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Gujarat High Court · body

2007 DIGILAW 159 (GUJ)

STATE OF GUJARAT v. AMRUTBHAI SENDHABHAI PATEL

2007-03-08

S.R.BRAHMBHATT

body2007
S. R. BRAHMBHATT, J. ( 1 ) THE appellant state of Gujarat has preferred this appeal under Section 378 of the Code of Criminal procedure, 1973 (hereinafter referred to as the Code for short) challenging the order of acquittal passed by the Sessions Court, navsari dated 20. 10. 2004 passed in criminal Appeal No. 39 of 2000 setting aside the order of conviction dated 15. 7. 2000 passed by the Chief Judicial Magistrate, Navasari in Criminal Case No. 6742 of 1998, acquitting the respondent original accused of the charge of committing an offence punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act for short ). ( 2 ) LEARNED APP Shri Patel has produced copies of relevant papers pertaining to criminal Case No. 6742 of 1998 and Criminal appeal No. 39 of 2000 for perusal of this court. Shri Patel has addressed this Court on merits of the Appeal right at the stage of seeking leave to Appeal and taken the Court through the relevant papers pertaining to criminal Case No. 6742 of 1998 and criminal Appeal No. 39 of 2000 and made elaborate submissions on merits. Shri Joshi, learned advocate for Mr. Pardiwala, learned counsel appearing for the respondent original accused also made elaborate submissions on the merit of the matter. ( 3 ) BRIEF facts leading to file this appeal deserves to be set out as under. ( 4 ) THE original complainant and the concerned Food Inspector on 13. 8. 1997 at 11. 00 hours at Navsari visited the business premises of the respondent-vendor which was run in the style and name of Mahavir Sweet and Dairy Farm. After issuing notice under rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules ) in Form VI, indicating his intention to collect the sample food of Kesri shrikhand (loose) for the purpose of examining the same by the Public Analyst, purchased 900 grams of Kesri Shrikhand (loose)on payment of Rs. 50. 40ps. The sample food article was purchased in presence of panch. The sample food article was thereafter divided into three equal proportion and collected in a glass bottle, which were sealed in accordance with law. The entire procedure of sealing the sample food article was carried out in presence of the panch and panchnama to that effect was drawn. 50. 40ps. The sample food article was purchased in presence of panch. The sample food article was thereafter divided into three equal proportion and collected in a glass bottle, which were sealed in accordance with law. The entire procedure of sealing the sample food article was carried out in presence of the panch and panchnama to that effect was drawn. The food Inspector, thereafter, sent one part of the sample food article to the Public Analyst and also sent to the Public Analyst the memorandum and specimen copy of seal separately as required under law. The remaining two parts of the sample food article were sent to Local Health Authority with an intimation that sample in question was sent to the Public Analyst for the purpose of analysis and copy of the memorandum and specimen copy of the seal were also sent. The Public Analyst in its report dated 9. 9. 1997 at Ex. 24 opined that the sample food article was not in conformity with the standards laid down in the PFA Rules and therefore, the same was declared as adulterated . The report of the Public Analyst was sent to the Food Inspector for preparing papers for lodging the prosecution, as prosecution was required to be lodged against the vendor original accused for committing an offence punishable under sections 7 and 16 of the Act. The Food Inspector sent request to the Local Health Authority vide communication at Ex. 26 for obtaining requisite sanction under Section 20 for lodging the prosecution against the accused. The sanction was accorded on 20. 7. 1998, which is at Ex. 27. The complaint was lodged on 21. 9. 1998, as it appears from the record, which came to be registered as Criminal case No. 6742 of 1998 against the accused for commission of offence punishable under sections 7 and 16 of the Act. ( 5 ) THE Food Inspector intimated to the local Health Authority about filing of the complaint so that the Local Health Authority may issue notice under Section 13 (2) of the Act affording an opportunity to the accused of having been tested the remaining two parts of the sample food article at the central Food Laboratory. The Local Health authority appears to have issued notice under Section 13 (2) of the Act alongwith copy of the report of Public Analyst on 22. 9. The Local Health authority appears to have issued notice under Section 13 (2) of the Act alongwith copy of the report of Public Analyst on 22. 9. 1998, which is produced at Ex. 29. The accused was summoned, who pleaded not guilty and claimed to be tried. The trial commenced. The trial Court has come to the conclusion that accused had committed an offence punishable under Sections 7 and 16 of the Act and imposed punishment of simple Imprisonment for a period of 1 year and fine of Rs. 1000 and in default thereof, to undergo further Simple Imprisonment for a period of 60 days. The order of conviction and sentence was passed on 15. 