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2007 DIGILAW 67 (GUJ)

VIMALKANT KANCHANLAL TAILOR v. STATE OF GUJARAT

2007-02-02

S.R.BRAHMBHATT

body2007
S. R. BRAHMBHATT, J. ( 1 ) THE applicant food Inspector, Navsari Nagarpalika, navsari has preferred this application under Section 378 (4) of the Code of Criminal procedure, 1973 (hereinafter referred to as the Code for short) seeking leave to appeal challenging the order of acquittal dated 24. 3. 2005 passed by the learned Chief Judicial Magistrate, Navsari in Criminal Case no. 6688 of 1998. ( 2 ) ON 17. 1. 2007, when the matter was listed for hearing as to admission, after hearing the counsel for the applicant, this court has called for the records and proceedings as the entire case is hinging upon the date in respect of serving the notice under section 13 (2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act for short) had not been served, then, no useful purpose would be served even if the leave to appeal and appeal is admitted. Accordingly the matter was kept today. Records and proceedings have been received and this Court has perused the same. ( 3 ) HEARD learned counsel for the applicant at length. ( 4 ) THE facts in brief to preferring this application for leave to appeal and appeal deserve to be set out as under. ( 5 ) THE original complainant Food Inspector while discharging his duties as such in the jurisdiction of Navsari, intercepted the milk vendor cyclist on 21st July, 1997 at 8. 30 hrs in the morning and inquired as to what was he is selling. He replied that he was selling cow milk. The cyclist was the accused, who said that he was selling the cow milk. The Food Inspector summoned the panch witnesses and in his presence issued notice to the accused milk vendor, notifying his intention to collect the sample of cow milk for analysis and obtained his thumb impression on the said notice. The office copy of the said notice is produced at Ex. 46. After issuing such notice under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rule for short) in Form VI, the Food Inspector original complainant purchased 750 grams of cow milk on payment of Rs. 6. 75 ps to the vendor and obtained receipt thereof. The receipt is at Ex. 47. 46. After issuing such notice under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rule for short) in Form VI, the Food Inspector original complainant purchased 750 grams of cow milk on payment of Rs. 6. 75 ps to the vendor and obtained receipt thereof. The receipt is at Ex. 47. The sample food article was thereafter divided into three equal parts in clean, ordourless, dried glass bottles and after adding the requisite preservative formalin, the bottles were sealed in accordance with law in presence of the panch and the requisite labels were labeled in accordance with law. The entire process of collecting the milk and sealing the milk sample were carried out in presence of panch and panchnama was drawn. The panch witnesses have signed the panchnama. The food Inspector has identified the signatures of the panch witnesses, which is marked as 39/8. The Food Inspector, thereafter sent the sample food article to the Public Analyst, rajkot and also sent memorandum in Form no. 7 and specimen copy of seal used to seal the bottle separately as required under law. The office copy of the memorandum is at ex. 48. The seal impression is at Ex. 49. The office copy of the forwarding letter to the public Analyst is at Ex. 50. The Public Analyst opined that the sample food article of cow milk was adulterated as it did not fulfill the parameters prescribed under the pfa Rules of cow milk. The proportion of fat and solid not fat were prescribed for cow milk and on this account, the sample food article was declared to be adulterated by the public Analyst in its report dated 21st August, 1997, which is produced at Ex. 58. The food Inspector, thereafter, prepared necessary papers for sanction of the Local Health authority to lodge prosecution against the accused as the offence was committed by the respondent under Section 7 and 16 of the act. The concerned authority accorded the sanction and thereafter, the Food Inspector lodged complaint being Criminal Case no. 6688 of 1998 against the respondent original accused. The accused were summoned. As the accused denied the charge, he claimed to be tried. The trial commenced. The concerned authority accorded the sanction and thereafter, the Food Inspector lodged complaint being Criminal Case no. 6688 of 1998 against the respondent original accused. The accused were summoned. As the accused denied the charge, he 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 has denied the case of the prosecution. The trial Court after perusing the record and proceeding and evidences has found serious contradictions and anomalies in the testimony of the Food Inspector, especially in respect of service of notice under section 13 (2) of the Act upon the accused. This contradiction and anomalies in respect of service of notice have been viewed seriously, amount to non-service of the notice or rather lack of appropriate proof of serving notice under Section 13 (2) of the Act and therefore, on this ground along with others, acquitted the accused vide impugned order dated 24th March, 2005, which is impugned in this application seeking leave to appeal. ( 6 ) THIS being an acquittal appeal, unless and until it is established by the applicant 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 and sustaining of the same would amount to perpetuate the same. In absence of such plea, the order of acquittal need not be interfered with and or reversed under Section 378 of the Code. Bearing the aforesaid proposition of law in mind, this court is called upon to examine the records and proceedings before granting leave to appeal challenging the order of acquittal. ( 7 ) THIS Court has perused the records and proceedings and heard the learned counsel for the appellant at length. The following emerge from the perusal of the record. ( 8 ) THE Food Inspector original complainant appears to have collected the sample food article from the accused when he was passing by on 21st July, 1997 in the morning at 8. 30 hrs. ( 9 ) THE complainant appears to have issued notice under Rule 12 in Form VI to the accused on 21st July, 1997 at 8. 