Research › Search › Judgment

Gujarat High Court · body

2005 DIGILAW 509 (GUJ)

GANGAHDAR Y. RAMEKAR v. ROHITBHAI JIVANLAL PATEL

2005-07-25

S.R.BRAHMBHATT

body2005
( 1 ) THE Vadodara Municipal Corporation, Vadodara has preferred this Criminal Appeal through Gangadhar Y. Ramekar, Food Inspector under section 378 of the Criminal Procedure, Code, 1973, against the order of acquittal recorded by learned JMFC (Mun.) Vadodara dated 26-2-1991 in Criminal Case No. 5571 of 1986 acquitting respondent no. 1 original accused of charges under section 2 (1) (A), 7 and 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as the act ). The leave was granted and the appeal was admitted by this Court (Coram: B. J. Shethna, J) vide order dated 20-11-1992. ( 2 ) HEARD Shri. Pranav G. Desai with Shri. Manish Upadhyay for the appellant, Shri. B. S. Patel with Shri. Chirag B. Patel for Respondent No. 1 original accused and Shri. K. C. Shah, learned APP for Respondent No. 2 State. ( 3 ) THE case of the prosecution in short is that the original complainant who was serving as Food Inspector in vadodara Municipal Corporation visited business place of the original accused at 9. 00 0 clock on 16-5-1986 and in presence of panch witness collected 600 grams of SMethino bhardo described in English as SFonugreek Coarse Powder for sending it for the purpose of analysis to the Public analyst. The complainant paid Rs. 5=40 for purchasing the said methino bhardo an the receipt was obtained, which was produced at exhibit-18 and the bill is produced at exhibit- ( 4 ) THEREAFTER the sample food stuff was divided into 3 equal parts and after collecting it in a clean dried bottles, properly sealed, wrapped and labeled in accordance with the provisions of law and one part of the sample was forwarded it to the Public Analyst for the purpose of analysis and the remaining 2 parts were forwarded to the local Health Authority as required under the law. On receipt of report from Public Analyst indicating that the sample food article was not in accordance with the standards laid down in law, the complainant prepared complete report for obtaining consent form the Local Health Authority for lodging prosecution against the accused. The concerned Local health Authority after perusing the relevant record and the report of the Public Analyst accorded consent for lodging prosecution and thus the complaint came to be lodged on 23-5- 1986. The concerned Local health Authority after perusing the relevant record and the report of the Public Analyst accorded consent for lodging prosecution and thus the complaint came to be lodged on 23-5- 1986. As the complainant supported his complaint in his deposition at exhibit-9 a charge came to be framed against the accused. After recording his plea of denial the matter had proceeded further. Learned trial court has framed 3 issues, namely (1) whether the prosecution has proved beyond doubt that methino bhardo (Jawara methi) collected from the accused was in conformity with the standards prescribed under the rules; (2) whether there is any breach of provisions of PFA Act or Rules; (3) what order. Learned trial court has answered the Issue No. 1 in the affirmative, for Issue No. 2 he has held that there was breach of Section 20 of the Rules and therefore exhibit-26 consent was not legal and proper; and answered Issue No. 3 as per his order. ( 5 ) LEARNED Magistrate has recorded the order of acquittal only on the point that the consent accorded under section 20 was not accorded after application of mind as it was noticed from the deposition of the complainant that it was not accorded after holding any discussion with the complainant nor did it reveal that it was being issued in public interest and or that it was accorded for the offence specially mentioned under the provisions of the Act and Rules. In view of this, learned Magistrate has held that the consent was not in accordance with law and, therefore, on this sole ground acquittal order came to be recorded. ( 6 ) SHRI. Upadhyay has strenuously urged that the order of acquittal deserves to be reversed in view of the fact that the learned Magistrate has come to the conclusion that the sample food article was in fact not in conformity with the standards prescribed under the rules. He has erroneously held that the consent was not properly granted and therefore merely on that ground the acquittal was recorded. Shri. Upadhyay has relied upon the decision of the Apex Court in case of SURESH H. RAJPUT and ORS. Vs. BHARTIBEN PRAVINBHAI soni and ORS, reported in (1996) 7 SCC Pg. He has erroneously held that the consent was not properly granted and therefore merely on that ground the acquittal was recorded. Shri. Upadhyay has relied upon the decision of the Apex Court in case of SURESH H. RAJPUT and ORS. Vs. BHARTIBEN PRAVINBHAI soni and ORS, reported in (1996) 7 SCC Pg. 199, in support of his submission that the reasoning given by learned trial court for holding consent to be illegal was erroneous and therefore not tenable in eye of law. He relies upon the observations of the Apex Court in para-11 and 12 and submitted that the consenting authority was not to weigh pros and cons and possibility of securing the conviction while considering the issue of granting consent for lodging prosecution. He has submitted that the evidence on record clearly show that the consenting authority had perused the entire report prepared by the Food Inspector along with relevant papers and the report of the Public Analyst before according consent for lodging prosecution. In view of this it can not be said that there was non application of mind on the part of the consenting authority in according the consent and, therefore, the consent ought not to have been treated to have issued illegally and invalidly, and on that basis alone the acquittal could not have been recorded. Shri. Upadhyay