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2011 DIGILAW 793 (GUJ)

Keshubhai Ranabhai Tukadiya v. State of Gujarat

2011-11-23

A.J.DESAI

body2011
JUDGMENT : A.J. DESAI, J. 1. The present Criminal Revision Application has been preferred by the petitioner original accused under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code" for short), challenging the legality and validity of the judgment and order rendered by the learned Sessions Court, Porbandar, in Criminal Appeal No. 10 of 1999, on 30th November, 2007, whereby the learned Sessions Judge while dismissing the said Appeal, upheld the judgment and order recording the conviction of the petitioner, rendered by learned Judicial Magistrate, First Class, Porbandar, in Criminal Case No.13786 of 1995, on 15.5.1999. The learned Judicial Magistrate, First Class, by judgment and order rendered on 15.5.1999, recorded the conviction of the petitioner, who was original accused therein, for the offence punishable under Sections 7 (1) and 16 of the Prevention of Food Adulteration Act, 1954 (as the "Act" for short) and was sentenced to undergo simple imprisonment of six months and to pay fine of Rs. 1,000/- and in default of payment of fine, simple imprisonment for one month. 2. It is the case of the prosecution that the respondent Not-Food Inspector, who was original complainant before the Trial Court, visited the dairy of the petitioner- accused on 02.8.1995 at about 11.45 a.m and collected sample of buffalo milk. The same was forwarded to the Public Analyst, Vadodara. The opinion of the Public Analyst was that the class of milk has not been mentioned. The sample does not con- form the standard of buffalo milk laid down in the Prevention of Food Adulteration Rules, 1955 and that milk fat and milk solid not fat are less than the minimum prescribed limits and, thus, it was reported that the same was adulterated. 3. After obtaining necessary sanction for the purpose of launching prosecution, the respondent No.2 - Food Inspector, filed a Criminal Complaint in the Court of learned Judicial Magistrate, First Class, Porbandar, which was registered as Criminal Case No. 13786 of 1995. Since the petitioner-accused did not plead guilty, the prosecution adduced its oral and documentary evidence. 3. After obtaining necessary sanction for the purpose of launching prosecution, the respondent No.2 - Food Inspector, filed a Criminal Complaint in the Court of learned Judicial Magistrate, First Class, Porbandar, which was registered as Criminal Case No. 13786 of 1995. Since the petitioner-accused did not plead guilty, the prosecution adduced its oral and documentary evidence. After considering the evidence on record and the submissions made on behalf of both the sides, the learned Judicial Magistrate, First Class, Porbandar, recorded the conviction of the petitioner-accused for the offence punishable under Sections 7(1) and 16 of the Act and awarded the sentence as mentioned here-in-above in this judgment. 4. The petitioner challenged his conviction by preferring Criminal Appeal No.10 of 1999 in the Court of learned Sessions Judge, Porbandar. The learned Sessions Judge, Porbandar, after hearing both the sides, dismissed the appeal and confirmed the conviction and sentence awarded by the Trial Court to the petitioner - accused. This has given rise to filing of the present Revision Application. 5. I have heard Mr. Rajesh K. Savjani, learned Advocate for the petitioner and Ms. Chetna Shah, learned A.P.P. for the respondents. 6. Learned Advocate Mr. Savjani for the petitioner has firstly taken this court through the deposition of PW-1, complainant - Jatinkumar Harjivandas Shah, who was the Food Inspector at Junagadh, examined at Exhibit-23. He has stated in his chief-examination that the samples were taken by him in three clean and dried bottles and the same were properly sealed and addressed as per the provisions contained under Rule 14 of the Rules. However, in para-28 of his cross-examination, he has admitted that he is not aware that on what date he had collected those three bottles from the person who keep them in the office. He has further deposed that it is the Helper who cleans the bottles in which the samples are required to be taken when, ever such situation arises. Learned Advocate for the petitioner has further taken this Court through the deposition of PW-3 Exhibit-52 one Nagjibhai Bhikhabhai, who was the Helper of the complainant - Food Inspector, who helped him in collecting the samples. This witness deposed that he was present along with the complainant - Food Inspector when the samples were taken and helped him in sealing, fastening, dispatching, etc. of samples. This witness deposed that he was present along with the complainant - Food Inspector when the samples were taken and helped him in sealing, fastening, dispatching, etc. of samples. He has also stated in his examination-in-chief that the bottles in which the samples were taken, were clean, dried and without any smell. He has further deposed that in the Office of the Food Inspector, there were four Helpers. He has also deposed that whenever they receive the bottles from the Laboratory, they immediately clean the bottles and keep in a safe place. He has also deposed that he was not aware that when and by whom the bottles were cleaned and he did not remember that who had cleaned the same. 6.1. Mr Savjani, learned Advocate for the petitioner, therefore, submitted that when the witnesses are not aware about the cleanliness or dryness of the samples, there is a clear violation of mandatory requirements laid down under the Prevention of Food Adulteration Rules, 1955. It is, therefore, contended that the Food Inspector has committed breach of the provisions of Rule 14 of the Rules. He has also placed reliance on certain decisions in support of his contention, namely, (i) in the case of Corporation of the City of Nagpur vs. Neetam Manikrao Kature & Ors., as 1998 SCC (Cri) 564; (ii) in the case of Gangadhar Yashvant Ramekar vs. Mukeshbhai B. Shah, as 1999 (2) GLR 1105 : 1999 (2) EFR 570; (iii) in the case of M.B. Risaldar vs. Radheshyam Ramdhar Agarwal & Anr., 1980(2) GLR 136 ; in the case of State of Gujarat vs. Punabhai Ramabhai Machhi, 2005 (2) GLR 1767 : 2005 (2) EFR 714; in the case of Vasantray J. Khamkati vs. State of Gujarat & Anr., 2003 (4) GLR 3013 and in the case of Jagdish Chhataram Mulvani vs. State of Gujarat and An.' 2010 (4) FAC 564. 