Research › Search › Judgment

Gujarat High Court · body

2007 DIGILAW 70 (GUJ)

STATE OF GUJARAT v. ASHOK MULJI LAKHANI

2007-02-05

S.R.BRAHMBHATT

body2007
S. R. BRAHMBHATT, J. ( 1 ) THE applicant State of Gujarat has preferred this application under Section 5 of the Limitation Act seeking condonation of 22 days delay occurred in preferring the Criminal Appeal no. 209 of 2003 filed under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for short)challenging the order of acquittal dated 30. 10. 2002 passed by the learned JMFC, dwarka in Criminal Case No. 1189 of 1986 acquitting the accused original respondents of the charges 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 was called upon to call upon to make submissions in respect of merit of the appeal also. Learned app has produced on record the copy of the relevant papers pertaining to Criminal Case no. 1189 of 1986 and advanced his submissions at length on merit of the acquittal appeal. ( 3 ) THE facts in brief leading to filing this delay condonation application, leave to appeal and appeal challenging the order of acquittal deserve to be set out as under. ( 4 ) THE complainant Food Inspector s predecessor Food Inspector Shri Chaudhari visited the shop of accused along with helper on 3. 6. 1985 at 17. 00 hrs. After introducing himself as such and after notifying his intention to collect the sample food article as required under Rule 12 of the Prevention of food Adulteration Rules, 1955 (hereinafter referred to as the Rules for short) in Form vi, he purchased 660 grams of milk from the respondents original accused. It is required to be noted here that the accused No. 1 was a vendor. Accused No. 2 was a Partner in accused No. 3 firm Aaradhna Hotel and milk collected was actually collected for being used for preparing tea, coffee and other milk items: It is not the say of the complainant that milk was kept for being sold as such to the customers. The sample of milk was thereafter divided into three equal parts and collected into three ordourless, transparent, clean glass bottles after adding 18 drops prescribed formalin preservative. The bottles were sealed in accordance with law. The requisite labels were pasted on the bottles and the panchnama was drawn. The sample of milk was thereafter divided into three equal parts and collected into three ordourless, transparent, clean glass bottles after adding 18 drops prescribed formalin preservative. The bottles were sealed in accordance with law. The requisite labels were pasted on the bottles and the panchnama was drawn. One portion of the sample food article was sent to the Public Analyst for analysis and remaining parts of sample were sent to the Local Health Authority as required under law. The Public Analyst and local Health Authority received the samples in sealed condition and they issued the respective acknowledgment that they received the sample from the Food inspector. As the Food Article in question was opined to be not in conformity with the standards prescribed under the PFA Rules, necessary papers were prepared and put up to the Local Health Authority for obtaining requisite sanction for lodging the prosecution against the respondents original accused for commission of offence punishable under Section 7 and 16 of the PFA Act. On receipt of the sanction, the complaint came to be filed, which came to be registered as criminal Case No. 1189 of 1986. It may be noted that the complaint was required to be filed by the successor of the original Food inspector, who is responsible for collecting the sample, as the sample was transferred. The accused pleased not guilty and claimed to be tried. The case of the prosecution was put to the accused, who denied and after analysis of the evidences, the trial Court came to the conclusion that the prosecution did not prove its case beyond reasonable doubt and therefore, acquitted the original accused present respondents of charge of commission of offences under Section 7 and 16 of the Act. The said order of acquittal is impugned in the present proceedings. ( 5 ) SHRI Patel, learned APP has submitted that the order of acquittal is erroneous, contrary to the evidence on record and therefore, deserves to be quashed and set aside. Shri Patel has submitted that the food Inspector, who was responsible for collecting the sample, has in fact, stated unequivocally before the trial Court in his testimony that there was a complete compliance with mandatory provisions of Act and Rules and the requisite preservative formalin was also added before the bottles carrying sample were sealed. Shri Patel has submitted that the food Inspector, who was responsible for collecting the sample, has in fact, stated unequivocally before the trial Court in his testimony that there was a complete compliance with mandatory provisions of Act and Rules and the requisite preservative formalin was also added before the bottles carrying sample were sealed. The addition of formalin itself would show that sample article in question was fit for analysis. Shri patel has also invited this Court s attention to the report of the Public Analyst, wherein also, he has stated that sample was fit for analysis. In view of this, the time taken in preferring the complaint in itself cannot be said to be so gross as to adversely affect the case of the prosecution when a serious offence of adulteration affecting the entire society was committed by the accused. Shri patel has submitted that the complaint was in fact filed after a period of 1 year and few months after collecting the sample but that itself cannot be said to be a factor vitiating the case of the prosecution so as to acquit the accused. Shri Patel has also submitted that the acquittal order is erroneous, perverse and contrary to the facts on record, the same deserves to be quashed and set aside and the leave be granted and appeal be admitted. ( 6 ) THIS Court is unable to accept the submission of Shri Patel. Perusal of the papers submitted by Shri Patel pertaining to Criminal Case No. 1189 of 1986 and the order of acquittal, indicate the following: 1. That the accused No. 1 was a vendor. Accused No. 2 is said to have been Partner but no document indicating the partnership of accused no. 2 was brought on record. Accused No. 3 is a firm and hotel run in the name of Aaradhna Hotel. 