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2005 DIGILAW 428 (GUJ)

G. Y. RAMEKRA v. REHMANBHAI I. GHENCHI

2005-06-24

S.R.BRAHMBHATT

body2005
S. R. BRAHMBHATT, J. ( 1 ) HEARD Mr. Manish Upadhyay for Shri P. G. Desai for the appellant original complainant and Shri K. C. Shah, learned Addl. P. P. for the respondent No. 3. The respondent No. 1 and 2 have been duly served. ( 2 ) THE appellant has preferred this Criminal Appeal under Section 378 of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 12. 5. 1989 passed by the learned Judicial Magistrate First Class, Vadodara in Criminal Case No. 9720 of 1986 acquitting the respondent Nos. 1 and 2 i. e. Original accused Nos. 1 and 2 of the charges of having committing offence under Section 2 (1) (a) and 7 (1) with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act for short ). The leave was granted and appeal was admitted by this court (Coram: B. C. Patel, J.) vide order dated 15. 11. 1990. ( 3 ) THE case of the prosecution is that on 13. 10. 1986 at about 9. 30 AM the original complainant Shri Ramekra, who was working as Food Inspector in Vadodara Municipal Corporation, visited the shop called Rajiv Store at C/13, Rajiv Nagar, Behind Subhash Park, Harni Road, Vadodara for collecting the food sample of edible oil for analysis. At that time, respondent No 2 was present in the shop and the complainant had introduced himself to the respondent No. 2 that he was a Food Inspector and he informed him in writing in presence of panch witness that he intended to purchase edible oil of cotton seeds for analysis purpose. He accordingly, purchased 375 gms. of cotton seeds oil on payment of Rs. 7. 90ps in presence of panch witness. These samples of edible oil was divided into three equal parts and they were collected in three different cleaned containers. Out of three parts of the samples, one part was sent to public analyst for analysis under the Act after sealing it properly in accordance with the requirement of the Prevention of Food Adulteration Rule, 1955 (hereinafter referred to as the Rules for short ). On receipt of the report from the Public Analyst on 20. 10. Out of three parts of the samples, one part was sent to public analyst for analysis under the Act after sealing it properly in accordance with the requirement of the Prevention of Food Adulteration Rule, 1955 (hereinafter referred to as the Rules for short ). On receipt of the report from the Public Analyst on 20. 10. 1986 that edible oil in the sample did not confirm to the standard prescribed under the Rules, the complainant placed the entire file along with report of the Public Analyst dated 20. 10. 1986 before the Public Health Authority for obtaining sanction for instituting prosecution against the accused Nos. 1 and 2. ( 4 ) THE Public Health Authority accorded its sanction on the same day i. e. On 20. 10. 1986 for instituting the prosecution. The same is produced at Ex. 19. The sanctioning authority has stated that this consent was given after going through the Public Analyst report and other relevant papers and documents and keeping the nature of the offence alleged in mind. Charge was framed, which is at Ex. 33 and the denial of the charge was recorded by the concerned Magistrate. ( 5 ) THE complainant is examined as prosecution witness No. 1 at Ex. 10, wherein, he has narrated in detail that he has been duly appointed as Food Inspector and therefore, he is entitled to collect the samples for analysis and that in presence of panch witness he has collected the samples of edible oil from the accused No. 2 and divided into three equal parts and sealed it in accordance with law and obtained necessary signatures of the panch and accused No. 2 on the same and forwarded to the Public Analyst for analysis and the remaining two parts of the samples were sent to the local Health Authority in accordance with requirement of the act and the Rules. He has deposed that on 13. 10. 1986 at around 9-30 AM in presence of panch witness, he visited the shop called Rajiv Store, situated at C/13, Rajiv Nagar, behind Subhash Park, Harni Road, Vadodara and collected the samples of edible oil of cotton seeds from respondent No. 2 after introducing him that he is authorized to collect the edible oil of cotton seeds for analysis. The due notice was served upon the seller and the said notice was counter signed by the panch witness. The due notice was served upon the seller and the said notice was counter signed by the panch witness. That notice is produced at ex. 22 on the record. The sample was collected in a cleaned glass bottles, each containing 125 gm. of edible oil of cotton Seeds and proper seal was affixed in presence of the complainant by his peon. The complainant got the label etc. filled in by the Supervisor, who had accompanied him, and the seal, which he received from the Local Heath Authority had applied on the container bottles and the papers were wrapped in accordance with Rules. The seals were properly applied. The amount of Rs. 7. 