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2008 DIGILAW 543 (GUJ)

Arvindkumar Manilal v. State of Gujarat

2008-12-01

C.K.BUCH

body2008
Judgment C.K. Buch, J.—Heard Mr. S.R. Divetia, learned Counsel appearing for the applicant-accused and Ms. D.S. Pandit, learned APP appearing for the opponent-State. None has appeared for the complainant-opponent No. 2. 2. By means of filing the present Criminal Revision Application, the applicant [original accused] [hereafter to be referred to as “the accused”] has assailed the legality and validity of the order of conviction and sentence passed by the learned Metropolitan Magistrate [Court No. 8], City of Ahmedabad in Criminal Case No. 32 of 1989, whereunder, the accused has been convicted for offence punishable under Section 7 read with Section 16[1][a] of the Prevention of Food Adulteration Act, 1955 [hereafter to be referred to as the “PFA Act”]. Learned trial Judge has imposed fine of Rs. 1,000/- upon the accused and in default of payment of fine, the accused is sentenced to further imprisonment of 15 days. The order of conviction and sentence was challenged by way of an appeal by the accused before the City Sessions Court at Ahmedabad and the order of conviction and sentence passed by the learned trial Judge was confirmed by the learned Additional Sessions Judge [Court No. 14], City of Ahmedabad by judgment and order dated 16.03.1999 while dismissing the Criminal Appeal No. 16/95 filed by the accused. 3. Mr. Divetia has taken me through the findings recorded by both the Courts below as well as relevant part of evidence recorded during the course of the trial. Submission of Mr. Divetia is two fold. First submission is that the order of conviction recorded by the learned trial Judge as confirmed by the learned Additional City Sessions Judge under challenge are erroneous and the accused deserves acquittal on the ground that guilt ought not to have been recorded on the strength of the report of the Central Food Laboratory when the same is based on finding recorded by microscopic examination of chilli powder sent as sample for analysis. Further points are also argued by Mr. Divetia. Further points are also argued by Mr. Divetia. But he has mainly concentrated on this aspect and has submitted that examination of sample of chilli powder only by use of microscope is not valid and scientific test; that the Rules framed under the PFA Act also do not provide for such examination and the finding recorded on the strength of microscopic examination of sample of chilli powder ought not to have been accepted as sufficient evidence against the accused and the accused could have been given benefit of doubt. It is also contended by Mr. Divetia that there is breach of mandatory Rules 14 and 16 of Prevention of Food Adulteration Rules. But it is not a matter of dispute that sample was drawn by the complainant from the accused and the same was initially sent for analysis to the Public Analyst in accordance with law and the Rules framed under the PFA Act. On receipt of finding from the Public Analyst, the accused exercised his privilege and had prayed that sample be sent to the Central Food Laboratory for analysis and both the Courts below obviously were supposed to consider the report of Central Food Laboratory. There was no scope for any of the Court even to read the first report of the Public Analyst. Report of CFL Exhibit 4 shows that; “sample does not conform to the standard of chillies powder laid down in Item A.05.05.01 of PFA Rules [1955] in that sample shows admixture with wheat starch. Test for starch is also positive. Sample is, thus, adulterated.” This finding is based on other findings recorded by the Analyst of CFL Gaziabad. For the purpose of present judgment, the finding recorded in Column No. 6 and 12 are relevant. In Column No. 6, it is recorded that; “Test for presence of starch [Iodine reaction]; positive.” In Col. No.12, it is mentioned that; “Microscopic examination: Sample showed presence of foreign starch identified as wheat starch.” Both the Courts below were supposed to test the evidenciary value of this document Exhibit 4 and have recorded concurrent findings in this regard. 4. Mr. No.12, it is mentioned that; “Microscopic examination: Sample showed presence of foreign starch identified as wheat starch.” Both the Courts below were supposed to test the evidenciary value of this document Exhibit 4 and have recorded concurrent findings in this regard. 4. Mr. Divetia has also placed reliance on the judgment of this Court in the case of State of Gujarat vs. Prajapati Amratlal Natvarlal, reported in 2008 (1) GLR 765 and another judgment in the case of Chimanlal Govindji Thakker vs. State of Gujarat & Anr., reported in 1997 (1) GLR 458 . 5. In the first decision in case of Prajapati Amratlal Natvarlal (Supra) relied upon by Mr. Divetia, it was the case where this Court was evaluating the legal strength in the order of acquittal recorded by the lower Court while appreciating the submissions made on the strength as to use of microscope by Public Anaylist while testing the sample of that case, i.e. turmeric powder. In Para 12.1 of the said judgment, this Court has referred the arguments advanced by the Counsel appearing for the respondent accused. If the submissions recorded in Para 12.1 of the said judgment are considered, it emerges that the decision cited before the Court was in reference to a case where sample of chilli powder was tested by means of only microscopic examination. True it is that only microscopic examination of sample of chilli powder is not sufficient to link the accused with the crime as observed by this Court in second judgment cited by Mr. Divetia in the case of Chimanlal Govindji Thakker (Supra) and other decisions of this Court also. But in the case of the State of Gujarat vs. Prajapati Amratlal Natvarlal (Supra), the Court upheld the order of acquittal of and in Para-13 said that there is nothing illegal in the order of acquittal and it was not even possible for the lower Court to record conclusively that sample does not conform permissible standards as prescribed under the Appendix-B of the Act. Sample of turmeric powder was containing some percentage of starch. Sample of turmeric powder was containing some percentage of starch. Report of CFL was showing presence of starch, but in the category of that sample of turmeric powder, only presence of starch would not make sample adulterated and it is necessary for the prosecution to establish that total starch percentage of wheat is more than 60% and there was no reference as to percentage of starch found present, wheat wise and the Court therefore, decided to uphold the acquittal recorded by the learned trial Judge. Here, in the present case, prescribed standard for