7. 2000. The accused convict preferred Criminal Appeal being Criminal Appeal No. 39 of 2000 challenging the order of conviction passed by chief Judicial Magistrate, Navsari in Criminal case No. 6742 of 1998 before the Sessions Court at Navsari. The Criminal Appeal was allowed by Sessions Court vide its order dated 20. 10. 2004 and acquitted the accused of the charge committing an offence punishable under Sections 7 and 16 of the act and quashed and set aside the order of conviction and sentence passed by Chief judicial Magistrate, Navsari in Criminal case No. 6742 of 1998. The said Order is impugned in this acquittal appeal under Section 378 of the Code. ( 6 ) SHRI Patel, learned APP for the appellant has submitted that the trial Court has proceeded on the footing that there was a breach of Rule 16 and on that count, the order of acquittal has been recorded. The trial Court s order was absolutely legal and proper and therefore, order of acquittal passed by the Appellate Court deserve to be quashed and set aside. Shri Patel has submitted that the Appellate Court has not appreciated the evidence on record and has patently erred in recording the acquittal especially when a serious offence affecting the Society was properly tried and accused was convicted and imposed upon the sentence by the trial Court vide its order dated 15. 7. 2000. Shri Patel has submitted that the Appellate Court has not appreciated the evidence on record and has patently erred in recording the acquittal especially when a serious offence affecting the Society was properly tried and accused was convicted and imposed upon the sentence by the trial Court vide its order dated 15. 7. 2000. Shri Patel has further submitted that finding of the trial Court convicting the accused appears to be just and proper and trial Court has recorded the finding that entire procedure was complied with for sealing and sending the sample to the Public analyst and as the Public Analyst has declared the sample food article as adulterated as it was not in conformity with the provisions of PFA Rules, the order of conviction ought to have been upheld by the appellate Court. Shri Patel has submitted that the Appellate Court has not addressed itself to the evidence adduced on the record by the prosecution and submits that the order of acquittal deserves to be quashed and set aside. ( 7 ) SHRI Joshi for Shri Pardiwala, learned advocate for the respondent original accused has submitted that the sample food article being a milk product, the delay in entire proceedings has in fact adversely affected and prejudiced the right of the accused and deprived him of his valuable right flowing from Section 13 (2) of the Act of having the same tested before the Central Food Laboratory. Shri Joshi has submitted that the leave deserves to be refused and appeal is to be dismissed only on the ground that admitted facts are going to show that the sample food article was collected way back on 13. 8. 1997 and the complaint came to be filed only on 21. 9. 1998 and the notice under Section 13 (2) came to be issued on 22. 9. 1998. The sample food article being milk product, it was bounden duty cast upon the prosecution to add the preservatives and keep it in refrigerated condition so as to see that it does not loose its natural strength. In the instant case in absence of any such evidence, it cannot be said that the order of acquittal is suffering from any infirmity as such. In the instant case in absence of any such evidence, it cannot be said that the order of acquittal is suffering from any infirmity as such. Shri Joshi has further submitted that this being an acquittal appeal, the respondent original accused has right to advance the submissions if available from the material on record in support of his acquittal that may be different than the once ground weighed with the Appellate Court for his acquittal. In acquittal appeal, unless and until it is aptly demonstrated by the appellate that the order of acquittal has resulted into miscarriage of justice, the same cannot be interfered with under Section 378 of the Code. ( 8 ) THIS Court has heard the learned counsel for the parties and perused the relevant papers produced by learned APP of criminal Appeal No. 39 of 2000 and Criminal Case no. 6742 of 1998. ( 9 ) THE undisputed facts emerge from the record deserves to be set out as under: 1. The concerned Food Inspector collected the sample food article on 13. 8. 1997 from the accused original vendor. 2. The sample food article was Kesri shrikhand (loose ). 3. The concerned Food Inspector has stated that he added preservatives in requisite proportion in to the sample food article. 4. The sample food article was collected in presence of panch witness and helper of the Food inspector. 5. The helper in his testimony has stated that after collecting the sample, the remaining proceeding was done by the Food Inspector at his place only at Valsad. 6. The Food Inspector has described the sample food article to be Kesri shrikhand (loose) made out of mix milk of cow and buffalo. 7. The sample food article was mixed with preservative formalin of adequate strength. 8. The food sample was properly sealed in presence of panch witness. 9. The food sample was dispatched to the Public Analysis on 14. 