90ps was paid to the seller in presence of panch witness. The copy of the intimation is produced at Ex. 12, the receipt of payment is produced at ex. 13 and cash memo is produced at Ex. 14. Ex. 15 is the panchnama, which shows that edible oil samples were collected from the accused No. 2 from the shop. Ex. 16 is the receipt issued by the Public Analyst on 13. 10. 1986 showing that samples were received from the Food Inspector Shri G. Y. Ramekar and the seals were intact. He has mentioned that copy of the memorandum form no. 7 and specimen were also received through peon on the same day at 1-30. Ex. 17 is the forwarding letter to the Local Health Authority sending remaining two samples to the Public Heath Authority as per section 11 of the Act. Ex. 18 is the report made by the Food inspector to the Local Health Authority for obtaining his consent for lodging prosecution. Ex. 19 is the consent given by the Local Health Authority on 20. 10. 1986. Ex. 21 is the report of the Public Analyst dated 20. 10. 1986. ( 6 ) THUS, the complaint was lodged in accordance with the provisions of the Act and Rules. As the accused denied the charges, the case proceeded further. The learned Magistrate has framed two issues namely :- (i) Whether the prosecution proves that the accused have violated the provisions of Section 2 (1-A) and 7 (1) of the Act and committed the offence punishable under Section 16 (1-A) of the Act? (ii) What order? As the accused denied the charges, the case proceeded further. The learned Magistrate has framed two issues namely :- (i) Whether the prosecution proves that the accused have violated the provisions of Section 2 (1-A) and 7 (1) of the Act and committed the offence punishable under Section 16 (1-A) of the Act? (ii) What order? ( 7 ) LEARNED Magistrate has raised three points for discussion, they are set out as under :- (a) Whether the complainant Food Inspectors appointment under the Act and Rule 8 of the Rules was valid and if it is not, then, what is the effect of such illegality ? (b) Whether the prosecution proves beyond doubt that there is compliance of provisions of Section 13 (2) of the Act and if it was not, what is the effect thereon ? (c) Whether the sanctioned accorded by the Local Heath Authority under Section 20 (i) of the PFA Act for lodging complaint was proper or valid? ( 8 ) LEARNED Magistrate has narrated Rule 8 of the Rules laying down the qualifications for appointment of the Food Inspector. Learned Magistrate has further observed that the legislature has prescribed the qualifications in order to see that a person, who appointed as a Food Inspector, possessing the necessary training in respect of collecting the samples and in respect of adding the preservatives etc. After setting out the rulings on the points, of this court as well as of various other High Courts and after taking into consideration the deposition of the complainant, that he has obtained training of 45 days and not of 90 days and the fact that no certified copy of the gazette appointing him as a Food Inspector is produced, he came to the conclusion that he was not validly appointed as a Food Inspector. He has further recorded that concerned Food Inspector has deposed the fact that the samples, which he had collected, were collected not in a capacity of ordinary consumer but in a capacity of Food Inspector. He was not qualified Food Inspector as he had not taken training of 90 days, which is prescribed under the Rules. He has further recorded that concerned Food Inspector has deposed the fact that the samples, which he had collected, were collected not in a capacity of ordinary consumer but in a capacity of Food Inspector. He was not qualified Food Inspector as he had not taken training of 90 days, which is prescribed under the Rules. The learned Magistrate has further observed that appointment of the complainant as Food Inspector, as per his deposition was made in the year 1982 and it ought to have been in conformity with the amendment in the Rules, wherein, the qualifications were prescribed in detail. The learned Magistrate has further observed that qualifying Food Inspector is suppose to discharge many responsibility, duties and functions under various sections of the Act and if the vary qualification is wanting in a Food Inspector, then, it is obvious that he has not been competent to act as a Food Inspector under the Law. In view of this, learned Magistrate came to the conclusion that as the Food Inspector, did not have requisite training, he could not have been working as Food Inspector and the