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2024 DIGILAW 2120 (GUJ)

State Of Gujarat v. Laxmanbhai Arjanbhai Gehani

2024-12-03

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. This appeal under Section 378(4) of the Criminal Procedure Code is directed against the impugned judgment and order dated 30.11.2012 passed by the learned Additional Judicial Magistrate First Class, Kapadvanj (hereinafter be referred to as “the trial Court”) whereby the trial Court has acquitted the accused for the offences punishable under Sections 2(1A) (A) (M) (L), 2(IS)(K), Section 7(1)(5) and Section 16(1A) of the Prevention of Food Adulteration Act (hereinafter be referred to as “the Act”) and the Prevention of Food Adulteration Rules (hereinafter be referred to as “the Rules”). 2. Brief facts of the present case, in nutshell, are as under:- 2.1 According to the complainant Food Inspector Shri Kanjibhai Virabhai, he was performed his duties as Food Inspector with the State of Gujarat, has visited the place of respondent – original accused situated at Azad Chowk, Kapadvanj. It is the case of the prosecution that during his visit of the shop of the respondent – accused, it was found that the respondent - accused was dealing in business of tobacco articles i.e. Tulsi Mix Gutka, Manekchand, Mahak, Zatpat, Kuber, Vimal etc. According to the complainant, after giving intimation in Form No.6, he has purchased six packets of “Tulsi Mix Gutka” by paying cost of Rs.630/- in the presence of the panch witness and after following due procedure as prescribed in the Act and Rules thereof has prepared the panchnama. It is the case of the prosecution that after collecting sample, he sent it to the Public Analyst, Bhuj for the purpose of analyze. It was examined by the officer of the Public Analyst and after analyzing the same, the Public Analyst arrived at the conclusion that the sample, which was purchased by the complainant, was not within the rules as prescribed under the Act and Rules thereof and the same was found to be adulterated. On receipt of report from the Public Analyst, Bhuj, the complainant Food Inspector had obtained permission to prosecute against the accused and after obtaining necessary sanction from the Local Health Authority, the private complaint came to be filed before the Court of learned Judicial Magistrate, First Class, Kapadvanj under Sections 2(1A) (A) (M) (L), 2(IS)(K), Section 7(1)(5) and Section 16(1A) of the Act. It is further the case of the prosecution that after filing of the complaint, notice under Section 13(2) of the Act was served on the accused for the purpose of re-analyze. It is the case of the prosecution that the trial Court has recorded the evidence of the prosecution and after hearing both the sides was pleased to acquit the respondent – accused by judgment and order of acquittal for the alleged offence. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant – State of Gujarat has preferred the present appeal. 4. Heard Ms.Megha Chitaliya, learned Additional Public Prosecutor for the appellant – State of Gujarat and Mr.D. K. Modi, learned advocate for the respondents – accused. 5. It has been submitted by Ms.Megha Chitaliya, learned Additional Public Prosecutor for the appellant – State of Gujarat that trial Court has materially erred in acquitting the accused. She has also submitted that the trial Court has erred in holding that there is breach of requirement of Rule 14 of the Act. She has submitted that there was clear evidence on record to the fact that the sample of “Tulsi Mix Gutka” was adulterated and there is no breach of any provisions of the Act or the Rules on the part of the prosecution. She has submitted that as per the report of the Public Analyst, the same is prohibited and, therefore, this is one of the ground of misbranded of the sample. She has submitted that the trial Court has materially erred in holding that there is non-compliance of Section 13(2) of the Act. She has submitted that the observation of the trial Court that the prosecution has failed to prove that the sample of Gutka was unfit for human consumption and was not eatable is bad in law. She has submitted that if there is breach of the provisions of requirement as per standard laid down under the Rules, then the same breach amounts to adulteration and there is no need to establish that it would be harmful for human consumption. Lastly, she has submitted that the trial Court has materially erred in acquitting the accused. She has prayed to quash and set aside the judgment and order of the trial Court. Lastly, she has submitted that the trial Court has materially erred in acquitting the accused. She has prayed to quash and set aside the judgment and order of the trial Court. 5.1 Ms.Chitaliya, learned Additional Public Prosecutor has submitted that the finding recorded by the trial Court is not sustainable in the eyes of law and the same deserves to be quashed and set aside. She has submitted that though there is specific finding of chemical analysis and the report is positive whereby the prosecution has proved the article adulterated and sub-standard, the trial Court has discarded such facts. She has submitted that the trial Court has committed an error in observing that the notice under Section 13(2) of the Act was not served to the accused as there was no conclusive proof produced on behalf of the appellant. She has submitted that the original complainant was not examined as he left the country and in his absence, the concerned officer was examined before the trial Court and he was not having personal knowledge with regard to the fact that whether the concerned officer has after following due procedure of law, has collected the sample or not. She has submitted that the original sample was collected by Shri R. S. Patel, Food Inspector and Shri Kanjibhai Virabhai, who examined at Exhibit 21 has deposed that he was not having any personal knowledge with regard to collection of the sample and its condition. She has submitted that the sample article was found misbranded and adulterated and, therefore, the accused are liable to be punished for the alleged offence. 