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2007 DIGILAW 57 (GUJ)

STATE OF GUJARAT v. BARKATALI PYARALI HASANANI

2007-01-31

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 dated 12. 12. 2003 passed by the learned JMFC, Botad in Criminal Case no. 1163 of 2000 acquitting the respondents original accused for commission of offences punishable under Sections 7 and 16 of the prevention of Food Adulteration Act, 1954 (hereinafter referred to as the act for short ). ( 2 ) HEARD Shri Patel, learned APP for the appellant State of Gujarat and Shri Modi, learned counsel for the respondents original accused. ( 3 ) SHRI Patel, learned APP has produced on record the relevant case papers pertaining to Criminal Case No. 1163 of 2000, the same is taken on record. Both the counsels for the parties have requested that they be permitted to address the Court on merits of the case at this stage. The request is accepted and the counsels were heard on merits at the admission stage. ( 4 ) BRIEF facts leading to filing this appeal and leave to appeal deserves to be set out as under. ( 5 ) THE original complainant Food Inspector while discharging his duties as such on 2. 2. 2000 visited the shop of the accused No. 1, who was present in the shop. At that time, the accused No. 1 was selling the ground nut oil of Gopi Brand produced by accused No. 10 firm Ramkrishna Oil Mill. The respondents original accused Nos. 2 to 9 are the Partners in accused No. 10 Firm, who is responsible for producing the sample food article. After notifying his intention to take sample of ground nut oil, the Food Inspector issued notice under Rule 12 of the Prevention of food Adulteration Rules, 1955 (hereinafter referred to as the Rules for short) in Form no. VI. The complainant purchased 400 grams of ground nut oil from the packed tin of 15 Kgs. of Gopi Brand, manufactured and produced by accused No. 10. The sample of the ground nut oil was divided into three equal parts and collected in the odourless, clean glass bottles. The glass bottles were duly sealed in accordance with law and necessary signatures and labels were affixed thereon. of Gopi Brand, manufactured and produced by accused No. 10. The sample of the ground nut oil was divided into three equal parts and collected in the odourless, clean glass bottles. The glass bottles were duly sealed in accordance with law and necessary signatures and labels were affixed thereon. One portion of the sample food article was sent for analysis to the Public Analyst and the Public Analyst opined it to be adulterated vide its report dated 23. 2. 2000. On the basis of this report, the complainant prepared case papers for lodging the prosecution against the vendor accused No. 1 and the Partners i. e. accused Nos. 2 to 9 and accused No. 10 Partnership firm, as responsible for producing the sample food article as the offence was committed punishable under Sections 7 and 16 of the Act. After obtaining the sanction, the complaint being criminal Case No. 1163/2000 was lodged before the learned JMFC, Botad. The accused were summoned and on remaining present before the Court, the charge was framed. As the accused denied the charge, they claimed to be tried. The trial commenced. After the evidence of prosecution is over, the same was put to the accused and in the further statement under Section 313 of the Code, the accused have denied the case of the prosecution. The trial Court after perusing the record and proceeding and evidences, came to the conclusion that the prosecution could not prove its case beyond reasonable doubt and therefore, acquitted the accused vide order dated 12. 12. 2003, which is impugned in the present appeal and leave to appeal under Section 378 of the Code. ( 6 ) SHRI Patel, learned APP for the appellant state of Gujarat has submitted that the order of acquittal being contrary to the evidence on record, the same deserves to be quashed and set aside. Shri Patel has submitted that the Director of Central Food laboratory in his certificate has clearly opined that the sample food article was not in consonance with the parameters of the rules, the trial Court ought not to have acquitted the accused on technical grounds. Shri Patel has submitted that the order of trial Court being erroneous and contrary to the evidences on record, the same deserves to be quashed and set aside. Shri Patel has submitted that the order of trial Court being erroneous and contrary to the evidences on record, the same deserves to be quashed and set aside. The order impugned in this Appeal and leave to appeal is unsustainable and therefore, the same deserves to be quashed and set aside. Shri patel has placed on record the relevant papers pertaining to Criminal Case No. 1163 of 2000 and show that the Food Inspector original complainant has supported the version of the prosecution and therefore, the accused could not have been acquitted on technical grounds. Shri Patel has submitted that as the sample food article ground nut oil was found to be adulterated by the director of Central Food Laboratory, the accused deserves to be punished in accordance with law. ( 7 ) SHRI Modi, learned counsel appearing for the respondents original accused has submitted that this being an acquittal appeal, unless and until, it is established by the appellant that the order of acquittal has in fact resulted into miscarriage of justice, no interference is called for under Section 378 of the Code. Shri Modi has