30 hrs. in the morning. 30 hrs. ( 9 ) THE complainant appears to have issued notice under Rule 12 in Form VI to the accused on 21st July, 1997 at 8. 30 hrs. in the morning. The said notice has also been signed by the panch witnesses and it bears the thumb impression of the accused. ( 10 ) THE receipt of money is at Ex. 49, which also bears the thumb impression of the accused, which shows that the milk was purchased on 21st July, 1997. The memorandum at Ex. 48 in Form VII under Rule 17 also indicates the date of collection of sample was 21st July, 1997. ( 11 ) IT deserves to be noted that the receipt issued by the Public Analyst dated 4th august 1997 appears to have been issued in respect of three samples received by the public Analyst from the Food Inspector Shri v. K. Tailor i. e. 6/1997, 7/1997 and 8/1997. All the three samples appear to have been received by the Public Analyst on 21st July, 1997. The said receipt is at Ex. 54. The communication to the Local Health Authority is at Ex. 55 by Food Inspector indicating him that the sample food article was collected on 21st July, 1997. The receipt is at Ex. 56 issued by Local Health Authority about receiving the samples, also indicate that the food Inspector collected the sample on 21st july, 1997 bearing Serial No. 7/1997. ( 12 ) THE letter by the Local Health Authority to the Food Inspector dated 28th august 1997 also indicates that the sample was collected on 21st July, 1997, which was declared to be adulterated by the Public analyst in his report dated 21st August, 1997. ( 13 ) THE report of the Public Analyst dated 21st August, 1997 is at Ex. 58, which has not disclosed the date of collection of sample but it discloses that the cow milk was not confirming to the standards and provisions laid down under the PFA Rules, 1955. This report is at Ex. 58 and the details of sample is produced at Ex. 59, which discloses that the sample was collected on 21st July, 1997. ( 14 ) THE request by the Food Inspector dated 3. 9. 1997 for obtaining sanction for lodging the prosecution is at Ex. 69. ( 15 ) THE letter dated 18. 9. This report is at Ex. 58 and the details of sample is produced at Ex. 59, which discloses that the sample was collected on 21st July, 1997. ( 14 ) THE request by the Food Inspector dated 3. 9. 1997 for obtaining sanction for lodging the prosecution is at Ex. 69. ( 15 ) THE letter dated 18. 9. 1998 addressed by the Food Inspector to Local Health authority is an intimation that the complaint being Criminal Case No. 6688 of 1998 was filed on 18th September 1998 and the requisite notice under Section 13 (2) of the Act be served upon the accused along with copy of the report of Public Analyst, which is produced at Ex. 69. ( 16 ) THE letter at Ex. 70 is a letter issued by the Commissioner of Local Health Authority, Valsad to Shri V. K. Tailor, Food inspector requesting him that the notice under Section 13 (2) of the Act had been returned by the postal department with an endorsement that addressee was not found. Therefore, the Food Inspector was requested to serve the notice vide letter dated 6th October 1998. The said letter is at Ex. 70. ( 17 ) THE Food Inspector has produced one letter at Ex. 71 appears to be an office copy of the notice dated 19th September 1999 purported to have been served upon the accused on 30th September 1998. It deserves to be noted hear that earlier document at ex. 70, wherein, the Food Inspector was requested to serve the notice under Section 13 (2) of the Act is dated 6th October 1998 and therefore, the Food Inspector could not have served the copy of the notice earlier to that i. e. on 30th September 1998, as it is clearly mentioned on the bottom portion of the document at Ex. 71. ( 18 ) IT also deserves to be noted that notice dated 19th September 1998 purported to have been issued under Section 13 (2) of the Act. The said notice is issued in respect of the sample food article collected by Shri v. K. Tailor, Food Inspector on 19th July 1997 where in this document at Ex. 71, after the collection of sample is shown to be 21st July, 1997. The said notice is issued in respect of the sample food article collected by Shri v. K. Tailor, Food Inspector on 19th July 1997 where in this document at Ex. 71, after the collection of sample is shown to be 21st July, 1997. It deserves to be noted that in fact the Food Inspector had collected three samples, which is clear from the receipt issued by the Public Analyst on 25th july, 1997. ( 19 ) THE Food Inspector in his cross-examination could not explain though specifically confronted with this anomaly of the testimony and the anomaly which was also evident on the record at Ex. 70 and 71. This anomaly caste serious doubt about the case of the prosecution, that notice, which is mandatory to be served upon the accused under Section 13 (2) of the Act, had ever been served upon the accused as asserted by the prosecution. ( 20 ) AGAINST these backdrop, the order of acquittal, which is sought to be impugned by obtaining leave deserves to be viewed. ( 21 ) THE trial Court has elaborately noted the anomaly and observed that the prosecution had failed in proving beyond doubt due compliance with mandatory provisions of the Rule. The order of acquittal appears to be just and proper and the anomalies narrated hereinabove, appear to have dealt serious blow to the case of the prosecution. No useful purpose is likely to be served by granting leave for preferring an appeal challenging the order of acquittal, which is absolutely just and proper and which does not call for any interference under Section 378 of the Code. ( 22 ) IN view of aforesaid facts and circumstances of the case, this Court is of the considered view that leave to appeal itself deserves to be refused as the judgment impugned cannot be said to be erroneous and has resulted into miscarriage of justice nor it can be said that it is unjust and improper in any manner. As the judgment impugned does not call for any interference under Section 378 of the Code, the leave deserves to be refused and is accordingly refused. As the leave itself is refused, the appeal shall stand dismissed. The office is directed to send forthwith the record and proceedings to the trial Court.