Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 1066 (GUJ)

State Of Gujarat v. Parsottambhai Jivabhai Tank

2014-10-07

G.B.SHAH

body2014
JUDGMENT : G.B. Shah, J. Present appeal under Section 378 of the Criminal Procedure Code, 1973 ('the Code' for brevity) has been directed against judgment and order dated 15/05/1996 passed by the learned Judicial Magistrate First Class, Gondal in Criminal Case No. 541 of 1988 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(i) of the said Act. 2. Heard, Mr. K.L. Pandya, learned Additional Public Prosecutor, for the appellant - State of Gujarat and Mr. Manoj T. Danak, learned advocate for the respondent - original accused. I have also perused the impugned judgment and order referred above. It is observed by the learned trial Judge that the Public Analyst had analysed the sample on 06/05/1988 and signed the Report on 16/05/1988 and thus, it is undisputed that the dates of analysis of the sample and signing the Report differ from each other. Besides, the learned trial Judge has placed reliance on a decision of this Court rendered on 24/02/1994 in Criminal Appeal No. 200 of 1987 as well as another decision rendered in the case of K.T. Rajkotwala v. State of Maharashtra in Criminal Appeal No. 818 of 1969 decided on 15/12/1970 in passing the impugned judgment and order. 3. On the identical issue, when a reference was made to the Division Bench of this Court by the learned Single Judge in Criminal Appeal No. 374 of 1987, decided on 30/05/1996, the Division Bench in the case of State of Gujarat v. Vishramdas Virumal, reported in 2000 (4) GLR 2884 (Vol. XLI) has held in paras 17 and 18 as under: "17. Having discussed the issue in detail, our reply to the question raised is as under :" A report of the Public Analyst delivered under section 13 (1) of the Prevention of Food Adulteration Act, 1954 declaring on analysis of a sample of food to be "adulterated" or "misbranded", cannot be ignored without examining the Public Analyst as a witness either by the Court or the accused raising a doubt about the correctness of the report only on the ground that the report is signed by the Public Analyst later on and not on the date on which sample was analysed". 18. 18. Registry is directed to list Criminal Appeal No. 255 of 1991 before the Regular Bench taking up such matters at the earliest." (emphasis supplied) 4. Pursuant to the aforesaid order passed by the Division Bench in Vishramdas Virumal (supra), Criminal Appeal No. 255 of 1991 was placed before the regular bench of this Court, which dismissed the appeal on 10/12/2008 and paras 7 and 8 of the said order are relevant, which are extracted hereunder: "7. This is an acquittal appeal in which the Court would be slow to interfere with the order of acquittal. Infirmities in the prosecution case go to the root of the matter and strike a vital blow on the prosecution case. In such a case, it would not be safe to set aside the order of acquittal, more particularly when the evidence has not inspired confidence of the learned Magistrate who had the opportunity to observe demeanour of the witnesses. As this Court is in general agreement with the view expressed by the learned Magistrate, the Court does not think it necessary either to reiterate the evidence of prosecution witnesses or to restate the reasons for acquittal given by the learned Magistrate and this Court is of the opinion that expression of general agreement with the view taken by the learned Magistrate would be sufficient in the facts of the case. This is so in view of the decisions rendered by the Supreme Court in the cases of Girija Nandini Devi & Others v. Bijendra Narain Chaudhari, AIR 1967 SC 1124 , and State of Karnataka v. Hema Reddy and Another, AIR 1981 SC 1417 . 8. For the foregoing reasons, the appeal is devoid of merit and the same is hereby dismissed. The order of acquittal passed by the learned trial Judge is hereby confirmed. The Muddamal is ordered to be destroyed in terms of order dated 20.12.1990 passed by the learned Chief Judicial Magistrate, Bharuch in Criminal Case No.19418 of 1990". 5. So far as the case on hand is concerned, except the complainant, no other witness has been examined. Moreover, while passing the impugned judgment and order, except the issue related to signatures made on different dates, no other aspects have been dealt with and/or discussed by the learned trial Judge. 5. So far as the case on hand is concerned, except the complainant, no other witness has been examined. Moreover, while passing the impugned judgment and order, except the issue related to signatures made on different dates, no other aspects have been dealt with and/or discussed by the learned trial Judge. Under the circumstances, this Court is of the opinion that considering the ratio laid down by the Division Bench of this Court in Vishramdas Virumal (supra), interest of justice would be served if the matter is remanded back to the learned trial Court for deciding the same afresh. Accordingly, present appeal is allowed and the judgment and order dated 15/05/1996 passed by the learned Judicial Magistrate First Class, Gondal in Criminal Case No. 541 of 1988 is hereby set aside. The matter is remanded back to the learned trial Court to decide the same afresh, after giving opportunity of hearing to the parties of the said case, as early as possible. R & P be sent back to the Court concerned, forthwith, after following due procedure. Appeal allowed.