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2016 DIGILAW 849 (GUJ)

State of Gujarat v. Barkatali Pyarali Khoja

2016-04-19

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. 1. The appellant State of Gujarat has preferred the present appeal under section 378(1)(3) of the Code of Criminal Procedure, 1973 against the judgment and order of acquittal dated 13.1.2006 rendered by learned Presiding Officer, Fast Track Court No. 4, Ahmedabad (Rural) in Criminal Appeal No. 24 of 2000. 2. The short facts giving rise to the present appeal are that the complainant is the Food Inspector who was authorized to collect the sample under the provisions of the Food Adulteration Act, 1954 (for short "the Act"). It is alleged that from the opponents accused the complainant collected sample of edible oil by following mandatory provisions and the sample was forwarded to the Public Analyst. The Public Analyst gave report that the sample of edible oil does not meet with the standard and it is against the Prevention of Food Adulteration Rules (for short "the Rules"). It is alleged that, therefore, the sample of edible oil was adulterated and, thereby, the accused have committed the offence. Hence, the complaint came to be lodged against the respondents accused. 3. In pursuance of the complaint, the summons were issued against the accused and the accused appeared before the learned Magistrate in pursuance of the summons. 3.1 In order to bring home the guilt, the prosecution has examined 3 witnesses and produced various documentary evidences. After recording the evidence, the charge was framed against the accused at Exh. 96. The accused pleaded not guilty to the charge and claimed to be tried. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order convicting the respondents accused. 4. Being aggrieved by the same, respondents accused preferred Criminal Appeal No. 24 of 2000 before learned Appellate Court. Vide judgment and order dated 13.1.2006, learned Appellate Court allowed the appeal and acquitted the respondents accused herein. Being aggrieved by the same, 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 learned Appellate Court has committed an error in holding that approval to launch prosecution was given without any application of mind. Being aggrieved by the same, 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 learned Appellate Court has committed an error in holding that approval to launch prosecution was given without any application of mind. It is further contended that learned Appellate Judge has committed an error in holding that there is violation of provisions of section 13(2) of the Act though notice was received by the authorized person. It is further contended that learned Appellate Court has failed to appreciate the evidence on record in its proper perspective and wrongly acquitted the accused though ample evidence was available on record. It is contended that the impugned judgment and order of Appellate Court is unreasonable, perverse and hence, the impugned judgment and order of acquittal is required to be reversed, as such. 5.1 It is contended by learned APP Mr. Oza that learned Appellate Court has wrongly recorded the order of acquittal believing that the prosecution agency has committed breach of the provisions of Section 13(2) of the Act though notice was addressed to all the five accused named therein and receipt of acknowledgment of Registered AD produced at Exhs.91 to 95 clearly indicates that they have been received by the concerned addressee and though the Appellate Court has believed that addressee have not received the aforesaid notice as well as report of the Public Analyst and thereby the right of the accused getting it analysed by the Central Food Laboratory is prejudiced. Mr. Oza, learned APP has, in fact, reiterated and urged the grounds mentioned in the memo of appeal. He has urged that order of acquittal is required to be reversed and the respondents are required to be convicted, as such. 6. On the other-hand, Mr. D.K. Modi, learned advocate for the respondents accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned Appellate Judge is just and proper. Mr. Modi further submitted that in view of the evidence on record, it cannot be said that the learned Appellate Judge has committed any error in passing the impugned order acquitting the accused. Mr. Modi further submitted that in view of the evidence on record, it cannot be said that the learned Appellate Judge has committed any error in passing the impugned order acquitting the accused. He submitted that non-supply of report of Public Analyst to the accused causes serious prejudice to them and in that case, no conviction can be sustainable and even that plea can be raised at any stage of the proceedings. He further submitted that acknowledgment receipts at Exhs.91 to 95 clearly indicate that recipients of the aforesaid letters, more particularly, he has drawn attention of this Court to Exhs.94 and 95 wherein recipient who has signed is Jayantibhai on behalf of Damodar Oil Mill and that is not due compliance of section 13(2) of the Act as interpreted by this Court in the case of Rajeshkumar Chandulal Shah v. Babubhai Joitaram Patel, reported in 2007(2) FAC 203. In support of his submissions, Mr. Modi has relied upon the decision in the case of Rameshwar Dayal v. State of U.P., reported in 1996 SCC (Cri) 75. 