samples collected by him and the complaint initiated by him would vitiate the proceedings. ( 9 ) THE second point dealt with by the learned Magistrate on the perusal of the deposition and further statement of the accused under Section 313 of the Code of Criminal procedure. The learned Magistrate has observed that the prosecution has failed in establishing the ownership of the shop in the name of accused No. 1. The prosecution has not shown any documentary evidence to prove that the accused No. 1 was the owner of the shop. As against this, the accused no. 1 has produced his appointment certificate issued by gram Udhyog Centre that he was working as a Weighing man and his duty hours were from 11-00 to 6-00. It is recorded by learned Magistrate that complainant in his cross-examination has admitted that copy of the report and notice as envisaged under Section 13 (2) of the Act were dispatched to the address of shop in case of both the accused and the acknowledgment receipts are produced at Ex. 24 qua accused no. 1 and Ex. 27 qua accused No. 2, bear the signature of accused No. 2, which shows that the accused No. 1 could not have been said to have received the notice. 24 qua accused no. 1 and Ex. 27 qua accused No. 2, bear the signature of accused No. 2, which shows that the accused No. 1 could not have been said to have received the notice. This finding is also based upon the fact that the accused No. 2 has denied his signature on the postal acknowledgment due. In view of this, learned Magistrate has come to the conclusion that there is non-compliance of mandatory provision of Section 13 (2) of the Act and therefore, nothing should thereof is enduring in favour of the accused and therefore, the accused cannot be punished due to non-compliance of the mandatory provision of Section 13 (2) of the Act as they were deprived of an opportunity of having sample tested in Central Food laboratory for further analysis. ( 10 ) SO far as point No. 3 of validity of sanction is concerned, the learned Magistrate has at length set out various ruling of this court and different courts on the point of valid sanction. However the fact remains that learned Magistrate has come to the conclusion that the sanction was not validly accorded on the only ground that sanctioning Authority did not give any reason for according sanction. Learned Magistrate has observed that as the fact regarding as to how the adulteration was found, was not mentioned in the report and as the sanction was accorded on the very same day when it was sought and as the details of section was not mentioned in the Sanctioning Authoritys order, the sanction stands vitiated on account of non application of mind. The learned Magistrate has further observed that in view of the over all facts and circumstances of the case, sanction was not validly accorded and therefore, in the result, he has recorded the acquittal of the accused of the charges levelled against them. ( 11 ) LEARNED Magistrate has quoted rulings of this court as well as other High Courts, however, this court need not dilate upon the same in view of the fact that points raised by the learned Magistrate are already covered by the Apex court in case of Suresh H. Rajput and others Vs. Bhartiben pravinbhai Soni and others, reported in (1996) 7 SCC p. 199. Bhartiben pravinbhai Soni and others, reported in (1996) 7 SCC p. 199. It is important to note that this judgment is in case of this very Corporation and the question of sanction and qualification of Food Inspector etc. were discussed and answered by the Supreme Court. Learned Magistrate has erred in holding that Food Inspectors appointment was not valid as there was lacuna in training and qualification and therefore the benefit of this infirmity should go to the accused. It is important to note that the valid appointment of the Food Inspector was not the issue at all, in as much as, the Food Inspector was validly appointed by the competent Authority and the relevant notification is at ex. 11 page 31 of the paper book. The Notification is dated 31st December, 1980/1st January, 1981. In the said notification, the name of present Food Inspector figured at sr. No. 6. This Notification was never challenged and it cannot rightly be gone into in collateral proceedings like the one on hand. The fact remains that Notification dated 31st December, 1980/1st January, 1981 was validly inuring till completion of trial and it was never recended or cancelled by the Competent Authority. The present complainant Food Inspector received competence, power and authority under said official notification and therefore, he was acting and discharging his duties thereunder. Therefore, it cannot be said that on account of alleged lacuna of qualification, lodging of complaint or collecting samples