2. The sample of milk was not being sold in the hotel to the customer. The sample milk was kept to be used as an ingredient in preparation of the final food article namely tea, coffee etc. 3. The evidence on record did not suggest that the sample of milk was collected from the milk kept in the hotel for directly selling to the customers. 4. The sample was collected on 3. 6. 1985. 5. The sample was received by the public Analyst on 7. 6. 1985. 6. 3. The evidence on record did not suggest that the sample of milk was collected from the milk kept in the hotel for directly selling to the customers. 4. The sample was collected on 3. 6. 1985. 5. The sample was received by the public Analyst on 7. 6. 1985. 6. The Public Analyst in his report has stated that the sample was deficient as it did not have the minimum contents of fat, which was of 5. 9. The sample was otherwise having no deficiency in any other parameter. It deserves to be noted that milk solids not fat was reported to be 11. 0%, whereas the minimum is prescribed as 9. 0%. Thus, the milk solids not fat was more than the required minimum prescribed under the rules. The Public Analyst appears to have examined the milk in question on 18. 6. 1986. ( 7 ) THE sanction for lodging the prosecution appears to be issued on 23. 6. 1986. ( 8 ) THE complaint appears to have been lodged on 19. 9. 1986. Thus, the complaint came to be lodged after a period of 1 year and 3 months from the date of collecting the sample food article. ( 9 ) THERE appears to be no cogent evidence adduced by the prosecution indicating as to in what condition the sample food article was preserved either by the Local Health authority or by the Food Inspector or by the public Analyst. In other words, the prosecution has failed in establishing beyond doubt that the sample food article for all these long time was preserved in a refrigerated condition. ( 10 ) THE Food Inspector, responsible for collecting the Food Sample has admitted in his testimony that the vessel used for collecting the sample food article i. e. Milk, in the first instance from the quantity preserved in the accused shop, was carried by him from his office. The glass bottles used for collecting the sample were also issued to him by his office but there is no evidence indicating clearly that the vessel employed in the entire process were scrumptiously cleaned and dried as required under provisions 14 of the PFA Rules. Against these backdrop, the order of acquittal impugned in this appeal and leave to appeal deserve to be viewed. Against these backdrop, the order of acquittal impugned in this appeal and leave to appeal deserve to be viewed. ( 11 ) THE sample food was admittedly that of milk, which was not being sold directly to the customers and it was merely used as an ingredients for preparing the other items like tea, coffee etc. The prosecution has not, proved beyond doubt that the milk was collected from the quantity of milk, which was meant to be directly sold to the customers on the contrary it has come out on record that the milk was being used for preparing the other items to be served to the customers. In view of this, the possibility of collecting the sample food article of milk, which was" under process of being used for making tea, coffee etc. , cannot be ruled out. ( 12 ) IT is also important to note that the solid not fat is found to be more than the minimum required. The milk is found to be deficient only in respect of fat. The milk when it was under the process of being used for making tea or coffee naturally would have ingredients, which was offered to the customer for direct consumption. ( 13 ) IT deserves to be noted that time and again the Apex Court and this Court has observed unequivocally that any milk product looses its natural strength after a period of 4 to 5 months if it is not preserved in a refrigerated condition. In the instant case, the prosecution has not led any evidence to show that the food article in question was preserved in a refrigerated condition. ( 14 ) THE PFA Act confers the valuable right upon the accused to avail an opportunity of having the remaining part of the sample food article tested at Central Food laboratory after receiving the notice under section 13 (2) of the Act. The notice under section 13 (2) of the Act is issued only after the complaint is lodged as the requisite application for sending the remaining part of sample food article to the Central Food laboratory is to be made to the concerned court, where the complaint is filed. The notice under section 13 (2) of the Act is issued only after the complaint is lodged as the requisite application for sending the remaining part of sample food article to the Central Food laboratory is to be made to the concerned court, where the complaint is filed. In the instant case, looking to the tenure i. e. about 1 year and 3 months, the valuable right under Section 13 (2) was rendered futile and therefore, on this count also, the case of the prosecution stood vitiated. ( 15 ) IT also deserve to be noted that the prosecution has failed in proving compliance with provision of Rule 14 in respect of using the clean vessel for collecting the samples. In absence of any cogent evidence for showing due compliance with Rule 14 of the Rules, it can be said that order of acquittal does not call for any interference even on this count also. ( 16 ) IN view of the aforesaid discussion, when the order impugned in the appeal and leave to appeal does not suffer from any infirmity, no useful purpose is going to be served by condoning delay. Before condoning delay, the respondents are required to be heard and no useful purpose is going to be served to answer the delay condonation application when the order impugned itself is just and proper. The delay, though, explained properly, does not deserve to be condoned when the appeal itself is having no merits. In the result, this Court is not inclined to accept the application and accordingly, the application for condonation of delay is dismissed. Appeal dismissed.