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2014 DIGILAW 1048 (GUJ)

NARENDRA B. VYAS v. DILIPBHAI MANILAL MODI

2014-09-24

G.B.SHAH

body2014
ORAL JUDGMENT 1. Present appeal under Section 378(4) of the Criminal Procedure Code, 1973 ('the Code' for brevity) has been directed against judgment and order dated 21/12/2000 passed by the learned Judicial Magistrate First Class (Municipal Court), Surat in P.F.A Case No. 32 of 1996 whereby, the learned trial Judge was pleased to acquit the respondent herein – original accused from the offence punishable under Section 16 of the Prevention of Food Adulteration Act, 1954 (for brevity 'the said Act') for the alleged breach of the provisions of Section 7 of the said Act. 2. Heard Mr. Masoom K. Shah, learned advocate appearing for the appellant, Mr. D. K. Modi, learned advocate appearing for the respondent No. 1 – original accused and Mr. K. L. Pandya, learned Additional Public Prosecutor, appearing for the respondent No. 2 State of Gujarat. 3. Brief facts of the prosecution case are that on 16/08/1995, complainant Narendrakumar Balkrishna Vyas visited the shop namely Dilip Traders belonging to respondent No. 1 – original accused, who found to be selling Ghee. The complainant took the sample of Ghee for analysis after following due procedure for the same and sent the same to the Public Analyst for analysis and on report being received, Ghee was found not as per the approved standards and hence, the accused was alleged to have committed the offence as above for which, complaint had been lodged against him. 4. In support of the case, the prosecution recorded statements of witnesses and collected several documentary evidence. The learned trial Judge framed Charge against the accused for the alleged offence. The Charge was read over to the respondent – original accused to which, he pleaded not guilty and claimed to be tried. In order to bring home the charge against the respondent – original accused, the prosecution has examined as many as 03 witnesses and also produced several documentary evidence. On submission of closing pursis, Further Statement of the accused under Section 313 of the Code was recorded. The accused denied involvement in the crime. After hearing both the sides and on appreciation of the evidence adduced before the trial Court, the accused came to be acquitted. 5. On submission of closing pursis, Further Statement of the accused under Section 313 of the Code was recorded. The accused denied involvement in the crime. After hearing both the sides and on appreciation of the evidence adduced before the trial Court, the accused came to be acquitted. 5. The learned advocate appearing for the appellant submitted that the learned trial Judge has not properly appreciated oral as well as documentary evidence produced on record and has erred in holding that the prosecution has failed to prove the charge against the accused beyond reasonable doubt. He submitted that the prosecution has examined in all 03 witnesses, who have supported the case of the prosecution, however, the learned trial Judge has not properly appreciated the evidence of the said witnesses and thereby, the finding recorded by the learned trial Judge that the prosecution has failed to prove the charge against the accused by leading legal, reliable and impeachable evidence, is contrary to the evidence available on record. He, drawing attention of the Court on para 5 of the impugned judgment and order, submitted that the learned trial Court has erred in coming to the conclusion that sample Ghee was not churned from one utensil to the another and after observing so, the learned trial Judge has himself observed in the said paragraph that the complainant had churned (sample) Ghee before taking the same and thus, the conclusion recorded by the learned trial Judge is required to be set aside. He further submitted that so far as the ground related to Appendix is concerned on which according to him the Public Analyst Report is silent, is not a good ground for which, benefit can be given to the respondent No. 1 – accused. Last but not the least, he submitted that the present appeal may be allowed in the interest of justice. 6. On the other hand, Mr. D. K. Modi, learned advocate appearing for the respondent No. 1 – original accused drawing attention of the Court on the cross-examination of complainant – Food Inspector, Narendrakumar Balkrishna Vyas, whose deposition is recorded vide exh. 24 submitted that it has been admitted by the Food Inspector that sample Ghee was white and having little yellowish colour and it was in semi liquid form. Moreover, he drew attention of the Court upon the report of the Public Analyst at exh. 24 submitted that it has been admitted by the Food Inspector that sample Ghee was white and having little yellowish colour and it was in semi liquid form. Moreover, he drew attention of the Court upon the report of the Public Analyst at exh. 42 and submitted that the report is silent regarding the “Cotton Tract Areas”. He further submitted that in the cross-examination, the Food Inspector himself has admitted that there are different standards for “Cotton Tract Areas” and for the “areas other than Cotton Tract Areas” and in spite of that, the said important aspect has not been considered by the Public Analyst and under the circumstances, the impugned judgment and order requires to be upheld as this being an appeal against the acquittal and proper and plausible reasons have been recorded for the conclusion arrived at and the findings recorded and as there appears no infirmity and/or arbitrariness, it should not be interfered with, at the hands of this Court. 7. Mr. K. L. Pandya, learned Additional Public Prosecutor, appearing for the respondent No. 2 – State of Gujarat has adopted the submissions made by the learned advocate appearing for the appellant. 