has further urged that in view of the finding of adulteration of the food sample and in view of the fact that the acquittal recorded on an erroneous reasoning contrary to the established principle of law laid down by the Apex Court, Respondent no. 1 original accused deserves to be convicted and appropriate sentence be awarded. ( 7 ) SHRI. Chirag Patel has submitted that the order recording acquittal is proper and the acquittal therefore deserves to be upheld by this Court. Shri. Patel has urged that this being an acquittal appeal it was open to the respondents counsel to support the order of acquittal on the basis of the material evidences available on record. Shri. Patel has submitted that in acquittal appeal the respondent can support the acquittal recorded by the learned trial court even on those grounds which have not been discussed or on findings different than the findings of the learned Magistrate. Shri. Patel has submitted that in acquittal appeal the respondent can support the acquittal recorded by the learned trial court even on those grounds which have not been discussed or on findings different than the findings of the learned Magistrate. The conclusion of the learned Magistrate of acquitting respondent thus could well be supported with the proper appreciation of the evidence which may lead to even reversing the findings of the trial court on one point or other. In the instant case also, therefore, it will be his strenuous efforts to support the conclusion of acquittal on an independent ground that may have not been discussed by the learned trial judge in support of his clients acquittal. Shri. Patel has submitted that the trial court has proceeded for recording acquittal on the basis of infirmity in the order of consent only. The unhappily worded Issue No. 1 in fact show that the learned Magistrate has come to the conclusion that the adulteration was proved but the acquittal was ordered on account of infirmity in the sanction for prosecution. ( 8 ) SHRI. Patel submits that in view of the judgment of the Apex Court in case of SURESH H. RAJPUT AND ORS. Vs. BHARTIBEN PRAVINBHAI SONI and ORS. Reported in (1996) 7 SCC pg. 199, the finding of infirmity in the order of sanction would not be tenable though he urges that the court may appreciate the evidences on record and may not disturb the findings of acquittal. Therefore Shri. Patel has invited this Courts attention to the cash memo where under the subject sample food article was purchased, the notice under Rule-12 in form-6, the panchnama, forwarding letter by Food Inspector to the public Analyst and Local Health Authority, the report of the Public Analyst, report prepared for obtaining consent etc. and submitted that in all the correspondence and documents the food sample is referred to as S methino bhardo Sjawara methi. This food article is nowhere prescribed under the provisions of Food Adulteration Rules, 1955 and therefore it can well be said that the prosecution has failed in establishing beyond doubt that the accused had committed an offence of selling adulterated food article sample to the Food Inspector. ( 9 ) THIS Court has minutely examined the evidence on record and heard learned counsels of the parties. ( 9 ) THIS Court has minutely examined the evidence on record and heard learned counsels of the parties. The finding of the learned trial court in respect of infirmity in the consent order deserves to be reversed in view of the fact that the said finding can not be sustained in light of the observations of the Apex Court in case of Suresh H. Rajput and Ors (supra ). At this point of time Shri. Upadhyay learned counsel for the appellant submits that as the sole finding on which the acquittal was ordered is reversed by this Court the matter may be remanded. This Court is not inclined to accept this submission, as the materials on record, the deposition of the complainant and the express provision of Rules would be sufficient to raise a doubt that the food article which was sold to the complainant was not the one for which the standards are laid down in the Rules. In other words it can well be said that the prosecution has failed in establishing beyond doubt that the very food article which was purchased from the accused was adulterated as per the standards prescribed under the Rules. ( 10 ) THE cash memo at exhibit-19 dated 13-2-1991 shows that the sample food article is referred therein as methi bhardo 600 grams, and below that it is mentioned that singthelma shekelo jawarano ; meaning thereby roasted in groundnut oil jawara. This facts could be found in the notice under rule 12 in Form-6 and the receipt at exhibit-18 also, wherein it is observed that the Food Inspector i. e. Original complainant has referred methino bhardo in identical language and phraseology in his report to the Local Health authority at exhibit-22. The Food Inspector has referred the food sample in question in the same phraseology in his letter dated 16-5-1986 at exhibit-32 which was addressed to the Public Analyst where under the food sample was referred to the Public Analyst. At exhibit-33 also the food sample is referred to in the same phraseology without any change. The public Analyst in his forwarding letter has also referred to the said sample in the same phraseology that methino bhardo jawara methi and the Food Inspector original complainant in his report submitted to the Public Analyst has also referred to the said sample in the same phraseology. The public Analyst in his forwarding letter has also referred to the said sample in the same phraseology that methino bhardo jawara methi and the Food Inspector original complainant in his report submitted to the Public Analyst has also referred to the said sample in the same phraseology. It is essential to make a mention that even in the charge the learned trial court has also employed