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2010 DIGILAW 78 (GUJ)

Sanjay Ratilal Shah v. State of Gujarat

2010-02-17

J.C.UPADHYAYA

body2010
JUDGMENT : J.C. Upadhyaya, J. Feeling aggrieved and dissatisfied with the impugned judgment and order rendered by learned Additional Sessions Judge, Panchmahals at Godhra on 13.6.2000 in Criminal Appeal No.22 of 1995 whereby the learned Additional Sessions Judge while dismissing the appeal upheld the judgment and order of conviction rendered by learned Judicial Magistrate First Class, Lunavada on 7.6.1995 in Criminal Case No.254 of 1987 whereby the applicant who was original accused in said criminal case came to be convicted for the offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act ('PFA Act', for short) and was sentenced to undergo R.I for two years and fine of Rs. 3000/- and in default of payment of fine, R.I for six months, the applicant - original accused has challenged the legality and validity of his conviction by preferring this revision application under Section 397 read with Section 401 of the Criminal Procedure Code. 2. The prosecution case in nutshell is that Food Inspector ('FI', for short) Mr.K.A.Patel visited the shop of the applicant - accused on dated 22.1.1987 situated at Shahera town. The FI collected sample of turmeric powder, and when the sample was analysed by the Chemical Analyser, it was revealed that the sample was not in confirmity with the standards laid down under the Prevention of Food Adulteration Rules ('PFA Rules', for short). It was also revealed that the applicant - original accused No.1 was found present in the shop when the sample was collected by the FI and the owner of the shop was original accused No.2 Ratilal Chandulal Shah. That the sanction was accorded by the competent authority to launch criminal prosecution against both the accused, namely, the applicant - original accused No.1 and co-accused No.2 Ratilal Chandulal Shah. Accordingly, complaint was filed against both the accused in the Court of learned JMFC, Lunavada by the FI, which was registered as Criminal Case No.254 of 1987. Initially, the trial Court framed charge at Exh.90, to which the accused did not plead guilty. Thereafter, vide order below application, Exh.111, the charge came to be amended on 31.5.1995 and the accused did not plead guilty to the amended charge as well. Initially, the trial Court framed charge at Exh.90, to which the accused did not plead guilty. Thereafter, vide order below application, Exh.111, the charge came to be amended on 31.5.1995 and the accused did not plead guilty to the amended charge as well. Considering the evidence on record and the submissions made on behalf of both the sides, the trial Court recorded conviction of the applicant - original accused No.1 for the offence punishable under Section 16 read with Section 7 of the PFA Act and recorded acquittal of original accused No. 2 Ratilal Chandulal Shah, owner of the shop. The original accused No.1 who came to be convicted by the trial Court challenged his conviction by preferring Criminal Appeal No.22 of 1995 in Sessions Court, Panchmahals at Godhra and the learned Additional Sessions Judge vide judgment and order dated 13.6.2000 dismissed the appeal and confirmed the conviction and sentence recorded by the trial Court. 3. I have heard the learned advocate, Mr. Y.M. Thakkar, for the applicant - original accused No.1 and learned A.P.P., Mr. Sejpal, for the respondent State. 4. Learned advocate, Mr.Thakkar, for the applicant submitted that as per the prosecution case, at the time when the sample of turmeric powder was collected, at that time, applicant - original accused No.1 Sanjay was present and in his presence the sample was collected by the FI. The original accused No.2 Ratilal Chandhlal Shah was arraigned as co-accused on the ground that he was owner of the shop. It is submitted that if the charge, Exh.90 is considered, it is stated in the charge that at the time when the sample was collected by the FI from the shop, at that time, original accused No.2 Ratilal Chandulal Shah was present, and in his presence, sample was lifted. It is submitted that thereafter the trial Court recorded evidence adduced by the prosecution. After the prosecution concluded its evidence, the trial Court recorded further statements of both the accused under Section 313 of the Criminal Procedure Code and when the criminal case was posted for pronouncement of judgment, at that time on behalf of the complainant, an application, Exh.111 was presented before the trial Court for alteration of charge to the effect that the charge should be read that at the time when the sample was lifted, accused No.1 Sanjay was present. The said application came to be allowed on dated 31.5.1995. It is submitted that thus, the material alteration was made in the charge by the trial Court wherein the alleged main accused was treated as abettor and the alleged abettor was treated as main accused. My attention was drawn to sub- Section 4 of Section 216 of the Criminal Procedure Code and submitted that in such situation, the trial Court should have directed trial afresh and, thereafter, the judgment should have been pronounced. 