submitted that the order of acquittal impugned in this appeal and leave to appeal deserves to be sustained as it could be seen from the relevant papers produced by Shri Patel, learned APP pertaining to Criminal Case no. 1163 of 2000 that there were serious infirmities in the case of the prosecution and the same could not have been brushed aside on dubbing it to be mere technical infirmities. Shri Modi has submitted that the mandatory provision of Rule 14 cannot be said to have been complied with by the prosecution and on that count also, the order impugned deserves to be sustained. Shri Modi has submitted that the Food Inspector in his testimony, has clearly admitted that the wooden box containing the sample bottles had not been sealed. It is incumbent upon the Food Inspector to seal the container, which carries the sample bottles to the public Analyst. Shri Modi has submitted that the prosecution has failed in placing on record any document indicating that the sanctioning authority was duly authorized to accord sanction for lodging the prosecution against the present respondents original accused. It is incumbent upon the Food Inspector to seal the container, which carries the sample bottles to the public Analyst. Shri Modi has submitted that the prosecution has failed in placing on record any document indicating that the sanctioning authority was duly authorized to accord sanction for lodging the prosecution against the present respondents original accused. Shri Modi has submitted that looking to these infirmities, which are incurable and which cannot be brushed aside as technical infirmities, the impugned order deserves to be sustained by refusing the leave to appeal. ( 8 ) THIS Court has heard the learned counsels for the parties at length and perused the papers pertaining to Criminal Case No. 1163 of 2000 produced by Shri Patel, learned app. The trial Court has recorded that the prosecution has not produced any document indicating that the officer, who accorded the sanction for lodging the sanction was duly authorized. The prosecution was duty bound to produce on record the authorization by the competent authority for lodging the prosecution. In absence of any such document, it can well be said that the prosecution has not proved its case beyond doubt that the officer, who accorded the sanction for lodging the prosecution, was duly authorized. Shri Modi has relied upon the decision of this Court (Coram: S. R. Brahmbhatt, J.)in Criminal Appeal No. 56 of 1991 decided on 1. 12. 2006, in that case also, due to want of appropriate notification authorizing the officer to sanction, it was held that the infirmity was incurable and it deals serious blow in the case of the prosecution. ( 9 ) IT also deserves to be noted that the complainant Food Inspector has admitted in his cross-examination that he himself had not cleaned the bottles at the time of collecting the sample. The admission of the complainant Food Inspector, who was merely responsible for collecting the sample and compliance with mandatory provision of Rule 14, would go to show that the prosecution has failed in establishing due compliance with mandatory provision of Rule 14. This Court in case State of Gujarat v. Bhupendra M. Mehta, has clearly held that it is not mere compliance which is sufficient that Rule 14 is complied but the prosecution is duty bound to lead cogent evidence to establish the due compliance with mandatory provisions of Rule 14 of the Rules. This Court in case State of Gujarat v. Bhupendra M. Mehta, has clearly held that it is not mere compliance which is sufficient that Rule 14 is complied but the prosecution is duty bound to lead cogent evidence to establish the due compliance with mandatory provisions of Rule 14 of the Rules. ( 10 ) RULE 17 of the P. F. A. Rules makes it incumbent upon the Food Inspector to send the container of the sample food article to the Public Analyst in a sealed packet. Rule 17 (a) of the Rules deserves to be set out as under. Rule 17: Manner of dispatching containers of samples - The containers of the sample shall be dispatched in the following manner, namely: (a) The sealed container of one part of the sample, for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means; (b ). . . . . . . . . . . . . . . . . . . . . In the instant case, the Food Inspector in his testimony has admitted that the wooden container carrying the sample food article had not been sealed by him. In view of this, it can be said that there is a clear breach of mandatory provision of Rule 17 of the Rules. ( 11 ) SHRI Modi has relied upon the decision of Bombay High Court in case of Suresh raghunath Gupte, Food Inspector v. Taraknath Rajnarayan Mishra and another, in support of his submission that the outer cover in which sample bottles sent is required to be sealed and non-compliance of rule 17 and 18 would vitiate the case of the prosecution. ( 12 ) IN view of these infirmities noticed from the record, it can be said to have dealt serious blow to the entire case of the prosecution. The trial Court has rightly held that the prosecution failed in establishing its case beyond reasonable doubt. The order, impugned, therefore, cannot be said to have resulted into miscarriage of justice nor it can be said that it is unjust and improper in any manner. The leave therefore, deserves to be refused and is accordingly refused. As the leave itself is refused, the appeal shall stand dismissed. Appeal dismissed.