5.2 In support of her submissions, Ms.Chitaliya, learned Additional Public Prosecutor has relied upon the decisions of this Court in the case of Purushottambhai Mulajibhai Hadiyal Versus State Of Gujarat reported in 2006 (3) GLH 719 and in the case of Pepsi Co. India Holdings Ltd Thro its Officer Vinay Mathur Vs. State of Gujarat reported in 2015 (2) GLR 1183 and has submitted that in view of the aforesaid decisions, the present appeal deserves to be allowed and the impugned judgment and order of acquittal deserves to be quashed and set aside. 6. Per contra, Mr.D. K. Modi, learned advocate for the respondent – accused has vehemently submitted that the trial Court has properly appreciated the evidence on record and has rightly acquitted the accused from the charges levelled against them. 6. Per contra, Mr.D. K. Modi, learned advocate for the respondent – accused has vehemently submitted that the trial Court has properly appreciated the evidence on record and has rightly acquitted the accused from the charges levelled against them. Mr.Modi, learned counsel has argued purely on legal contention with regard to non-compliance of the provisions of the aforesaid sections of the Act and the Rules framed thereunder. He has submitted that the prosecution witness Kanjibhai Virabhai in his examination has admitted that he has no any personal knowledge with regard to collection of the sample since he was not present at the time of collecting the sample by the then Mr.Patel, Food Inspector and whether the sample article was collected after completing the formalities under the statute and the Rules framed thereunder and it was sent to the chemical analyst for the purpose of analysis. He has submitted that said witness Kanjibhai has admitted that the authorization was given to Mr.Patel for lodging the complaint and he was not any authorization in his name and the authorization was continued in the name of Mr.Patel. He has submitted that the witness has admitted that he sent the notice under the provisions of Section 13(2) of the Act to the accused and the notice was served or not, received or not or collected the material or not, he did not know. According to him, there is no merits in the appeal and it should be dismissed and the judgment and order of acquittal should be confirmed. 6.1 In support of his submissions, Mr.Modi, learned counsel has relied upon the following decisions:- (1) Rameshwar Dayal Vs. State of U.P., (1996) SCC (Cri) 75; (2) Hindustan Lever Ltd Vs. Food Inspector and another, (2006) 1 SCC (Cri.) 288; (3) State of Gujarat Vs. Jitendrakumar Takchandani Hotchandani and others in Criminal Appeal No. 1860 of 2008 dated 21.09.2015; (4) State of Gujarat Vs. Dineshchandra Laljibhai Kanabar and another in Criminal Appeal No. 1131 of 2011 dated 27.04.2018; (5) State of Gujarat – Vs. Mahendrasinh Natubha Jadeja and others in Criminal Appeal No. 967 of 2013 dated 08.04.2019; (6) Ujjaval Agro Centre and others Vs. State of Gujarat and another, 2017 (1) Cr.L.R. (Guj) 54;] (7) Narayana Prasad Sahu Vs. Dineshchandra Laljibhai Kanabar and another in Criminal Appeal No. 1131 of 2011 dated 27.04.2018; (5) State of Gujarat – Vs. Mahendrasinh Natubha Jadeja and others in Criminal Appeal No. 967 of 2013 dated 08.04.2019; (6) Ujjaval Agro Centre and others Vs. State of Gujarat and another, 2017 (1) Cr.L.R. (Guj) 54;] (7) Narayana Prasad Sahu Vs. The State of Madhya Pradesh, 2021 (2) FAC 637; 6.2 Mr.Modi, learned counsel has emphasized upon the observation made by this Court in the case of Jitendrakumar Takchandani Hotchandani (supra) and submitted that in this case the article referred is identical and it is relating to the Kuber Gutka. He has submitted that in case of “pan masala” there was no standard fixed in the statute and, therefore, in the analysis report, the magnetism carbonate found in the sample as it was not specified in the Act or appendix B and C and when there is no specific limit was prescribed in the limit it cannot be said that it is an adulterated or misbranded. 7. It is well settled by catena of decisions that the an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court 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. 8. Further, 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. Further, while exercising the powers in appeal against the order of acquittal, the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the Appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the Appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether the accused is connected with the commission of the crime with which he is charged. 