chilli powder in Appendix-B of PFA Rules provides thus; A.05.05.01- Chillies and Capsicum [Lal Mirchi] Powder means the powder obtained by grinding clean ripe fruits or pods of Capsicum annum L and Capsicum frutescens L. It shall be free from mould, living and dead insets, insect fragments, rodent contamination. The powder shall be dry, free from dirt, extraneous colouring matter, flavouring matter, mineral oil and other harmful substances. The chilli powder may contain any edible vegetable oil t a maximum limit of 2.0 per cent by weight under a label declaration for the amount and nature of oil used. It shall conform to the following standards:— (i) Moisture Not more than 11.0 per cent by weight (ii) Total ash on dry basis Not more than 8.0 per cent by weight (iii) Ash insoluble in dilute Not more than 1.3 per cent by weight HCL on dry basis (iv) Crude fibra Not more than 30.0 per cent by weight (v) Non-volatile ether Not less than 12.0 per cent by weight extract on dry basis (vi) Salmonella Absent in 25g Keeping in mind the above mentioned standard, presence of starch in the sample would be sufficient to link the accused with the crime and admixture of starch in chilli powder itself is violative of standard fixed. As mentioned earlier, sample was tested by adopting two different methods and the CFL had reached to a conclusion that chilli powder under analysis is admixture with starch. Reading of the judgment of the leaned Additional Sessions Judge, more particularly para-19 thereof makes it clear that the learned Sessions Judge was satisfied that CFL had adopted two different methods; one chemical method for ascertaining presence of starch and the second method by use of microscopic examination. Reading of the judgment of the leaned Additional Sessions Judge, more particularly para-19 thereof makes it clear that the learned Sessions Judge was satisfied that CFL had adopted two different methods; one chemical method for ascertaining presence of starch and the second method by use of microscopic examination. It is rightly observed that microscope was used by the Analyst to ascertain the type of starch used and by using microscope, Scientist was able to reach to a conclusion that starch which was traced during the analysis was wheat starch. So, it will not be possible for the Court to hold that any of the above two judgments relied upon by Mr. Divetia would help the present accused. 6. Rest of the findings recorded by both the lower Courts are concurrent findings and are in accordance with law, Rules as well as documentary evidence led and have been correctly found appreciated. Therefore, it is not possible for this Court to observe that conviction is either bad or illegal and the order of conviction requires to be upheld. 7. Second fold of argument of Mr. Divetia which can be said to be alternative submission is that considering the time gap between the date of institution of proceedings, i.e. criminal complaint against the present accused and the date on which revision application is heard by this Court, this Court, at least, should reduce the substantive punishment imposed. It is also submitted that only time gap is not relevant. Both the Courts below ought to have considered that wheat starch found in sample of chilli powder was not hazardous to human health and no article harmful to human being is found to have been used in the present case and, therefore, minimum punishment ought to have been imposed. The day on which the complaint was filed, the accused was 44 years of age and after 20 years, today, he is 64 years old. Mr. Divetia has also pointed out that this Court had even decided to consider the second submission advanced today when this matter was earlier listed in January, 2007 and therefore, the accused was directed to remain present before the Court on 23.01.2007. Some arguments were also heard, but the Court could not complete the arguments and ultimately, the matter came to be adjourned to 31.01.2007. Some arguments were also heard, but the Court could not complete the arguments and ultimately, the matter came to be adjourned to 31.01.2007. Today, practically after about one year and 11 months, when the Court has undertaken fresh hearing of the revision application, it is submitted by Mr. Divetia that this Court, at least, can be requested to reduce the punishment to the minimum, i.e. of three months. Therefore, according to Mr. Divetia, substantive punishment should be reduced to minimum. 8. There is resistance from Ms D.S. Pandit, learned APP who has submitted that there should not be any reduction in punishment. She has submitted that chilli powder is an article which is in day to day use and if punishment is reduced to three months, then, element of deterrence will disappear. However, she has submitted that if the Court is inclined to reduce the punishment to the minimum, then, at least, fine of Rs. 5,000/- which is maximum be imposed. 9. In view of the above submission, the present revision application can be partly allowed by reducing period of substantive sentence imposed by the learned trial Court as confirmed by the appellate Court from one year to three months by enhancing the amount of fine from Rs. 500/- to Rs. 5000/- [Rupees Five Thousand]. 10. This revision application is dismissed qua order of conviction passed by the learned trial Court as confirmed by the appellate court. However, order of sentence is altered and it is ordered that the accused shall undergo simple imprisonment for three months and pay fine of Rs. 5,000/- [Rupees Five Thousand], failing which, the accused shall undergo further simple imprisonment for one and half months. According to Mr. Divetia, amount of fine of Rs. 500/- has already been paid by the accused. So, remaining amount of fine shall be paid by the accused if he so desires. 11. In view of the date of conviction recorded by the learned trial Judge as confirmed by the Sessions Judge, the accused should be given some reasonable period of time to surrender so that he can manage his family affairs within reasonable period of time. So, remaining amount of fine shall be paid by the accused if he so desires. 11. In view of the date of conviction recorded by the learned trial Judge as confirmed by the Sessions Judge, the accused should be given some reasonable period of time to surrender so that he can manage his family affairs within reasonable period of time. The accused is directed to surrender before the trial Judge on 02.01.2008 to serve substantive sentence of three months and to pay fine increased by the Court if he so desires, failing which, the trial Judge shall be at liberty to issue non-bailable warrant for arrest of the accused so that the accused can be sent to jail to serve the sentence. Order and direction accordingly.