4.1 Learned advocate, Mr.Thakkar, for the applicant - accused No.1 submitted that considering the evidence of FI, it is quite clear that there is outright violation of Rule 14 of the PFA Rules, in the sense that no evidence is adduced by the FI as to who, how and when the glass jars wherein turmeric powder was collected for the purpose of sample were cleaned and dried. It is, therefore, submitted that the non-compliance of mandatory provisions contained under Rule 14 would be sufficient enough to acquit the applicant - accused. 4.2 Learned advocate, Mr.Thakkar, for the applicant - accused further submitted that considering the evidence of FI and the relevant provisions of the PFA Rules, it is clear that the FI was not possessing requisite qualification. 4.3 Ultimately, it is submitted that the revision application may be allowed and the impugned judgments rendered by the trial Court and by the first Appellate Court be set-aside and the applicant - original accused No.1 be acquitted of all the charges levelled against him. 5. Learned A.P.P., Mr.Sejpal, for the respondent State vehemently opposed this appeal. It is submitted that the powers vested in this Court under Section 397 read with Section 401 of the Criminal Procedure Code are very limited. In the instant case, there is a concurrent finding of two subordinate Courts to the effect that all the mandatory requirements laid down under the PFA Act and the PFA Rules have been duly and fully complied with. It is, therefore, submitted that the contentions raised on behalf of the applicant about non-compliance of mandatory requirements, is not required to be considered. 5.1 Learned A.P.P., Mr.Sejpal, for the respondent - State further submitted that in this case, after the charge was altered by the trial Court, none of the accused requested the trial Court to permit further cross-examination of any of the witnesses examined by the prosecution. 5.1 Learned A.P.P., Mr.Sejpal, for the respondent - State further submitted that in this case, after the charge was altered by the trial Court, none of the accused requested the trial Court to permit further cross-examination of any of the witnesses examined by the prosecution. That, therefore, the trial Court cannot be said to have committed any irregularity which would vitiate the proceedings. 5.2 Ultimately, it is submitted that the revision application may be dismissed. 6. I have examined the record and proceedings in context with the submissions made by the rival sides. 7. At the outset, it is required to be considered that the prosecution case, as it stood, was to the effect that at the time when the FI lifted sample of turmeric powder, at that time, applicant - original accused No.1 Sanjay was present in the shop and the shop was owned by original accused No.2 Ratilal Chandulal Shah. In the aforesaid background, if the initial charge framed by the trial Court at Exh.90 is considered, the situation seems to be otherwise, in the sense that, the original accused No.2 Ratilal was described as the person who was present in the shop at the time when the FI lifted the sample. On the basis of such charge, the entire oral and documentary evidence was adduced by the prosecution and the trial Court recorded further statements of both the accused under Section 313 of the Criminal Procedure Code When the trial Court posted the criminal case for pronouncement of judgment, on behalf of the complainant FI, an application was tendered before the trial Court at Exh.111 for alteration of charge, requesting that the charge may be altered to the effect that at the time when the sample was lifted by the FI, accused No.1 Sanjay was present. It appears that said application came to be allowed by the trial Court on dated 31.5.1995. However, it is true that both the accused were asked as to whether they pleaded guilty to the altered charge or not and none of them pleaded guilty. Thereafter, the trial Court rendered the impugned judgment and order recording the conviction of the applicant - accused No.1 dated 7.6.1995. 8. However, it is true that both the accused were asked as to whether they pleaded guilty to the altered charge or not and none of them pleaded guilty. Thereafter, the trial Court rendered the impugned judgment and order recording the conviction of the applicant - accused No.1 dated 7.6.1995. 