would be vitiated. The Apex Court in case of Suresh H. Rajput (Supra) in para 14 observed as under :-Para 14 : In appeal @ SLP (Cri.) No. 1924 of 1992, the learned Magistrate had further held that, therefore, he was not competent to take the samples. We find that the Magistrate illegally proceeded on that assumption. The qualifications of the Food Inspector cannot be challenged in collateral proceedings. What is material is whether the Food Inspector had taken the samples in accordance with the provisions of the Act or the rules made thereunder. In case the Court finds that if he committed any contravention, what would be its effect on the prosecution is a matter to be considered but his qualification cannot be looked into when he lays the prosecution for adulteration of the articles of food under the Act. In case the Court finds that if he committed any contravention, what would be its effect on the prosecution is a matter to be considered but his qualification cannot be looked into when he lays the prosecution for adulteration of the articles of food under the Act. ( 12 ) THUS, in absence of any specific allegation that the complainant has committed error in collecting the food samples and/or in sealing the food samples and/or in forwarding the same before the authority and in absence of any finding that Food Inspector has violated the mandatory provisions in respect of collecting the samples, sealing and in dispatching the same to the respective authority, it was not open for the learned Magistrate to hold in favour of the accused only on the point of deposition of Food Inspector that he has not received training of 90 days and he has received training of 45 days. This finding of the learned Magistrate therefore, deserves to be set aside and is accordingly set aside. ( 13 ) THE next point raised by learned Magistrate is that whether there was due compliance with provision of Section 13 (2) of the PFA Act. It is expedient here to set out the correct version of the deposition of the complainant and the documents which have already been on the record in order to appreciate the point in its true perspective. ( 14 ) THE complainant is examined and his deposition is recorded at Ex. 10. He has in detail narrated the compliant and has recorded that he has in compliance of the mandatory provisions of the Act collected the samples, sealed it and forwarded in the prescribed form to the authorities under the Act and Rules. He has also narrated in detail that he has duly informed the vendor about his identify before collecting the samples for analysis. He has issued the requisite notice and obtained signature of the vendor and panch. He has also paid the price for samples i. e. Cotton seed oil and obtained necessary signature of the panch witnesses and the vendor on the cash memo. The panchnama is duly drawn in presence of the panch and the entire event of collecting the samples are seems to be in accordance with the provisions of PFA Act and Rules. He has also paid the price for samples i. e. Cotton seed oil and obtained necessary signature of the panch witnesses and the vendor on the cash memo. The panchnama is duly drawn in presence of the panch and the entire event of collecting the samples are seems to be in accordance with the provisions of PFA Act and Rules. He has deposed in his deposition that after filing the complaint, the Local Health authority had asked him to dispatch the notice and the report of the Public Analyst to the accused No. 1 and 2 in accordance with the provisions of Section 13 (2) of the Act and he dispatched the same by registered post to accused No. 1 and 2 on the address of their shop. The office copy of the notice is produced at Ex. 22. The registered postal acknowledgment receipt is produced at Ex. 23, which is signed by accused No. 2 on behalf of accused No. 1. The acknowledgment receipt of accused No. 1 and 2 are produced at Ex. 24 and 27 respectively. The learned Magistrate seems to have relied on the statement of the complainant in the cross-examination that Ex. 24 postal receipt does not bear the signature of accused No. 1. However, in the same breath, he has denied the suggestion that the accused No. 1 was not sent copy of notice of Public Analyst as per Section 13 (2) of the Act. ( 15 ) ON close perusal of the postal receipts at Ex. 24 and 27, it would clearly show that accused no. 2 has affixed the signature on both the acknowledgment dues and on the first acknowledgment due at Ex. 24, he has put his signature showing that he has accepted the same on behalf of accused no. 1 and second acknowledgment receipt, which is addressed to him, was accepted by him. Though, the accused No. 2 has in his further statement stated that it is not his signature. However, learned Magistrate has recorded