against the accused. The requirement of section 20 of the Act is thus fulfilled and therefore, the consent can not be termed to be invalid. He has further relied upon the decision of the division Bench in case of HARSHAVADAN dahyalal SEVAK, FOOD INSPECTOR Vs. NARESHBHAI DEVANDAS VAGHVANI and ANOTHER, reported in 1991 (2) GLH pg. 615, wherein the decision in case of ramanbhai Shivabhai Prajapati (supra) was discussed at length. The Division Bench of this Court has clearly held that the act of granting consent under section 20 of the Act is not a quasi judicial function. Moreover the court before which as a result of granting of consent the accused would be facing prosecution and at the instant of the accused, certainly, if so required, on its own examine whether there is application of mind on the part of consenting authority and whether all the relevant particulars and matters of documents were placed before the consenting authority before he granted his consent. Thus in view of this Shri. Shah submitted that the judgment of the learned Magistrate deserves to be quashed and set aside as the acquittal is based solely on the point of so called infirmity in the consent at exhibit-29. ( 7 ) MS. N. N. Shaikh learned counsel appearing for Ms. Sudha Gangwar for the respondents (ori. Thus in view of this Shri. Shah submitted that the judgment of the learned Magistrate deserves to be quashed and set aside as the acquittal is based solely on the point of so called infirmity in the consent at exhibit-29. ( 7 ) MS. N. N. Shaikh learned counsel appearing for Ms. Sudha Gangwar for the respondents (ori. Accused) submitted that the judgment and order of the learned Magistrate deserves to be upheld as it is an acquittal appeal and in acquittal appeal the appellate courts are very slow in interfering with the acquittal recorded by the court of the first instance. She further submitted that the division Bench judgment relied upon by Shri. Shah in case of Harshavadan Dahyalal sevak (supra) can not be said to be of any help to the prosecution in as much as the requirement of consent is sine qua non for lodging the prosecution. The public authority while granting consent is duty bound to apply its mind before ordering prosecution against a citizen which is going to result into serious consequences against the accused. She has further submitted that the consent at exhibit-29 does not contain as to under which provision of law or under which section the accused have committed offence which is punishable under the Act. The public Authority while granting consent at exhibit-29 has also not mentioned categorically as to the effect that consent was granted in public interest. In view of this it is very clear that the public authority while granting consent at exhibit-29 has acted mechanically and there is non application of mind and therefore, the very institution of prosecution and lodging of complaint stands vitiated and therefore the order of acquittal deserves to be upheld. ( 8 ) THIS Court has gone through the entire record and the deposition of witnesses and perused the evidence in detail. It appears that though learned Magistrate has in fact framed question in respect of sample food article being adulterated or not the judgment does not disclose any discussion or finding on this issue at all. The learned Magistrate has recorded his finding that the consent at exhibit-29 was not legal and valid and therefore, only on that account the prosecution failed and the acquittal was recorded. The learned Magistrate has recorded his finding that the consent at exhibit-29 was not legal and valid and therefore, only on that account the prosecution failed and the acquittal was recorded. ( 9 ) THIS Court is mindful that this is an acquittal appeal and therefore, the appellate court has to very minutely peruse and appreciate entire evidence and the record before interfering with the order of acquittal. ( 10 ) THE finding of learned Magistrate in respect of validity and consent at exhibit- 29 does not seem to be sustainable in eye of law. Perusal of consent produced at exhibit-29 in terms show that the consenting authority before issuing the consent had perused all the relevant papers including the report of Public Analyst and has satisfied himself that the accused deserved to be proceed with for the offence committed under the provisions of the Act, and therefore, the consenting authority has also recorded its satisfaction before according the consent at exhibit-29. The Apex Court has in case of suresh H. RAJPUT AND OTHERS VS. BHARATIBEN PRAVINBHAI SONI AND others, reported in (1996) 7 SCC pg. 199 has observed as under: ( 11 ) IN State of Bihar V/s. P. P. Sharma, one of us (K. Ramaswamy, J) considered the effect of the sanction under section 197 of the Criminal Procedure Code at p. 268 thus: (SCC p. 67)"it is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act, and not a quasi- judicial one,f nor is a is involved. Therefore, the order of sanction need not contain detailed reasons in support thereof as was contended by Shri. Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in that regard. " ( 12 ) IT is seen that the analysis report which was placed before the Local (Health) authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. " ( 12 ) IT is seen that the analysis report which was placed before the Local (Health) authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. At that stage, it was not for the sanctioning authority to weigh pros and cons and then to find whether the case could end in conviction or acquittal or the adulteration was abnormal or marginal etc. All these are not matters for the sanctioning authority to weigh and to consider the pros and cons of the case before granting sanction to lay prosecution against the respondents. ( 13 ) IN view of this, this Court is of the view that the findings of the learned magistrate in respect of consent at exhibit- 29 deserves to be quashed and set aside and is hereby accordingly quashed and set aside. ( 14 ) IT is important to note that the learned Magistrate has not addressed himself as to whether the sample of food article was adulterated or not. This Court is of the opinion that, it would be in the interest of justice that the mater be remanded to the trial court for deciding the issue. The trial court is hereby directed to decide the matter on the basis of the evidence already on record and come to the conclusion on the submissions advanced before him on the basis that the consent at exhibit-29 was validly recorded. ( 15 ) IN the result the appeal is allowed to the aforesaid extent and the matter is remanded. Looking to the passage of time that has gone-by, it is directed that the trial court shall hear and dispose of the matter within a period of four months from the date of receipt of writ of this Court. ( 16 ) THE Registry is directed to send back the record and proceedings to the trial court immediately. .