8. 1997 alongwith covering letter, which is produced at Ex. 19. 10. The Food Inspector sent the intimation of the collected sample to the Local Health Authority. A copy of whereof is produced at Ex. 18. 11. The Food Inspector in his report dated 11. 9. 9. The food sample was dispatched to the Public Analysis on 14. 8. 1997 alongwith covering letter, which is produced at Ex. 19. 10. The Food Inspector sent the intimation of the collected sample to the Local Health Authority. A copy of whereof is produced at Ex. 18. 11. The Food Inspector in his report dated 11. 9. 1997 opined that Kesri shrikhand (loose) prepared out of mixed milk of cow and buffalo, did not confirm to the standards and provisions laid down under the pfa Rules, Hence, it was declared to be adulterated. 12. The Local Health Authority sent communication to the Food inspector on 18. 9. 1997 along with copy of the report of the Public analyst dated 9. 9. 1997 intimating him that the requisite papers be prepared for lodging prosecution with all the details, which is produced at Ex. 23. 13. The Food Inspector prepared papers and put up the same to the local Health Authority for obtaining sanction vide his letter, which is produced at Ex. 26. 14. The Local Health Authority accorded its sanction for lodging prosecution against the accused vide his letter dated 20. 7. 1998, which is at Ex. 27. 15. The Food Inspector concerned lodged criminal case against the accused only on 21. 9. 1998 i. e. after a period of about 2 months after receiving the sanction. 16. The Local Health Authority was informed by the Food Inspector about lodging of the complaint against the accused so as to unable him to issue notice under Section 13 (2) of the Act to the accused as required under law. 17. The Local Health Authority issued notice to the accused on 22. 9. 1998 under Section 13 (2) of the Act so as to enable him to obtain permission of the Court for sending the remaining part of the samples to the Local Health authority for further testing. Thus, from the aforesaid undisputed facts, it can be said that the sample food article i. e. milk product, which was collected on 13. 8. 1997 was kept in the office of the local Health Authority for a long period of about 13 months. But it has not come on record as to whether it was kept in refrigerated condition. Thus, from the aforesaid undisputed facts, it can be said that the sample food article i. e. milk product, which was collected on 13. 8. 1997 was kept in the office of the local Health Authority for a long period of about 13 months. But it has not come on record as to whether it was kept in refrigerated condition. ( 10 ) THE Apex Court in case of Municipal corporation of Delhi v. Ghisa Ram observed that the milk product is required to be tested within a stipulated time, otherwise, it would loose its strength and sample would not be fit for analysis. The relevant observation of the Apex Court deserve to be set out as under: para 6 : The opinion of one of the experts, dr. Sat Prakash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a week, it kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand, if the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purpose of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purpose of analysis will be retained for about four months and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in refrigerator. Consequently, without any preservative, the sample kept with him could have been analyzed successfully during the next 17 days whereas, if a preservative had been added, it could have been analyzed successfully during the next four months. Para 7 : It appears to us that when a valuable right is conferred by section 13 (2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Food Laboratory it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analyzed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. ( 11 ) THIS Court in case of State of Gujarat v. Ganeshbhai Chamnaji Raval observed as under: para 6 : xxx xxx xxx xxx xxx in its ruling in the case of Tulsiram v. State of Madhya Pradesh. Rule 9a, prior to its amendment, was held to be directory and not mandatory. In that case, it was held that non-compliance thereof would not vitiate the prosecution unless prejudice was caused to the accused thereby. Para 7 : Even at the cost of repetition, it may be reiterated that the article of food purchased form the restaurant of respondent accused no. 2 was curd. In its aforesaid binding ruling of the Supreme court in the case of Ghisa Ram (supra), the Apex Court has taken into consideration the expert s evidence for coming to the conclusive that the sample of curd, without addition of any preservative would remain fit for analysis for some ten days, if kept in a room temperature and for four weeks if kept in a refrigerator and, if a preservative kept is added to such sample, it would remain fit for analysis for four months if kept in a room temperature and for six months if kept in a refrigerator. Even at the cost of repetition, it may be reiterated that there is nothing on the record to show or to suggest that the two sample containers handed over in the office of the local health authority by the complainant Food Inspector were kept in a refrigerator by or in the