9. At this juncture, it is relevant to refer to the decision of this Court (Coram: Hon’ble Mr.Justice Rajesh H. Shukla) in the case of Jitendrakumar Takchandani Hotchandani (supra), this Court has held and observed in para-4 as under:- “4. Learned advocate Shri Anand Bhatt referred to the papers and the record and submitted that the judgment and order recording acquittal is just and proper. He pointedly referred to the testimony of of PW-3 at exh. 89 and submitted that in the cross-examination it has been admitted by the clerk of the office of the Food & Drugs that he was not having complete address of the company and therefore he cannot say whether it has been served to Kuber Tobeko Company or not and no acknowledgment is placed on record. Learned advocate Shri Bhatt referred to the provisions of sec. 13(2) of the Act and submitted that it is well-settled that it confers a valid right in favour of the accused, which is denied. He submitted that the respondent is only a distributor and he would be entitled to have the benefit of sec. 13(2) which is required to be interpreted liberally. He also referred to the judgment of this High Court reported in 1985 (II) PFA Cases 220 and submitted that this provision is required to be interpreted and the copy of the report is required to be given to the person from whom the sample is collected. He also pointedly referred to the observations including the observations made in this judgment that when there is breach of sec. 13 qua one of the accused, others will also be entitled to get the benefit of the same.” 10. He also pointedly referred to the observations including the observations made in this judgment that when there is breach of sec. 13 qua one of the accused, others will also be entitled to get the benefit of the same.” 10. It is pertinent to refer to Rule 62 of the Rules, which reads as under:- “Rule 62 permits the use of anticaking agents only in table salt, onion powder, garlic powder, fruit powder and soup powder. The term table sale has neither been defined nor elaborated anywhere under the act and its rules including para A.15 of Appendix B. This makes the situation murky. Other technical anomalies have been pointed out by Mahindru pp 118, 141 to 143. Prosecutions have been launched in gutka pan masala cases under the allegation that these products contained magnesium carbonate as an anticaking agent which under the above rule is not permissible. According to para A.30 of Appendix B, pan masala may contain, apart from tobacco (not mentioned because gutka masala has not been covered as a food) betel nut, lime, coconut, cardamom, spices, dry fruits etc. Betel nuts contain 66 to 83 mg, cashew nut 349 mg, coconut 355 mg, walnuts 302 mg, coconut meal decoiled 355 mg, cardamom 173 mg, coriander seeds 239 and cumin seed, 475 mg/100 g magnesium of the food article. Calcium carbonate from lime is already there which itself is an anticaking agent. Now one part of magnesium is equivalent to 3.5 parts of magnesium carbonate, then under rule 64 C also, the presence of magnesium carbonate is admissible and not an offence." 11. In the case of State of Gujarat Vs. Nineshchandra Laljibhai Nanabar and others dated 27.04.2018 rendered by this Court (Hon’le Mr.Justice G. R. Udhwani) in Criminal Appeal No. 1131 of 2011 wherein on similar facts and provisions, the prosecution has initiated the proceedings against the concerned accused alleging that the packaged Gutkha “Mini Manekchand” containing magnesium carbonate. This Court while deciding the appeal has elaborated and analyzed the provision of Rule 62. While referring the book authored by S. N. Mahindru [First Edition: 2013] has held and observed in paras – 4, 5, 6 and 7 as under:- “4. This Court while deciding the appeal has elaborated and analyzed the provision of Rule 62. While referring the book authored by S. N. Mahindru [First Edition: 2013] has held and observed in paras – 4, 5, 6 and 7 as under:- “4. Learned counsel for the respondents has also successfully pointed out, by relying upon the Food Analysis Theory and Practice by S.N. Mahindru [ First Edition : 2003] that Magnesium and carbonate are natural ingredients of tobacco and betel nut and if the said food articles is put into the chemical process for obtaining Gutka, it would chemically react to produce MgCo3 . The observations are thus in this regard: "Prosecutions have been launched in gutka pan masala cases under the allegation that these products contained magnesium carbonate as an anticaking agent which under the above rule is not permissible. According to A.30 of Appendix B, pan masala may contain, apart from tobacco (not mentioned because gutka masala has not been covered as a food) betel nut, lime, coconut, cardamom, spices, dryfruits etc. Betel nuts contain 66 to 83 mg, cashewnut 349 mg, coconut 355 mg, walnuts 302 mg, coconut meal deoiled 355 mg, cardmom 173 mg, coriander seeds 239 and cumin seed, 475 mg/100g magnesium of the food article. Calcium carbonate from lime is already there which itself is an anticaking agent. Now one part of magnesium is equivalent to 3.5 parts of magnesium carbonate, then under rule 64 C also, the presence of magnesium carbonate is admissible and not an offence." 4.1 Thus, it appears that Rule 62 which prohibits the use of anticaking agent except where specifically permitted, would not apply to those cases where it has not been added as anticaking agent, but is merely an inherent ingredient as obtained by necessary process required to produce the food article in question. It is not the prosecution case that the above referred anticaking agent was added by the respondents. In absence of such a case, opponents cannot be held liable for breach of Rule 62. 