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2016 DIGILAW 966 (GUJ)

STATE OF GUJARAT v. SHANTILAL KANIYALAL PANCHAL

2016-05-03

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 29.12.2005 rendered by learned Judicial Magistrate, First Class, Matar in Criminal Case No.3 of 1992. 2. The short facts giving rise to the present appeal are that on 20.5.1991 at about 12.10 hours, the complainant obtained edible oil sample for analysis in the presence of the witness from accused Shantilal Keshavlal Panchal – Vishwakarma Kirana Stores by intimating the same in writing to the accused on payment of Rs.16/- in cash. Thereafter, the said sample of edible oil was packed in three bottles and obtained the signatures of the seller and witness. Out of the said three bottles, one bottle was sent to the Public Analyst, Vadodara for analysis and on the same day i.e. on 20.5.1991 remaining two sealed bottles were sent to the competent authority at Nadiad. Thereafter, the Public Analyst forwarded his report to the competent authority at Nadiad which was also received by the complainant. In the said report, it is stated that the sample edible oil is adulterated because of the presence of caster oil which is in breach of the provisions of the Food Adulteration Act, 1954 (for short “the Act”) and the Rules framed thereunder. 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 respondent 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 2 witnesses and produced various documentary evidences. After recording the evidence, the charge was framed against the accused at Exh.49. 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 acquitting the respondent accused. 4. Being aggrieved by the same, the appellant State has preferred the aforesaid Criminal Appeal before this Court. 5. 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 learned trial Court has failed to appreciate that there is evidence on record wherein it is clearly mentioned that notice under section 13(2) of the Act was issued to the respondent accused which he has also received. It is further contended that though in the aforesaid notice, there was typographical error and instead of court of Judicial Magistrate, First Class, Matar, the court of Judicial Magistrate, First Class, Balasinor was mentioned and the said aspect has been appreciated by learned trial Court that it is not sufficient information due to which learned trial Court has recorded the finding that in doing so, the prosecuting agency has committed breach of mandatory provisions of section 13(2) of the Act and thereby wrongfully acquitted the respondent accused. It is further contended that learned trial 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 trial 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 trial Court has wrongly recorded the finding that prosecuting agency has committed breach of the provisions of section 13(2) of the Act though notice was already served upon the respondent. 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 respondent is required to be convicted, as such. 6. On the other-hand, Mr. Shukla, learned advocate for the respondent accused has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Mr. Shukla further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused. Mr. Shukla further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in passing the impugned order acquitting the accused. He submitted that though notice under section 13(2) of the Act was issued to the respondent, but the information supplied in the aforesaid notice was wrong as the prosecuting agency has not at all launched any prosecution against the present respondent in the court of learned Judicial Magistrate, First Class, Balasinor. In his submission, therefore, the respondent could not approach and avail his right of getting the second sample examined through the Central Food Laboratory and, therefore, the respondent is deprived of his valuable right of examining the second sample, as such. In support of his submissions, Mr. Shukla has relied upon the decision in the case of Rameshwar Dayal Vs State of UP, reported in 1996 SCC (Cri) 75. 7. This Court has heard Mr. Rutvij Oza, learned APP for the appellant State and Mr. Shukla, learned advocate for the respondent accused. 8. This Court has minutely gone through the paper book as well as the impugned judgment rendered by learned Magistrate. 8.1 On over-all appreciation of the facts as well as evidence available on record, it clearly emerges that the prosecution has issued the notice through the Local Health Authority and Assistant Commissioner, Nadiad on 10.1.1992 to the present respondent under section 13(2) of the Act. The said notice is produced at Exh.58. On going through the said notice, more particularly, paragraph 3, it clearly reveals that Food Inspector Shri C.N. Mehta has launched prosecution against the present respondent in the court of learned Judicial Magistrate, First Class, Balasinor on 8.1.1992 under the provisions of the Act. It was also informed that the first sample which was sent to the Public Analyst was found to be adulterated. Hence, if the respondent is not accepting the report of the Public Analyst, he has right to re-examine the second sample through the Central Food Laboratory within ten days from receipt of the aforesaid notice. 8.2 Indisputably, the prosecution was never launched against the present respondent in the court of learned Judicial Magistrate, First Class, Balasinor. Hence, if the respondent is not accepting the report of the Public Analyst, he has right to re-examine the second sample through the Central Food Laboratory within ten days from receipt of the aforesaid notice. 8.2 Indisputably, the prosecution was never launched against the present respondent in the court of learned Judicial Magistrate, First Class, Balasinor. Therefore, the aforesaid notice at Exh.58 served upon the present respondent becomes redundant and virtually, the valuable and statutory right of the respondent of getting the second sample examined through the Central Food Laboratory is denied. In view of the aforesaid factual position, finding recorded by learned trial Court that the prosecution has committed breach of mandatory provisions of section 13(2) of the Act does not call for any interference. 8.3 Even otherwise also, learned advocate Mr. Shukla has drawn attention of this Court to Exh.32 – report issued by the Public Analyst, Food and Drugs Laboratory, Vadodara dated 14.6.1991 wherein it can be seen that on analysis of groundnut oil, parameters are within the prescribed range under the Act, however, serial Nos.7 and 9 of the said report indicate the presence of caster which is also very surprising. Normally, if any water in negligible quantity be added in groundnut oil, in that event, tendency of water is that it is not mixing up with the groundnut oil and it will float over oil. As a result thereof, even if groundnut oil is analysed, range would come within the parameters prescribed, but that may not be such in the cases wherein any caster oil is added in the groundnut oil and in such cases, adulteration of caster oil is bound to be reflected. However, in the aforesaid analysis report at Exh.32, it clearly indicates that parameters of groundnut oil are within the range prescribed under the Act though traces of caster were found from it. Under the circumstances, it is very difficult to arrive at the finding that there is any adulteration of caster oil in the groundnut oil. 9. 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. 10. 9. 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. 10. 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. 11. In the result, this appeal fails and accordingly, it is dismissed. R & P to be sent back to the trial Court, forthwith. Appeal dismissed.