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2015 DIGILAW 1264 (GUJ)

S. S. Makwan v. Satishbhai Ramanlal Shah

2015-12-09

RAJESH H.SHUKLA

body2015
JUDGMENT : Rajesh H. Shukla, J. 1. Present appeal is filed by the appellant-original complainant challenging the impugned judgment and order rendered in Criminal Case No. 56 of 2003 by the Metropolitan Magistrate, Court No. 6, Ahmedabad dated 13.04.2006 recording acquittal of the respondent accused for the offence under Section 16(1)(9)(I) read with Section 7(i) of the Prevention of Food Adulteration Act, on the grounds stated in the memo of appeal. 2. Heard learned Advocate Ms. Dilbar Contractor for Mrs. Kalpana K. Raval for the appellant-original complainant, learned Advocate Shri D.K. Modi for the Respondent-No. 1 and learned APP Shri H.L. Jani for the Respondent No. 2-State. 3. Learned Advocate Ms. Dilbar Contractor for Mrs. Kalpana K. Raval for the appellant-original complainant referred to the papers and submitted that whether the acquittal could have been recorded for the reasons or the grounds mentioned, is required to be considered. She emphasized that the observations have been made that the panch-witnesses have not supported the case of the prosecution on the extent of variety of ice-cream samples. She submitted that the approach cannot be so casual. Learned Advocate Ms. Contractor referred to the testimony of the Food Inspector-P.W. No. 4. She submitted that the manner in which, the samples have been taken, is also stated and he has narrated about the entire procedure. She therefore submitted that it cannot be said that the provisions of law and mandatory provisions are not complied with. Learned Counsel Ms. Contractor also referred to the testimony of P.W. No. 2 (peon) and submitted that he has corroborated the testimony of Food Inspector-P.W. No. 1 on material aspect about taking of samples and applying the seals. He has denied the suggestion that he has not taken part in sealing and packing. Learned Advocate Ms. Contractor therefore submitted that the evidence of the complainant corroborated by the testimony of P.W. No. 2, who had accompanied him, has been brushed aside. She has also referred to the testimony of P.W. No. 3 Panch-witness and submitted that he has confirmed that Food Inspector had made packing and sealing with the help of peon and thereafter he had sent it for the laboratory test. She has also referred to the testimony of P.W. No. 3 Panch-witness and submitted that he has confirmed that Food Inspector had made packing and sealing with the help of peon and thereafter he had sent it for the laboratory test. She has also referred to the judgment recording the reasons for the findings and conclusion arrived at by the Court below and submitted that the reasons recorded are contrary to the material and it has failed to appreciate the evidence on record. She has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1977 SC 56 in the case of Prem Ballab vs. State (Delhi Administration) and also relied upon the judgment of the Hon'ble Supreme Court reported in AIR 1992 SC 1121 in the case of State of Uttar Pradesh Vs. Hanif. Learned Advocate Ms. Contractor has also referred to the judgment of this High Court reported in 1999 (1) GLR 452 in the case of State of Gujarat Vs. Gurukrupa Kariyana Stores & Ors. In support of her submission, she has further referred to and relied upon the judgment reported in 1990 Cr.L.J. 2452 in the case of S.D. Nagdeve, Food Inspector, Amravati Vs. Sudhakar Raghunath Burange. Learned Advocate Ms. Contractor strenuously submitted that contradictions or the discrepancies must be shown to have caused prejudice or they have affected the root of the matter. She submitted that unless it is shown that the prejudice is caused, the benefit of doubt would not be justified. 4. Learned APP Shri H.L. Jani submitted that even if the panch-witness is hostile the evidence has to be appreciated and full inspection has to be believed. He submitted that appropriate order may be passed. 5. Learned Advocate Shri D.K. Modi for the respondent-accused submitted that the judgment and order passed by the trial court is not erroneous. He submitted that while appreciating the prosecution evidence, the Trial Court has not committed any error and therefore, the appropriate order may be passed. The reference was made to the testimony of the Food Inspector. It was submitted that the notification made by the Government does not support the public interest nor any public interest is served. Learned Advocate Shri Modi submitted that point that what was agreed to, could not be considered by the appellant, which has led to some quarrel. The reference was made to the testimony of the Food Inspector. It was submitted that the notification made by the Government does not support the public interest nor any public interest is served. Learned Advocate Shri Modi submitted that point that what was agreed to, could not be considered by the appellant, which has led to some quarrel. He referred to and relied upon the judgment of Hon'ble Apex Court reported in 1981 Cr.L.J. 551 in the case of State of Gujarat Vs. Keshavlal Kalidas Patel and Anr. