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2016 DIGILAW 1472 (GUJ)

Tribhovandas Gandalal Patel v. State of Gujarat

2016-07-25

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Mr. S.R. Divetia for the petitioner and learned Additional Public Prosecutor Mr. Manan Mehta for respondent No. 1-State. 2. Perused the record so also compilation of relevant documents in the form of paper book of Criminal Case No. 669 of 1991. 3. The petitioner herein has challenged the judgment and order dated 19.01.1996 in Criminal Case No. 669 of 1991 by Judicial Magistrate First Class of Viramgam, convicting the petitioner under the provisions of Prevention of Food Adulteration Act and confirming of such order of conviction by judgment and order dated 25.10.2007 in Criminal Appeal No. 5 of 1996 by the Additional Sessions Judge, Ahmedabad (Rural). 4. The complaint was filed by one Shri A.K. Patel, Food Inspector initially against three accused including present petitioner who was listed as accused No. 1. The sum and substances of the complaint is to the effect that on 11.01.1991 when complainant has visited the shop of the present petitioner at Village Katosan Road in Viramgam Taluka of Ahmedabad District, he collected a sample of Chilly powder for its analysis through Public Analyst to verify its contents and to scrutinize that whether there is any adulteration or not. However, it is undisputed fact that collection of such sample is in fact in the form of pre-packed Chilly powder in sealed packing and having the brand name of "Bajrang Masala". It also undisputed fact that petitioner is simply a Vendor of such pre-packed Chilly powder so also it is clear and certain on record that he is not making or preparing the packets for its sale but he purchased it from the manufacturer of such packed Chilly powder i.e. respondent No. 3 who is owner of the firm namely "Bajrang Masala" who are preparing/making the Chilly powder and packing it at his own premises situated in Panchlimbdi area of Mehsana Town and selling the pre-packed pouch of such Chilly powder at different places through its Vendors. Petitioner is one of such Vendor only. Its also undisputed fact that accused No. 3 Ramanlal Prahladdas Patel owner of Shri Bajran Masala firm and thereby manufacturer and supplier of Chilly powder under reference had expired pending the trial and therefore, criminal complaint was abated against him. Petitioner is one of such Vendor only. Its also undisputed fact that accused No. 3 Ramanlal Prahladdas Patel owner of Shri Bajran Masala firm and thereby manufacturer and supplier of Chilly powder under reference had expired pending the trial and therefore, criminal complaint was abated against him. Therefore, judgment and order of conviction by the trial Court is only against accused No. 1 and 2 who are father and son and vendors of Chilly powder in question. 5. The trial Court has considered the report of public analyst which confirms that there is either adulteration or impurities in the Chilly powder, since its contents are not as per the standard for such product. Thereby, though percentage of total ash content is within admissible limit of percentage, insoluble ash which can dissolve only in HCL and non volatile other extract are higher than the permissible percentage in the sample of Chilly powder that was added as colouring material in the form of pink coloured oil soluble coal tar dye, the trial Court has considered that the Chilly powder is adulterated and therefore, convicted the petitioner and awarded sentence of one year imprisonment to both the accused with fine of Rs. 1000/- and in default of payment of fine the petitioner undergo imprisonment for further three months. 6. When petitioner has challenged such order in Criminal Appeal before the Sessions Court, the Court has also confirmed the order of conviction narrating the history of taking the sample and history of proceedings against the accused. 7. Therefore, one fact is quite clear and obvious on record that present petitioner is neither manufacturer not packer of the Chilly powder in question but he is dealing with the packed chilly Powder in a sealed packet and thereby when original accused No. 3 who is manufacturer of the Chilly powder has expired pending the trial, practically there remains nothing against the present petitioner so as to confirm his conviction as done by both the Courts below. 8. 8. Both the courts below have failed to rely upon the legal position emerging from the following decisions, wherein it has been held that when it was clear that sample of food article was in a sealed packed condition and when such facts has been reflected in all the documents produced on record then burden if at all fasten upon the accused was considered to have been discharged and thereby that cannot be conviction and similarly when retailer is not the manufacturer of the adulterated food, he cannot be a guilty thereby vendor shall not deemed to have committed any offense. At the same time unless it is told that person who are prosecuted are partners of the firm or a person responsible for carrying on the affairs of the company, he cannot be convicted for an offence committed by a firm or company. In case of [1] State of Gujarat versus Ratilal Maganlal Shah & others reported in 1995 (2) GLR 1542 [2] B.C. Patel, Food Inspector, Vadodara versus Jai Hind Stores & ors. reported in 1998 (2) GLH 866 , [3] State of Gujarat versus Manishbhai Narandas Karia- 2007 (1) FAC 96, retailer cannot be convicted under the provision of the Prevention of Food Adulteration Act; vendor cannot be held guilty for sale of adulterated food article if he purchases the same from a manufacturer and stores and sells such food article in the same condition; once it is established that the sample food article was in a packed sealed condition, protection under section 19(2) of the Prevention of Food Adulteration Act becomes available; and if the accused is a retailer and not manufacturer of Chilly powder, no offence of food adulteration can be said to have been committed. 9. Even provision of Section 19(2) of the Prevention of Food Adulteration Act, 1954 is quite clear wherein it is provided that a Vendor shall not be deemed to have committed offence pertaining to the sale of any adulterated or misbranded article of food if he proves, that he purchased the article of food from its manufacturer or some one else and that the article of food, while in his possession was properly stored and that he has sold it in the same state as he purchased it. 10. 