finding that postal acknowledgment receipt at Ex. 27 and 24 clearly show that both the documents were received by accused No. 2 and he has come to the conclusion that it does not mean that respondent No. 1 is duly served and therefore, he came to the conclusion that in absence of signature of accused no. 27 and 24 clearly show that both the documents were received by accused No. 2 and he has come to the conclusion that it does not mean that respondent No. 1 is duly served and therefore, he came to the conclusion that in absence of signature of accused no. 1 on the postal acknowledgment due, it is said that accused no. 1 was served with notice and accordingly, he has acquitted the respondent No. 1 and also stated that as the accused No. 1 was acquitted, the respondent No. 2 is also acquitted. This court is of the view that learned Magistrate has erred in giving such finding when the fact remains that postal slip produced by the prosecution shows that same was addressed at the address of shop. In the panchnama, it is mentioned that while collecting the samples, the accused No. 2 had unequivocally stated that shop was owned by accused no. 1 and the accused No. 1 happens to be his brother. In view of the fact that notice along with Public Analyst report as envisaged under Section 13 (2) of the Act were sent at the address, which was known and which was on the record, so that both the accused may receive the same. That the accused have not chosen to rebut the legitimate presumption of having due receipt of the article, which was sent by officer in his official capacity under registered post AD. on the new address. The legitimate presumption, which was not rebutted by accused by leading evidence, would go to show that there was a due compliance of Section 13 (2) of the act. It is important to note that accused No. 2 has received the notice on behalf of accused No. 1, that is seen from the evidence on record and that fact stands proved as in absence of any effective contrary evidence on record. Therefore, learned Magistrate erred in finding non-compliance of the provision under Section 13 (2) of the Act and the said finding deserves to be quashed and set aside. In view of this, this court comes to the conclusion that finding recorded by the learned Magistrate of non application of mind under Section 13 (2) of the Act deserves to be quashed and set aside. In view of this, this court comes to the conclusion that finding recorded by the learned Magistrate of non application of mind under Section 13 (2) of the Act deserves to be quashed and set aside. ( 16 ) NOW dealing with the third point i. e. Sanction, it is stated that learned Magistrate has discussed enlisted authorities of this Court as well as of other courts on the point of valid sanction and comes to the conclusion that as the sanction did not contained the proper provision under law, the offence is alleged to have been committed and as the sanctioning authority has accorded his sanction on the very same day, therefore, the sanction was without application of mind and therefore, it was an invalid sanction and would vitiate the prosecution. ( 17 ) IN view of the decision of the Apex Court in Case of suresh H. Rajput (Supra) in para 6,7,8,9 and 10, the Supreme court has observed as under :-para 6 : It is not in dispute that the local health Authority has been designated with the power to accord sanction for laying the prosecution under the Act. Material portion of the consent order reads thus : I hereby give consent to the Food Inspector Shri S. H. Rajput to prosecution. (name of the accused was mentioned in each case) For contravening the provision of Prevention of Food Adulteration Act, 1954 as alleged in the above report of the Food Inspector. This consent is given after going through the analysis report of the public analyst and other pertinent papers and documents and the nature of offence committed by the alleged offenders, as required by Section 20 of the Prevention of Food Adulteration Act, 1954. para 7 :it would thus be clear that the sanctioning authority, viz. Local Health Authority had considered the report of the public analyst and other pertinent papers and the documents which contained the report of the Food Inspector and thereafter accorded sanction to prosecute the respondent. Para 8 : The question that emerges is whether the sanction is in accordance with law. The learned Magistrate held that the sanction was a cyclostyled order and that the authority did not apply its mind to the facts constituting the offence and that, therefore, the grant of sanction is invalid in law. Para 8 : The question that emerges is whether the sanction is in accordance with law. The learned Magistrate held that the sanction was a cyclostyled order and that the authority did not