7. This Court has heard Mr. Rutvij Oza, learned APP for the appellant State and Mr. D.K. Modi, learned advocate for the respondents accused. 8. This Court has gone through the paper book as well as the impugned judgments rendered by learned Magistrate as well as learned Appellate Court. 8.1 On over-all appreciation of the facts as well as evidence available on record, it clearly emerges that respondent Nos. 1 to 3 are retailers who are dealing with grocery as well as edible oil, whereas respondent Nos. 4 and 5 appears to be manufacturer as well as nominee of manufacturing unit so far. It also emerges that the complainant who is working as Food Inspector with the Food and Drugs Control Administration Department, State of Gujarat is authorized to take sample in order to have compliance of the provisions the Act. While functioning as Food Inspector on 13.8.1985 at about 5.00 pm, he has visited the shop of M/s. Anwarali situated at Bhindi Bazar, Dhandhuka and obtained the sample of 400 gms groundnut oil from the packed tin of 15 kg in the presence of the witnesses on payment of Rs. 6.80 paise towards price of the same and sent the same to the Public Analyst for analysis. 6.80 paise towards price of the same and sent the same to the Public Analyst for analysis. The Public Analyst reported that the sample groundnut oil does not meet with the standards and it is opined that it is adulterated. Thereafter, the complainant initiated the process to obtain sanction from the competent authority. 8.2 During the course of taking sample of groundnut oil, it was revealed that the retailer has purchased the aforesaid groundnut oil from one M/s. Shivam Oil Company at Surendranagar and hence, the complainant has also obtained the bill issued by M/s. Shivam Oil Company. During the course of the procedure for obtaining sanction, the complainant has also sought for sanction to prosecute aforesaid M/s. Shivam Oil Company as well as its partner as accused. However, the competent authority has granted sanction to prosecute retailer as well as manufacturer and nominee only and left out M/s. Shivam Oil Company and its partner thereof. 8.3 In the case of Rameshwar Dayal (supra), the Honourable Apex Court observed as under. "The matter arises under the Prevention of Food Adulteration Act. The sample taken was found to be adulterated. On the record it appears that the report of the Public Analyst is not supplied to the accused as required under Section 13(2) of the Act. Consequently, he could not get his own sample examined by the Central Laboratory. It is a very valuable right given to him. Rules also provide that such a report should be supplied to the accused within a certain period. The question arose in a similar case where this rule is mandatory or directory. We need not launch into such a discussion in this case. We are satisfied that serious prejudice has been caused to the appellant because of non-supply of the public Analyst's report as required under Section 13(2) of the Act. The High Court having noticed this, yet rejected the plea on the mere ground that such an objection was not raised before the trial court. It is not a question of an objection, but it is a question of prejudice. Such a point can be raised even at later stage if material on record supports the same. In the result the conviction and sentence are set aside. The appeal is allowed accordingly." 9. Indisputably, in the present case, while forwarding intimation under section 13(2) of the Act, letter addressed at Exh. Such a point can be raised even at later stage if material on record supports the same. In the result the conviction and sentence are set aside. The appeal is allowed accordingly." 9. Indisputably, in the present case, while forwarding intimation under section 13(2) of the Act, letter addressed at Exh. 89 was not received by the addressee No. 4 - Gokaldas Savaliya who has been prosecuted as nominee of M/s. Damodar Oil Mill, Junagadh as well as M/s. Damodar Oil Mill, manufacturer of groundnut oil in question. Instead of aforesaid addressee, intimation has been delivered to one Jayantibhai which is not an intimation to respondent Nos. 4 and 5 which cannot be termed to be valid service of intimation as provided under section 13(2) of the Act. Therefore, in view of the ratio laid down by the Honourable Apex Court in the case of Rameshwar Dayal (supra), in absence of proper intimation as provided under section 13(2) of the Act, they cannot be convicted as such. In this view of the matter, this Court is of the considered opinion that the judgment rendered by learned first Appellate Court is in accordance with law, evidence and factual scenario emerging out from the record of the case which calls for no interference by this Court. 10. 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. 11. 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 him. 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. 12. In the result, this appeal fails and accordingly, it is dismissed. R & P to be sent back to the trial Court, forthwith.