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1995 SCC (Cri) 1111 in the case of Md. Sharif Vs. State of Orissa. It was submitted that the testimony of the complainant-Food Inspector at Exh. 4 is required to be considered independently and the corroboration by other witnesses would not be justified. Learned Advocate Shri Modi submitted that as the submissions which were canvassed and not considered are required to be considered by the Appellate Court. In support of his submission, he has referred to and relied upon the judgment reported in 1981 Cr.L.J. 551 (supra). Similarly, he has referred to the judgment of the Honble Apex Court reported in 2006 (1) FAC 200 in the case of State of Orissa Vs. Rabindra Sahu. It was submitted that notice under Section 13(2) is also not served. For that purpose, reliance has been placed on the judgment reported in 1995 SCC (Cri) 1111 in the case of Md. Sharif Vs. State of Orissa. However, it was submitted that the complainant was under obligation, who would have taken food inspection. Therefore, the peon is exonerated from all the charges for which the documents is produced at Exh. 19. He submitted that sample of ice-cream is to be taken, however, it should be taken in compliance with the statutory provisions as well as the order of the High Court of Delhi. In support of this, the reliance is placed on the judgment of Hon'ble Apex Court reported in 2007 (1) FAC 183 in the case of State (Delhi Admn.) Vs. Naresh Chand and Ors. Therefore, learned Advocate Shri Modi has referred to Section 36(2) and submitted that right may not be entrusted and should be preserved and he also submitted that there is no evidence that it was kept in a refrigerator. Naresh Chand and Ors. Therefore, learned Advocate Shri Modi has referred to Section 36(2) and submitted that right may not be entrusted and should be preserved and he also submitted that there is no evidence that it was kept in a refrigerator. Learned Advocate Shri Modi has stated that for the delay and improper sampling or the procedure for taking sample has been focused and the judgment and order recording acquittal may not be disturbed. He also referred to the book of milk and milk products. Learned Advocate Shri Modi also referred to the order of this High Court passed in Criminal Appeal No. 614 of 2010 para No. 5. He also referred to the judgment of the Hon'ble Apex Court reported in 1998 (2) FAC (High Court of Allahabad) 18 in the case of State of U.P. Vs. Bardri. 6. Learned Advocate Shri Modi also referred to the provision of Section 13 and submitted that as it is mandatory provision and it should be complied with strictly. He also referred to Section 13(2) of the Food Adulteration Act and submitted that it could have been sent to Central Food Laboratory and such opportunity has been denied. He has referred to the judgment of the Hon'ble Apex Court reported in 1996 SCC (Cri) 75 in the case of Rameshwar Dayal Vs. State of U.P., and also a judgment reported in 2002 FAJ 490 in the case of State of Orissa Vs. Gouranga Sahu. Learned Advocate Shri Modi therefore submitted that as there is no compliance with the notice under Section 13(2), such application may not be entertained. 7. State of U.P., and also a judgment reported in 2002 FAJ 490 in the case of State of Orissa Vs. Gouranga Sahu. Learned Advocate Shri Modi therefore submitted that as there is no compliance with the notice under Section 13(2), such application may not be entertained. 