8. I have considered the above referred rival submissions in light of the following decisions on which the learned advocate appearing for the respondent No. 2 has placed reliance: i) In Laxmichand Bhailal Thakker Vs. State of Gujarat, reported in 1995 (2) GLR 1528 . ii) In Sudhirchandra B. Joshi, Food Inspector, Baroda Vs. Arvindkumar Narnabhai Patel and Other, reported in 2002 (2) FAC 196. iii) In State of Gujarat Vs. Ashwinbhai Ramanlal Patel in Criminal Appeal No. 506 of 1996, decided on 01/12/2004 by this High Court. iv) In State of Gujarat Vs. Bhagubhai Ramjibhai Patel (Owner of Hariom Kirti Dugdhalay), in Criminal Appeal No. 591 of 2008, decided on 13/02/2009 by this High Court. v) In Criminal Misc. Application (For Leave to Appeal) No. 7289 of 2013 decided on 03/12/2013 by this High Court. 8.1 In appendix B, more particularly, in A.11.02.15, the standards of quality of Ghee have been narrated in a tabular form. So far as the State of Gujarat is concerned, the same are narrated at serial No. 10, which read as under: Sl. Application (For Leave to Appeal) No. 7289 of 2013 decided on 03/12/2013 by this High Court. 8.1 In appendix B, more particularly, in A.11.02.15, the standards of quality of Ghee have been narrated in a tabular form. So far as the State of Gujarat is concerned, the same are narrated at serial No. 10, which read as under: Sl. No. Name of State / Union Territory Butyro refracometer Minimum Reichert Percentage of reading at 400C value FFA as oleic acid (Max) Moisture (Max) 10 Gujarat: (a) Areas other than cotton tract 40.0 to 43.5 24 3.0 0.5 (b) Cotton tract areas 41.5 to 45.0 21 3.0 0.5 8.2 Referring to the above Appendix, it is clear that so far as provisions of the Prevention of Food Adulteration Act, 1954 are concerned, there are two standards of Ghee i.e. “Areas other than cotton tract areas” and “Cotton tract areas” and they are not the same and similar. As per the report of the Public Analyst, exh. 42, sample Ghee which was taken from the premises of the respondent No. 1 does not conform to the standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955 but in the entire report, the important aspect related to the “Cotton Tract Areas” and “Areas other than cotton tract areas” appears to have not been considered by the Public Analyst nor it has been mentioned in the report and this fact has been admitted by the Food Inspector at the fag end of his deposition recorded at exh. 24. It has also come on record that while taking (sample) Ghee, the same was in semi liquid form and under the circumstances, to procure sample, entire quantity was required to be heated to ensure that Ghee has been made homogeneous. If, for the sake of argument, it is presumed that the same was churned from one utensil to the another, then also, when it has come on record that Ghee was in semi liquid form, it was required to be taken after heating the same. Thus, on going through the impugned judgment and order carefully, dealing with all the aspects of the matter, this Court is in agreement with the conclusion arrived at and the findings recorded by the learned trial Judge and with a view not to burden the Court record any more, the Court stays its hands. 9. Thus, on going through the impugned judgment and order carefully, dealing with all the aspects of the matter, this Court is in agreement with the conclusion arrived at and the findings recorded by the learned trial Judge and with a view not to burden the Court record any more, the Court stays its hands. 9. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal if other view is possible then also appellate Court cannot substitute its own view by reversing the acquittal into conviction, unless the findings of the trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi V. State of Gujarat (1996) 9 SCC 225 ). In the instant case, the learned Additional Public Prosecutor has not been able to point out as to how the findings recorded by the learned trial Court are perverse, contrary to material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 9.1 In the case of Ram Kumar Vs. State of Haryana, reported in AIR 1995 SC 280 , Supreme Court has held as under: “The powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr.P.C. Are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the Trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal.” 9.2 As observed by the Hon’ble Supreme Court in the case of Rajesh Singh & Others Vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan alias Jardar Khan and Another Vs. State of Uttar Pradesh reported in (2011) 11 SCC 444 and in the case of Bhaiyamiyan alias Jardar Khan and Another Vs. State of Madhya Pradesh reported in (2011) 6 SCC 394 , while dealing with the judgment of acquittal, unless reasoning by the learned trial Court is found to be perverse, the acquittal cannot be upset. It is further observed that High Court’s interference in such appeal is somewhat circumscribed and if the view taken by the learned trial Court is possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial Court, it might have taken a different view. 9.3 Thus, considering the above evidence forthcoming on record and considering the aforesaid facts and circumstances of the case and law laid down by the Hon’ble Supreme Court while considering the scope of appeal under Section 378 of the Code of Criminal Procedure, no case is made out to interfere with the impugned judgment and order of acquittal. 10. In view of the aforesaid discussion, the appeal having found without any substance, fails and is dismissed accordingly. The impugned judgment and order dated 21/12/2000 passed by the learned Judicial Magistrate First Class, Municipal Court, Surat in P.F.A. Case No. 32 of 1996, is confirmed. Bail bonds shall stand cancelled. Registry to send back the record and proceedings, if called for, to the trial Court forthwith after following due procedure for the same.