apply its mind to the facts constituting the offence and that, therefore, the grant of sanction is invalid in law. We find it difficult to give acceptance to the reasoning of the learned Magistrate. Unfortunately, the learned Single Judge of the High Court did not apply his mind nor adverted to any of the material questions. He merely concurred with the view expressed by the Magistrate in a cryptic order. In fact, on merits, the learned Magistrate has held that the prosecution had established the offence. All that was held was that the sanction was not in accordance with Section 20 (1) of the Act. para 9 :learned counsel for the respondents sought to rely on the decision of this Court in A. K. Roy v. State of Punjab. That was a case where sub-delegation was made by the Local (Health) Authority to the Food Inspector for laying the prosecution. It was not a case of granting any sanction by him. In fact, this court had pointed out in para 9 that Sit is common ground that the prosecution in the instant case has not been launched either by or with the written consent of the Central Government or the State Government. It, therefore, becomes necessary to ascertain whether the Food Inspector, Faridkot was duly authorized to launch a prosecution. Then this court had examined the question and held in para 11 that Sthe terms of Section 20 (1) of the Act do not postulate further delegation by the person so authorized; he can only given his consent in writing when he is satisfied that a prima-facie case exists in the facts of a particular case and records his reasons for the launching of such prosecution the public interest. In other words, this Court had held that the Local (Health) Authority has no power to delegate the power to launch prosecution to the Food Inspector, but in terms of Section 20 (1), the authority can give its consent in writing when it is satisfied that prima facie case exists in the facts of a particular case for laying the prosecution. para 10 : In State of Bombay v. Parshottam Kanaiyalal, far from helping the respondents, this court at p. 461 held that Sthis sanction is accorded after going through Milk Analysts Report and other pertinent documents and the nature of offence committed by each of the above persons as required by Section 20 of the Prevention of Food Adulteration Act, 1954. This court had approved the sanction given by the Local (Heath) Authority of this very Municipality in this case and it was held that it is not necessary that the name of the offender should be indicated in the sanction order. After this judgment, to avoid further protraction, the form was revised and the name of the offender and the authority to whom sanction is given have been expressly specified in the sanction order. 8. In the instant case also, as it is seen from the sanction letter, the Sanctioning Authority had before issuance of sanction, perused the entire file, record and Public Analysts report and after due application of mind, it has accorded the sanction. In view of this, learned Magistrate has erred in coming to the conclusion that sanction was invalidly accorded. This court, there comes to the conclusion that the finding of the learned Magistrate in respect of sanction is quit erroneous and the same deserves to be quashed and set aside. 9. It is pertinent to note at this stage that the trial court has not addressed on the issue of adulteration itself. The learned Magistrate has proceeded only on technical aspect of the matter and recorded the acquittal of the accused. The points raised in support of the acquittal are not tenable in view of the aforesaid discussion and therefore, the acquittal recorded by the learned Magistrate only on this point, is not sustainable. The matter deserves to be remanded to the trial Court for recording its finding on the aspect of adulteration and other points that may be raised by the accused, except the points which have been discussed and answered herein above. In the result, the appeal is partly allowed. The judgment and order of the learned Magistrate dated 12. 5. 1989 passed in Criminal Case no. 9720 of 1986 is hereby quashed and set aside and the matter is remanded for further hearing to the trial Court. In the result, the appeal is partly allowed. The judgment and order of the learned Magistrate dated 12. 5. 1989 passed in Criminal Case no. 9720 of 1986 is hereby quashed and set aside and the matter is remanded for further hearing to the trial Court. Looking to the passage of time, this court is of the view that further hearing by the trial Court shall be completed within a period of 4 months from the receipt of writ after affording an opportunity to the accused of being heard. The registry is directed to send back the record and proceedings to the trial Court immediately. .