office of that authority. Even at the cost of repetition, it may be reiterated that there is nothing on the record to show or to suggest that the two sample containers handed over in the office of the local health authority by the complainant Food Inspector were kept in a refrigerator by or in the office of that authority. In absence of any such evidence, an inference will have to be drawn to the effect that the sample containers in the office of the local health authority were kept in a room temperature and not in a refrigerator. In that view of the matter, the sample would no longer remain fit for analysis after four months in view of the aforesaid binding ruling of the supreme Court in the case of ghisa Ram (Supra ). Para 8 : As rightly submitted by learned additional Public Prosecutor Shri divetia for the appellant State, the central Food Laboratory in its certificate at exh. 31 has clearly indicated that the sample was in a condition fit for analysis. It transpires therefrom that the sample was received by the Central Food Laboratory on 9th June, 1988. It was taken by the Food Inspector on 18th January, 1988. It thus becomes clear that it was received in the Central Food Laboratory more than four months after its purchase by the Food Inspector from respondent accused No. 1 from the restaurant belonging to respondent accused No. 2. In view of the aforesaid binding ruling of the supreme Court in the case of ghisa Ram (supra), that sample would not have remained fit for analysis. If in the report at Exh. 31, the sample was found to be in a condition fit for analysis, it was an extraordinary circumstances, and as such it was necessary for the prosecution to have examined the analyst from the Central Food laboratory to prove that it remained in a condition fit for analysis even after expiry of four months from the date of its purchase by the Food Inspector on 18th January, 1988. No Analyst from the Central Food Laboratory at Ghaziabad has been examined in this case to prove that the sample received by it was in a condition fit for analysis though more than four months had elapsed from the date of its collection on 18th january, 1988. No Analyst from the Central Food Laboratory at Ghaziabad has been examined in this case to prove that the sample received by it was in a condition fit for analysis though more than four months had elapsed from the date of its collection on 18th january, 1988. In that view of the matter, an inference will have to be drawn to the effect that the sample received in the Central food Laboratory on 19th June, 1988 was not in a condition fit for analysis in view of the aforesaid binding ruling of the Supreme court in the case of Ghisa Ram (Supra ). ( 12 ) IN view of this settled principle of law in respect of milk product, the delay which is evident in lodging the prosecution can be said to have dealt serious blow to the right of the accused to have effective testing of the sample at Central Food Laboratory. Though, fact remains that accused have not opted for sample being tested at Central food Laboratory but the delay in itself would go to show that the right of the accused had seriously been jeopardized by delay in lodging the prosecution. Section 13 (2) being a mandatory sanction, as it confers valuable right upon the accused, proper and effective compliance thereof in a later and spirit is required to be established by the prosecution. In the instant case, nowhere has it come in the evidence of the prosecution that for this longer time, how the remaining two parts of the sample food articles had been preserved in the office of the Local Health Authority. As it is stated hereinabove, the milk product, if it is not kept in refrigerated condition for a period of more than 6 months, then, the milk product looses its ordinary strength rendering it unfit for testing or at least it can be said that the testing even be made, then, it would not reflect the correct position when the sample was originally collected from the vendor accused. ( 13 ) THE prosecution has not explained by giving any cogent reason for delay as the sample food article was collected on 13. 8. 1997 and prosecution was lodged only on 21. 9. 1998 and the notice under Section 13 (2) was given on 22. 9. 1998. ( 13 ) THE prosecution has not explained by giving any cogent reason for delay as the sample food article was collected on 13. 8. 1997 and prosecution was lodged only on 21. 9. 1998 and the notice under Section 13 (2) was given on 22. 9. 1998. Thus, unexplained delay has in fact prejudiced the right of the accused under Section 13 (2) of the Act and therefore, the order of acquittal cannot be said to have resulted into miscarriage of justice warranting any interference in this appeal. On the contrary granting leave and allowing the appeal would rather result into miscarriage of justice. ( 14 ) IN view of the aforesaid discussion, this Court is of the considered view that granting of the leave as sought for challenging the order of acquittal passed by the Appellate Court would not serve any ends of justice and rather it would result into miscarriage of justice and therefore, the same deserves to be refused and is accordingly refused. As the leave is refused, the appeal stands dismissed. Appeal dismissed.