7. Learned Advocate Shri Modi has referred to and relied upon the following judgments in support of his submission canvassed by him: • 2007 (2) FAC 59 • 2007 (2) SCC (Cri.) 680- • 1991(2) GLR 82 : 1990 (2) GLH 576 • 1986 FAJ 576 • 2014(3) RCR (Cri) 929 • 1992 FAJ 465 • 1995 SCC (Cri) 1111 • 2006 (1) FAC 200 • 1991 Cr.L.J. 551 • 1990 (2) FAC 128 • 1988 (1) FAC 81 • 2008 (2) FAC 485 • 2007 (2) FAC 203 • 2002 FAJ 490 • 2007 (2) FAC 42 • 1996 SCC (Cri) 75 • 2014 (13) SCC 72 : AIR 2004 SC 1236 • 1998 (2) FAC 18 • 2007 (2) FAC 168 • 1997 FAJ 489 • 2007 (1) FAC 183 • 1978 GLR 449 • 1988 (2) FAC 156 • Criminal Appeal No. 485 of 1987 dated 21.08.1997 • Criminal Appeal No. 614 of 2010 dated 12.05.2010 • Criminal Appeal No. 489 of 2002 dated 20.12.2004 • Criminal Appeal No. 882 of 1992 dated 01.12.2000 • Criminal Appeal No. 686 of 2000 dated 12.03.2006 • Criminal Appeal No. 1338 of 1984 dated 01.10.1993 • Criminal Appeal No. 995 of 1993, • Criminal Appeal No. 54 of 1990 dated 08.12.2000 • Criminal Appeal No. 204 of 1979, dated 08.12.19990 • Criminal Appeal No. 226 of 2013, dated 05.03.2013 • Criminal Revision Application No. 110 of 1994, dated 18.09.2000 • Criminal Misc. Application No. 2612 of 1999 8. Learned Advocate Shri Modi has submitted that provision of Section 13(2), which is mandatory provision is not complied with as regards the service. He submitted that registered acknowledgment has been referred to but it may not be relevant. He submitted that the procedure in sampling cannot be doubted as it has been proved that there is no compliance with the Rule. He has referred to and relied upon the judgment of Hon'ble Apex Court reported in 2014 (0) GLHEL-SC 55830 in the case of Sharanayya Vs. Chandrakanth as well as judgment reported in 2002 FAJ 490 in the case of State of Orissa Vs. Gouranga Sahu. He has referred to and relied upon the judgment of Hon'ble Apex Court reported in 2014 (0) GLHEL-SC 55830 in the case of Sharanayya Vs. Chandrakanth as well as judgment reported in 2002 FAJ 490 in the case of State of Orissa Vs. Gouranga Sahu. Similarly, he has referred to the order passed in Criminal Appeal No. 9693 of 2013 and also a judgment reported in 1992 FAJ 465 in the case of State of Assam Vs. Jagat Singh. It was submitted that as observed in this judgment, if two views are possible, then it may not be justified to interfere with the judgment, which is challenged. Therefore, he submitted that present appeal may be dismissed. 9. In rejoinder, learned Advocate Ms. Contractor submitted that the documents which have been relevant and the documents which the accused was carrying were required. Therefore, he would not make any evidence. Learned Advocate Ms. Contractor submitted that sampling was followed on the other occasion also. The submission made by other side however may not be accepted, as the procedure has been followed. She submitted that the act prescribes procedure and the law and therefore, it has to be construed strictly. Learned Advocate Ms. Contractor referred to and relied upon the judgment reported in AIR 1971 SC 1277 in the case of Babulal Vs. State of Gujarat and in a judgment reported in AIR 1977 SC 56 in the case of Prem Ballab Vs. State (Delhi Administration). Learned Advocate Ms. Contractor submitted that there is no material in the present appeal on the basis of which presumption could be made regarding non-service of notice under Section 13(2) of the Act. Therefore, no presumption could be raised under Section 13(2) that there is no violation of such rules. She also referred to the judgment of this Court reported in 2007 (2) FAC 59 in the case of S.R. Raval Vs. Vijaybhai Jivatram Lakhvani and anr. 10. Learned Advocate Shri Modi however, again referred to the papers and emphasized with regard to the non service of notice under Section 13(2). He submitted that the petitioner is disputing his right is not simple to the Central Food Laboratory. He also referred to the other judgments of this High Court passed in Criminal Appeal No. 1338 of 1984. He also submitted that sample was not preserved as it should be. He submitted that the petitioner is disputing his right is not simple to the Central Food Laboratory. He also referred to the other judgments of this High Court passed in Criminal Appeal No. 1338 of 1984. He also submitted that sample was not preserved as it should be. He submitted that sample of ice-cream ought to have been preserved in the refrigerator and there is no evidence that it was kept in refrigerator. He has referred to and relied upon the decision of this Court reported in 2007 (2) FAC (Gujarat) 168 in the case of Kantilal Motibhai Limbachiya Vs. State of Gujarat and anr. Similarly, he emphasized that when the sample of ice-cream or such things is to be taken and procedure, is highlighted as to how it should be taken and it has been considered by the Hon'ble Delhi High Court in a judgment reported in 2007 (1) FAC 183 (Supra) Learned Advocate Shri Modi submitted that there is no evidence that it was kept in the ice-box. He therefore submitted that sample which was collected on 16.05.2003 and it has been sent for analysis on 19.05.2003, which may cause prejudice to the rights of the respondent-accused. 