the same phraseology for referring the sample in question that the accused was charged of selling methino bhardo jawara methi to the Food Inspector. ( 11 ) IN the deposition of the complainant the following admissions have emerged; (1) that no standard is prescribed under Prevention of Food Adulteration Rules, 1955 for methino bhardo; (2) that the said food sample i. e. methino bhardo was taken form the back of the shop; (3) that in the front of the shop various spice preparations were displayed in sealed packets for selling. ( 12 ) THE complainant deponent has denied following suggestions: (1) it was not correct that the accused had informed him that the goods stored in the back side of the shop was not meant for sale; (2) it was not correct that the accused was selling goods in sealed packets only; (3) it was not correct that this methino bhardo was kept for being used in a preparation as an ingredient for making pickles; (4) it was not correct that he has used force in collecting the sample which was not meant for sale. ( 13 ) AT Item: A 05. 12 the colloquially known methi food is described as under:"a. 05. 12-Fenugreek (methi) whole means the dried ripe seeds of Trionella foenum groecum L. The proportion of extraneous matter including dust, dirt, stone lumps of earth, chaff, stem or straw shall not exceed 5. 0 per cent by weight. The proportion of edible seeds other than Fenugreek shall not exceed 5. 0 per cent, by weight. [the amount of insect-damaged matter shall not exceed 5 per cent by weight. It shall be free from added colouring matter] Explanation The term Sinsect damaged matter means spices that are partially or wholly bored by insects]"and;"a. 05. 12. 01-Fenugreek (methi) powder means the powder obtained by grinding the dried ripe seeds of Trigonella foenum grecum L. The powder shall conform to the following standards: moisture. . . . Not more than 10. It shall be free from added colouring matter] Explanation The term Sinsect damaged matter means spices that are partially or wholly bored by insects]"and;"a. 05. 12. 01-Fenugreek (methi) powder means the powder obtained by grinding the dried ripe seeds of Trigonella foenum grecum L. The powder shall conform to the following standards: moisture. . . . Not more than 10. 0 percent by wt. Total ash. . . Not more than 7. 0 per cent weight. Ash insoluble in dilute HCL. . Not more than 2. 0 per cent by weight. Cold water soluble extract. . . Not less than 30. 0 per cent by weight. [it shall be free from added colouring powder]"thus it is clear that the methi whole and methi in a powder form is described in the provisions of Rule-55 and standards are also laid down. However the food article in question in the instant case has consistently been referred to as smethino bhardo jawara methi and this food article is admittedly not finding place in the prescribed standards laid down in the provisions of Food Adulteration Rules, 1955. Shri. Upadhyay, learned counsel appearing on behalf of the appellant has submitted that fenugreek methi powder at item A. 05. 12. 01 takes care of the food article in question in the instant case. He submits that the word bhardo is defined in the prevalent well known Gujarati dictionary in bhagvadhro Mandal as coarse grounded cereal or pulse. In short bhardo in Gujarati amounts to course grinding of the grains and therefore it is covered under the said Item a. 05. 12. 01 and as the food sample in question was found to be having added colour which is prohibited, the same can well be said to be adulterated food article. ( 14 ) AS it is stated herein above the prosecution has failed in explaining beyond doubt that the food article in question is the food article which is finding its place under Item A. 05. 12. 01. It was the duty of the prosecution to explain the employment of word jawara methi which is found everywhere in all correspondence. ( 14 ) AS it is stated herein above the prosecution has failed in explaining beyond doubt that the food article in question is the food article which is finding its place under Item A. 05. 12. 01. It was the duty of the prosecution to explain the employment of word jawara methi which is found everywhere in all correspondence. As the employment of jawara methi has been consistently found and the same remain unexplained the defence has legitimate right to submit that the prosecution has not proved its case beyond doubt that the food article in question was the only food article referred to at Item A. 05. 12. 01 of the Rules-1955. In view of this,this Court is inclined to accept the submission of learned counsel of the respondent that the prosecution has not explained the employment of word jawara methi and has also failed in proving beyond doubt that even the processed methi, i. e. methi if it is roasted in groundnut oil was intended to be the same methi as it was described in Item A. 05. 12. 01. ( 15 ) IT is important to note that in fastening the criminal liability strict interpretation or application of the provisions are warranted. It is an admitted fact that the food Inspector original complainant, the Public Analyst and the Public Health Authority have consistently referred the sample food article as methino bhardo jawara methi as a further description when roasted in groundnut oil. All these factors go to suggest clearly that the food sample in question was a processed one and it had changed its form during this process. In view of this it was the bounden duty cast upon the prosecution to prove beyond doubt that the food sample in question was nothing else but the food article referred to in Item A. 05. 12. 01 of the Rules. ( 16 ) AS the prosecution has failed in proving the case beyond doubt, the order of acquittal does not call for any interference in the acquittal appeal at this stage. In the result, the order of acquittal is confirmed and the appeal is dismissed. .