6.2. It is further submitted by Mr. Savjani, learned Advocate for the petitioner that the facts of the present case are also identical to the case of Jagdish Chhataram Mulvani vs. State of Gujarat (supra) and in that case the accused was ordered to be acquitted of all the charges levelled against him. 6.2. It is further submitted by Mr. Savjani, learned Advocate for the petitioner that the facts of the present case are also identical to the case of Jagdish Chhataram Mulvani vs. State of Gujarat (supra) and in that case the accused was ordered to be acquitted of all the charges levelled against him. It is therefore, submitted that the Revision Application may be allowed and the impugned judgment rendered by the courts below may be set aside and the petitioner may be acquitted of all charges levelled against him. 7. On the other hand, learned A.P.P. Ms. Chetna Shah for the respondents vehemently opposed the application and submitted that the powers of this Court are very limited under Section 397 read with section 401 of the Code. She has further submitted that there is a concurrent findings of two subordinate courts on factual aspects and about the compliance of all the mandatory requirements laid under the Act and the Rules. It is, therefore, submitted that all the mandatory requirements were duly complied with and there is no reason whatsoever to interfere with the concurrent findings of fact arrived at by two courts below. Ultimately, it is submitted that the revision petition may be dismissed. 8. It is true that the concurrent findings, qua, the facts are against the petitioner -accused is recorded, the High Court would slow in interfering with the same. How ever, when the question of following the mandatory provisions of the Act and Rules are concerned, the High Court would certainly interfere with the same if the Court finds that there is a clear breach of any Acts or Rules. In the present case, as stated here-in-below, there is a clear breach of the mandatory Rules. 9. I have gone through the entire record and also perused the depositions and the testimony of witnesses and the documentary evidence on record and this Court is inclined to accept the submissions of Mr. Savjani, learned Advocate, for the petitioner that the prosecution has failed in proving beyond doubt the compliance with mandatory provisions of Rule-14 of the Rules, which runs as under: "14. Savjani, learned Advocate, for the petitioner that the prosecution has failed in proving beyond doubt the compliance with mandatory provisions of Rule-14 of the Rules, which runs as under: "14. Manner of sending sample for analysis - Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed." 10. This Court in the case of M.B. Risaldar vs. Radheshyam Ramdhar Agrawal & Anr. (supra) has observed that when the Food Inspector leading evidence claims that he had put the quantity in clear bottles and when there was no evidence to show that the bottles were cleaned in his presence and when the person who had cleaned the bottles was not examined. It was held that it was not proved by the Food Inspector that the bottles were cleaned and dried as required under the Rules. In the instant case also, the Food Inspector has in his deposition had admitted that the helpers were responsible for cleaning the bottles and he himself has not cleaned the bottles. The prosecution examined the PW-3 at Exhibit-52 - Nagjibhai Bhikhabhai (the Helper), who had also deposed that he was not aware that who had cleaned the bottles out of those four Helpers in the Food Inspector's office. It is, therefore, clear that the prosecution has failed in proving the case beyond reasonable doubt that there was complete compliance with Rule 14 of the Rules, 1955. 11. In the instant case, it can safely be stated that the mandatory requirements laid down under Rule-14 of the Rules, 1955, cannot be said to have been duly and fully complied with. This court is, therefore, of the considered opinion that both the subordinate courts have failed to consider the relevant provisions of law and recorded the conviction of the petitioner - accused. The revision application, therefore, deserves to be allowed. 12. For the foregoing reasons, the revision petition is allowed. This court is, therefore, of the considered opinion that both the subordinate courts have failed to consider the relevant provisions of law and recorded the conviction of the petitioner - accused. The revision application, therefore, deserves to be allowed. 12. For the foregoing reasons, the revision petition is allowed. The judgment and order rendered by the learned Sessions Judge, Porbandar, in Criminal Appeal No. 10 of 1999 dated 30.11.2007 whereby dismissing the said appeal, the learned Sessions Judge, Porbandar, upheld the judgment and order dated 15.5.1999, rendered by learned Judicial Magistrate, First Class, Porbandar, in Criminal Case No.13786 of 1995, whereby the learned Judicial Magistrate, First Class, Porbandar, recorded conviction of the petitioner - accused for the offence punishable under Section 7(1) read with Section 16 of the Prevention of Food Adulteration Act, 1954 and awarded sentence thereunder, are hereby set aside. The petitioner - accused is ordered to be acquitted of all the charges levelled against him. The petitioner is on bail. His bail bond shall stand cancelled. Fine, if paid, be refunded to the petitioner. Rule is made absolute. Revision allowed.