11. Learned Advocate Shri Modi also submitted that for preservation, formalin is required to be added into the sample for fat. He submitted that after addition it should be mixed. He referred to Rule 15 of the Food Adulteration Rules and also judgments of this Court passed in Criminal Appeal No. 489 of 2002 dated 20.12.2004 and Criminal Appeal No. 614 of 2010 dated 12.05.2010. He tried to submit that there is procedure, which is not followed regarding formalin. He therefore submitted that this procedure of sampling was not proper and therefore also the judgment and order recording acquittal may not be disturbed. 12. Lastly, he has submitted that the Appellate Court may not disturb the findings of the Trial Court recording acquittal, merely because two views are possible. He submitted that on appreciation of evidence, the findings recorded by the Trial Court and the view taken is reasonable then it may not be disturbed. In support of his submissions he has referred to and relied upon the decision of the Hon'ble Apex Court reported in 2007 (2) SCC 680 in the case of State of M.P. Vs. Mukesh and Ors. In support of his submissions he has referred to and relied upon the decision of the Hon'ble Apex Court reported in 2007 (2) SCC 680 in the case of State of M.P. Vs. Mukesh and Ors. He therefore, submitted that appeal filed by the appellant may be dismissed. 13. Learned Advocate Shri Modi also submitted that sanction is not given by the Competent Authority. He submitted that Deputy Municipal Commissioner has granted sanction but has not appointed the competent officer as required under BPMC Act, and there is no notification. He submitted that the inspector being and employee of the Corporation, cannot grant sanction. 14. In view of these rival submissions made at length, it transpires that the reasons recorded on every aspect may not be justified but at the same time, they are also not erroneous or perverse. The main emphasize that it could be considered with regard to the procedure for collection of sample and formalin. Further, he much emphasized on the aspect of notice under Section 13(2) of the Act. However, as could be seen from the judgment of the Hon'ble Apex Court reported in AIR 2005 SC 109 in the case of V. Raja Kumari Vs. P. Subbarama Naidu and Anr., wherein it has observed with reference to Section 27 of the General Clauses Act that if the notice has been sent by registered AD post, it would be deemed to have been served. While dealing with the similar issue of notice under Negotiable Instrument Act has made observation referring to the General Clauses Act. It has been observed and discussed as to when notice can be said to have been given and served. It has been observed that, "11. In Maxwell's Interpretation of Statutes, the learned author has emphasised that "provisions relating to giving of notice often receive liberal interpretation" (vide p. 99 of the 12th Edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature." 15. The provision of Section 64 of the Code of Criminal Procedure, 1973 also provides for service of the process to any adult male member of the family residing with him. The provision of Section 64 of the Code of Criminal Procedure, 1973 also provides for service of the process to any adult male member of the family residing with him. Therefore, statutory provisions in the Code of Criminal Procedure, which is with regard to service and when it has been served to family members, it cannot be said that there is no proper service of notice under Section 13(2). Further, this aspect also has to be considered with reference to Section 27 of the General Clauses Act, 1879. Section 27 of the General Clauses, Act provides that, "27. Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, preparing and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." 16. In this judgment, the Hon'ble Apex Court has referred to the provisions of Section 138 of the Negotiable Instrument Act, wherein it has been observed that, "14. No doubt Section 138 of the Act does not require that the notice should be given only by 'post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice." 17. It is in this background, the observations made cannot be readily accepted, thought the judgment of the Hon'ble Apex Court reported in 2012 (2) FAC 444 in the case of Mohd. Zafar Vs. State of Uttarakhand, in a given set of facts has made observations that service to the grand father would not be sufficient. It is in this background, the observations made cannot be readily accepted, thought the judgment of the Hon'ble Apex Court reported in 2012 (2) FAC 444 in the case of Mohd. Zafar Vs. State of Uttarakhand, in a given set of facts has made observations that service to the grand father would not be sufficient. However, the said judgment is not considered, as the aforesaid earlier judgments which have dealt with this aspect in detail. Therefore, the observations made with reference to non-service of the notice under Section 13(2) of the Act may deprive of any opportunity or prejudice to the respondent accused is misconceived. 