8. In this respect, considering Section 216 of the Criminal Procedure Code, it is true that the powers are given to the Courts to alter or add to any charge at any time before judgment is pronounced. However, considering sub-Section 4 of Section 216 of the Criminal Procedure Code, if the alteration or addition to the charge is such, which would prejudice the accused, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. As provided under Section 217 of the Criminal Procedure Code, whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed to recall witnesses. Thus, in the instant case, considering sub-Section 4 of Section 216 read with Section 217 of the Criminal Procedure Code, there seems to be justification in the submission made by the learned advocate Mr.Thakkar for the applicant - original accused No.1 that great prejudice was caused to the applicant - original accused No.1 when the charge was altered and by way of the alteration, the role attributed to individual accused in the initial charge came to be changed. 9. Over and above this, if the evidence of FI is considered, it transpires that according to him, sample of turmeric powder came to be collected in three clean and dried glass jars. In his cross-examination, he stated that at the time when he visited the shop, the jars were carried by him. In this connection, learned advocate Mr.Thakkar for the applicant - accused relied upon a case of State of Gujarat v. Bhupendra N. Mehta reported in 2000 (1) GLH 679. Perusing the fact of the said case, it appears that there was no specific evidence about sample bottles were dried and cleaned. In that case, FI in his evidence stated that the sample was poured in three dry and clean bottles. Perusing the fact of the said case, it appears that there was no specific evidence about sample bottles were dried and cleaned. In that case, FI in his evidence stated that the sample was poured in three dry and clean bottles. This Court observed that this cannot be said to be due compliance of Rule 14 of the PFA Rules and came to the conclusion that no specific evidence about the sample bottles being dry and clean was adduced. 9.1 Reliance was placed upon a case of C.D. Patel, Food Inspector v. Popatlal jivaji Thakor reported in 2005 (1) FAC 46. In a case arising under the PFA Act, this Court observed that there was no evidence to come to the conclusion that the sample bottles were cleaned at the time when the sample was collected therein. It was held that thus, there was a breach of mandatory requirement laid down under Rule 14 of the PFA Rules and the acquittal order rendered by the trial Court came to be confirmed. About Rule 14 of the PFA Rules, similar observation was made in the case of State of Gujarat thro' S.S. Patel, Food Inspector v. Shyamal Tolaram Kourani decided on 19.5.2009 in Criminal Misc. Application No. 16203 of 2008 in Criminal Appeal No.3036 of 2008 by this Court. In the case of Sudhir Chandra B.Joshi, Food Inspector, Baroda v. Arvindkumar Naranbhai Patel and Ors. reported in 1995 (2) GLH (U.J.24) 24, this Court about compliance of Rule 14 of the PFA Rules held that a duty is cast on prosecution not only to comply with mandatory provision, but to lead evidence at the trial for its compliance. 10. In light of the above discussions, I am of the opinion that in the instant case, there is non-compliance of mandatory requirements laid down under the PFA Rules. When such is the situation, I do not find any necessity to consider other contentions raised on behalf of the applicant regarding qualification of the FI etc. 11. In the result, in light of the above discussions, I am of the opinion that the revision application deserves to be allowed and the impugned judgment rendered by the trial Court which came to be confirmed by the first Appellate Court deserves to be set-aside. 12. For the foregoing reasons, the revision application is allowed. 11. In the result, in light of the above discussions, I am of the opinion that the revision application deserves to be allowed and the impugned judgment rendered by the trial Court which came to be confirmed by the first Appellate Court deserves to be set-aside. 12. For the foregoing reasons, the revision application is allowed. The impugned judgment and order rendered by the learned Additional Sessions Judge, Panchmahals at Godhra on dated 13.6.2000 in Criminal Appeal No.22 of 1995 whereby the judgment and order recording conviction of the applicant - original accused No.1 Sanjay Ratilal Shah by learned Judicial Magistrate First Class, Lunavada on dated 7.6.1995 for the offence punishable under Section 16 read with 7 of the PFA Act and the sentence awarded to the applicant thereunder came to be confirmed by the learned Additional Sessions Judge, Panchmahals at Godhra in the aforesaid criminal appeal are set-aside. The applicant Sanjay Ratilal Shah is acquitted of the charges levelled against him. Fine, if paid, be refunded to him. His bail bond shall stand cancelled. Rule is made absolute accordingly. Revision application allowed.