10. Therefore, though the provision of law is quite clear and well settled by catena of judgments, the trial Court has been technical in convicting the accused only on the ground that he could not produce the bill of purchase of material at the time of collection of sample. However, it cannot be ignored that there is no allegation at all even by the complainant or even by the manufacturer that sample in question has been tampered with or any other material is added in the sealed package by the present petitioner. Therefore, it was unwarranted on the part of both the Courts below to presume something which is neither pleaded nor submitted by the prosecution. I have reason to say so, because in fact the perusal of complaint itself makes the picture clear wherein practically it is the statement of the complainant, the Food Inspector himself that sample has been collected from petitioner wherein accused No. 2 is owner of the shop from where sample was collected and that they have purchased such material from the firm namely "Bajrang Masala" though accused No. 3 was owner of such firm at Mehsana. Therefore, there is no case of the complainant himself starting from the complaint itself regarding adulteration by the present petitioner and the sample is sealed packet purchased by the petitioner from its original manufacturer being accused No. 3, therefore, there is no reason to deviate from such facts already disclosed in the complaint, only because prosecution submits differently. 11. In addition to such technical and legal issue even if we examine the available evidence on record, it becomes clear that there is no reliable and clinching evidence beyond reasonable doubt to confirm that petitioner has committed the offence as alleged for which he has been convicted. 12. The Food Inspector has deposed at Exh. 27 as PW 1. In his deposition, he has admitted that he has seized three packets of Chilly powder and sealed it in airtight bottles in a condition in which the collected packet was seized and that petitioner has conveyed him that they have purchased it from the manufacturer of "Bajrang Masala". 13. He also deposed that in absence of accused No. 3, present petitioner was looking after the routine work and therefore, even petitioner No. 1 is simply a care taker and not owner or even seller of the Chilly powder in question. 13. He also deposed that in absence of accused No. 3, present petitioner was looking after the routine work and therefore, even petitioner No. 1 is simply a care taker and not owner or even seller of the Chilly powder in question. He also confirms that based upon such intimation they have called upon the "Bajrang Masala", Limbdi, for testing of the seized Chilly powder whereas in cross-examination he admits that at the time of collection of sample, accused No. 2 was not present also and that he has never asked or met accused No. 2 and that he has never taken signature of accused No. 2 in any proceedings regarding collection of sample or further investigation. He also admits that bill of purchase of such material does not disclose the name of accused No. 2 and such bill cannot be relied upon. 14. Therefore, so far as such part of evidence is concerned, both the Courts below failed to realize that non-disclosure of name of purchasers in such bills cannot be treated as evidence for confirming that petitioner has committed offence of adulteration. More particularly, when complainant admits that during his investigation he came to know that petitioner has purchased the packed Chilly powder from accused No. 3. However, he has not seen even respondent No. 3 carrying out such packing and thereby there is no actual evidence regarding adulteration except the report of Analyst. He also admits that he has not taken signature on the packed seized material and thereby there is no evidence to confirm that the packing of Chilly powder seized by the complainant was in fact seized from the shop of the present petitioner only. Complainant also admits that during investigation, he came across the judgment and order dated 11.01.1991 confirming that petitioner has purchased such packets from "Bajrang Masala" and that it was not manufactured and packed only by the present petitioner. 15. Whereas, petitioner has put-forwarded defence that accused having complained about the activities of complainant, Food Inspector, they are being harassed by him. When such allegations are put forward, it is the duty of the complainant to disprove such fact but except denial no other proof is put forth in this regard. The complainant has failed to clarify his stand so far as such grievance is concerned. When such allegations are put forward, it is the duty of the complainant to disprove such fact but except denial no other proof is put forth in this regard. The complainant has failed to clarify his stand so far as such grievance is concerned. Therefore, there is reason to believe that prosecution has failed to prove the commission of offence as alleged and that too only by petitioner. Rest of the panch witnesses have turned hostile and, therefore, practically trial Court has convicted the petitioner only based upon deposition of the complainant, without any corroborating and reliable evidence to confirm that petitioner has ever adulterated packed Chilly powder in sealed packings. Even helper of the complainant being PW No. 3 at Exh. 74 is not supporting the complainant regarding his activities. In view of above facts and circumstances of the case and discussion it is quite clear that both the Courts below have been hyper technical in confirming the conviction of the petitioner only because of analytical report which confirms that there is some additional percentage of insoluble material which can be diluted in HCL only which is 2.77 insoluble instead of 1.30 was also insoluble other extract which is 14.00% instead of 12.00 with pink coloured oil soluble coal tar dye. The fact remains that based upon such evidence that accused No. 3 cannot be convicted, accused No. 1 and 2 certainly get benefits of provisions of law and decisions hereinabove when they are just vendor who are dealing with the packed pouches of Chilly powder and when there is no allegation or evidence regarding any activity of adulteration which resulted into different analytical report as discussed herein-above. 16. In view of the above facts and circumstances of the case, it becomes clear that both the Courts below have failed to appreciate the evidence and law applicable to such case in proper perspective which certainly results into irregularity and illegality when Vendor of the sealed packing has been convicted only for his trading activity though there is no evidence regarding adulteration if any which has been done by them. Therefore, there is reason to interfere with the impugned orders even in such revisional jurisdiction because the above referred irregularity is serious and it is illegality also. 17. In view of the above facts and circumstances of the case, the revision application is allowed. Therefore, there is reason to interfere with the impugned orders even in such revisional jurisdiction because the above referred irregularity is serious and it is illegality also. 17. In view of the above facts and circumstances of the case, the revision application is allowed. The impugned orders dated 19.01.1996 passed by the J.M.F.C., Viramgam in Criminal Case No. 669 of 1991 and order dated 25.10.2007 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) in Criminal Appeal No. 5 of 1996 are hereby quashed and set aside which results into acquitting the petitioner from all the charges levelled against him. Therefore, his bail bond shall stand cancelled. 18. The revision application stands disposed of as allowed in aforesaid terms. Rule is made absolute to the aforesaid extent.