18. Similarly, the issue with regard to the grant of sanction is misconceived, as it could be read from Notification that the sanction was properly given by the authority i.e. competent authority and the findings may not be accepted. 19. However, at the same time, the emphasis given on the report of the Public Analyst emphasizing that in the Prevention of Food Adulteration Act, the standard of fat prescribed is less than 10 and the fat which was found is 6.75 and therefore, it is adulterated requires closer scrutiny. For that purpose, a useful reference can be made to the judgment and order passed in Criminal Appeal No. 84 of 1990. Further, the allegations are with regard to the amount/percentage of fat. However, the extent of adulteration is not stated as could be seen from the record. Therefore, the difference or the variation with regard to percentage of the fat has reference to the quality. However, it does not refer to any other element by which it can be said to be adulterated. In other words, the lesser percentage of fat may have a reference to the quality, but that does not necessarily established the adulteration. 20. A useful reference can be made to the observation made in judgment of the High Court reported in 1982 (2) GLR 624 in the case of State Vs. Bhagubhai Ramjibhai. The High Court has referred to this very issue as regards the percentage of fat and the addition of water to the milk. Again a reference is made to the addition of water when the formalin solution was added. Bhagubhai Ramjibhai. The High Court has referred to this very issue as regards the percentage of fat and the addition of water to the milk. Again a reference is made to the addition of water when the formalin solution was added. It is in these circumstances, it has been observed that exact percentage of water added to the milk can be found out by carrying out what is know as the freezing point test. Similarly, in another judgment reported in 1995 SUPP (1) SCC 247 in the case of Administrator of the City of Nagpur, Vs. Laxman and another, the Hon'ble Apex Court has made observations with regard to the percentage of fat, confirming the acquittal. This has also been considered in a subsequent judgment by the Hon'ble Apex Court in a judgment reported in (2009) 16 SCC 276 in the case of P.S. Sharma Vs. Madanlal Kasturichandji and Anr., Therefore, in light of these judgments, the view taken by the Court below, may not call for any interference. 21. Therefore, having regard to the over all appreciation of evidence though the observations and the reasons recorded may not be totally sustained. 22. However, overall appreciation of the material and evidence, the findings and conclusion recording acquittal cannot be said to be erroneous or perverse, which would call for any interference. The Hon'ble Apex Court in catena of judicial pronouncements has laid down the broad guidelines with regard to scope of Section 378 and approach in such acquittal appeals including the observations made in a judgment reported in (2007) 4 SCC 415 in the case of Chandrappa and Ors., Vs. State of Karnataka., wherein it has been observed that, "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge; [1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 23. Further, the same view has also been reiterated and reconsidered again in a subsequent judgment including observations made in a judgment reported in a judgment reported in AIR 2013 SC 321 in the case of Mookiiah and Anr. Vs. State, represented by the Inspector of Police, Tamil Nadu. Again emphasizing that if the view taken by the Court below is plausible view the same may not be disturbed, merely because the other view is also possible on appreciation of the same evidence. Further, while discussing on this aspect about the approach, a reference can be made to another judgment of the Hon'ble Apex Court reported in 2011 (5) SCC 142 in the case of Chiarman-cum-Managing Director, Coal Indian Limited and Ors., Vs. Ananta Saha and Others. 24. Therefore, having regard to the aforesaid discussion and the broad guidelines, present appeal deserves to be dismissed and accordingly stands dismissed.