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2016 DIGILAW 2125 (GUJ)

STATE OF GUJARAT v. BACHUBHAI SHIVLAL SHAH

2016-10-17

R.P.DHOLARIA

body2016
JUDGMENT : R.P. DHOLARIA, J. 1. This is an appeal preferred by the State of Gujarat, under Section 378 (3) of the Criminal Procedure Code, 1973, against the judgment and order of acquittal dated 23.11.2005, recorded by the Second Additional Senior Civil Judge and Judicial Magistrate First Class, Mehsana, in Criminal Case No. 667 of 1986. 2. It is the case of the prosecution that on 28.8.1985 at about 9.45 a.m. complainant-Food Inspectors-M. Rao visited shop of Shivlal Lavjibhai at village Jotana along with PanchSomabhai Ramdas Patel and informed the accused No. 1 about taking sample of peanut oil (Singtel). Upon inquiry from accused No. 1, it was found that there was 15 tins of Bopal Brand peanut oil in his shop. Thereafter, the complainant took sample of peanut oil from packed tin of peanut oil in the presence of panch witness and sent it to public analyst for the purpose of analysis and after receiving report from public analyst, he came to know that sample is adulterated. Thus, according to the case of prosecution, respondents-accused by selling adulterated peanut oil has committed breach of provision of Section 7 of the Prevention of Food Adulteration Act, 1954, which is punishable under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 and therefore, a complaint was lodged against the respondents in the Court of Judicial Magistrate, First Class, Mehsana. 3. However, after conclusion of trial and hearing, the learned Magistrate vide judgment and order dated 23.11.2005 acquitted the present respondents-accused persons from the offences for which they were charged. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that the learned trial Court has failed to appreciate the evidence on record and has wrongly recorded the order of acquittal. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of acquittal is required to be reversed as such. 6. Mr. L.B. Dabhi, learned APP appearing for the State has reiterated and urged the grounds mentioned in the memo of appeal. 6. Mr. L.B. Dabhi, learned APP appearing for the State has reiterated and urged the grounds mentioned in the memo of appeal. Learned APP has taken this Court through the paper book and evidence on record and argued that the judgment and order of the trial Court is against the provisions of law as the trial Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself, it is established that the prosecution has proved all the ingredients of alleged charges against the present respondent. Learned APP has also taken this court through the oral as well as the entire documentary evidence. It is further submitted by learned APP that the judgment and order of acquittal passed by the learned trial Judge is based on inferences not warranted by facts of the case and also on presumption not permitted by law. It is also submitted by him that the learned trial Judge has not properly appreciated oral as well as documentary evidence and thereby committed error by acquitting the respondents for the alleged breach of offences under Section 7 of the Prevention of Food Adulteration Act, 1954, which is punishable under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954, which requires to be reversed as such and the accused is required to be convicted. Mr. Dabhi, learned APP has also drawn attention of this Court to the impugned judgment as well as record and proceeding of learned trial Court and stated that the order of acquittal recorded by the learned trial Court is required to be converted into conviction as such. 7. On the other hand, Mr. Vasant Shah, learned advocate appearing for respondent No. 1 argued that the learned trial Court has elaborately dealt with the evidence on record and rightly recorded the finding and acquitted the accused from the charges levelled against him. He has further argued that the learned trial Court acquitted the respondent as the prosecution failed to prove compliance of mandatory provisions of Rule 14 of the Prevention of Food Adulteration Rules, 1955. He has drawn attention of this Court to the entire evidence on record and the judgment delivered by the learned trial Court and contended that the entire procedure of sealing is proved to be defective during the course of the trial. He has drawn attention of this Court to the entire evidence on record and the judgment delivered by the learned trial Court and contended that the entire procedure of sealing is proved to be defective during the course of the trial. Consequently therefore, benefit extended by the learned trial Court in accordance with the law which calls for no interference. 8. This Court has heard Mr. L.B. Dabhi, learned APP for the appellant-State and Mr. Vasant Shah, learned advocate appearing for respondent No. 1. 9. Having heard learned counsel for the respective parties, having gone through the impugned judgment and record and proceeding of the case, indisputably, in the examination-in-chief, complainants. M. Rao has stated that he had drawn the sample in the a utensil (bowl) and thereafter it was filled in three different dry and clean bottles. In the cross-examination he has clearly admitted that the said bottles were kept in the office by his helper on the day prior to the inspection and his helper had dried and cleaned the same but he has not deposed that such procedure was carried out in his presence. Indisputably, the helper in whose custody the bottles were kept has not been examined by the complainant. In that view of the matter, the present case is covered by the judgment rendered by this Court in the case of State of Gujarat vs. Babu Lavji Jalia, 1995 (2) GLH 722 , wherein at Para-4, this Court held as under: “Having regard to the facts and circumstances, this Court has found that Rule 14 of the Prevention of Food Adulteration Rules, 1955 (‘the Rules’ for short) is mandatory and it is the duty of the prosecution to prove by leading positive evidence that bottles were cleaned and dried before the sample was taken by the food inspector. It is, therefore, the duty of the prosecution to prove beyond reasonable doubt that all ingredients or provisions that are to be proved as per law and especially provisions which are mandatory in nature have got to be proved beyond reasonable doubt. The manner of sending the sample for analysis is prescribed in Rule 14. It is, therefore, the duty of the prosecution to prove beyond reasonable doubt that all ingredients or provisions that are to be proved as per law and especially provisions which are mandatory in nature have got to be proved beyond reasonable doubt. The manner of sending the sample for analysis is prescribed in Rule 14. It is very clear from said Rule that the sample of food for the purpose of analysis should be taken in cleaned and dry bottles or jars or in the other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and should be carefully sealed. The prosecution main witness food inspector himself has not stated in his evidence about compliance of the provisions of Rule 14. Rule is held to be mandatory and there is no dispute about this fact. Noncompliance of the mandatory rule is fatal to the prosecution. Since this appeal against acquittal order can be disposed of only on this count, it would not be necessary to enter into the merits of other points on which acquittal is founded upon.” 10. In this view of the aforesaid factual position, the complainant has failed to prove that he has complied with the mandatory provision of Rules 14 of the Prevention of Food Adulteration Rules, 1955. Therefore, the benefit extended to the respondents is in accordance with law, which calls for no interference. 11. It is also a settled legal position that in acquittal appeals, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. 12. In above view of the matter, this Court is of the considered opinion that learned trial court was completely justified in acquitting the respondent of the charges leveled against them. This Court finds that the findings recorded by learned trial court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 13. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. This Court is, therefore, in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by learned court below and hence finds no reasons to interfere with the same. 13. In the result, this appeal fails and accordingly, it is dismissed. Bail bond, if any, stands cancelled. R&P to be sent back to the trial Court, forthwith.