5. In view of the above findings emerging on the record of the case, it is unnecessary for this court to enter into other contentious issues involved in the case except to say that in absence of the mention of the method used by the public analyst, for his opinion, his report would be inadmissible in evidence. 5. In view of the above findings emerging on the record of the case, it is unnecessary for this court to enter into other contentious issues involved in the case except to say that in absence of the mention of the method used by the public analyst, for his opinion, his report would be inadmissible in evidence. [ See judgement in case of D.S. Parmar and Santosh Kodomal & 1 in Criminal Appeal No. 241 of 2007 decided on 15.02.2018]. 6. It has been noticed, more often then not, that despite the court's pointing out the technical flaws by which the accused gets benefited, though otherwise the food article may be substandard or injurious to public health, no heed is being paid and the similar blunders keep on repeating. In the instant case, the firm concerned who allegedly manufactured the Gutka was not arraigned as an accused but only its nominee. Nominee independently, without fixing the liability on the principal would not be liable under the Act. Also, the public analyst has not placed with his report, the relevant facts to prove the document though such requirement is pointed out in umpteen number of cases. [see judgement in D.S. Parmar and Santosh Kodomal & 1 (supra)]. 7. No doubt, opinion of the expert is admissible in evidence without examining the expert; at the same time there is no bar in law to examine an expert. Therefore, cases necessitating the oral evidence of an expert must be segregated from other cases. In the cases where the expert does not come up with full and necessary relevant details as pointed out in D.S. Parmar and Santosh Kodomal and 1 (supra), It would be beneficial to examine the expert; particularly when state or other public institutions or public bodies seek to rely upon the report of an expert for, they are not only obliged to justify the facts of the case, but are also answerable to public at large. Therefore where the dedicated efforts can bring in the necessary and relevant material in evidence, there is no reason for the state or public bodies not to make an effort in that direction. State and public authorities cannot afford to lose a case on technicalities or on avoidable lapses. The expert's written opinion deficient in material particulars can always be explained through his oral testimony. State and public authorities cannot afford to lose a case on technicalities or on avoidable lapses. The expert's written opinion deficient in material particulars can always be explained through his oral testimony. In a case where entire or substantial case rests on the opinion of the expert which may be deficient in necessary relevant particulars, it would be desirable to examine him to bring on record the full and necessary relevant facts.” 12. In the case of Rameshwar Dayal (supra), the Hon’ble Supreme Court has held and 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 a later stage if material on record supports the same. In the result the conviction and sentence are set aside.” 13. Mr.Modi, learned counsel while referring the decision of the Hon’ble Supreme Court in the case of Narayana Prasad Sahu (supra) for non-compliance of Section 13(2) of the Act, has submitted that the report of analysis contains that the sample was received after expiry of the date. When the sample was found misbranded, but the shelf-life of the sample was expired prior thereto and, therefore, the respondents have deprived of their legitimate right to get the sample analyzed by other independent laboratory and they have caused great prejudice. When the sample was found misbranded, but the shelf-life of the sample was expired prior thereto and, therefore, the respondents have deprived of their legitimate right to get the sample analyzed by other independent laboratory and they have caused great prejudice. In the report at page No.165 of the paper-book, it was mentioned that the sample was collected on 17.09.2002 and the expiry date of the sample was December 2002 and informed the accused about the same thereafter and, therefore, the accused have deprived their legitimate right to re-analyze and reexamine and, therefore, in the identical fact that the shelf-life of the sample was already got over and, therefore, the respondents have lost their right to re-analysis. This aspect was decided by the Hon’ble Supreme Court in the case of State of Haryana Vs. Unique Farmaid Private Limited reported in (1999) 8 SCC 190 , wherein the Hon’ble Supreme Court has held and observed in paras – 11 and 12 as under:- “11. Sub-Section (1) of Section 30 which appears to be relevant only prescribes in effect that ignorance would be of no defence but that does not mean that if there are contraventions of other mandatory provisions of the Act, the accused have no remedy. Procedure for testing the sample is prescribed and if it is contravened to the prejudice of the accused, he certainly has right to seek dismissal of the complaint. There cannot be two opinion about that. Then in order to safeguard the right of the accused to have the sample tested from central Insecticides Laboratory, it is incumbent on the prosecution to file the complaint expeditiously so that the right of the accused is not lost. In the present case, by the time the respondents were asked to appear before the court, expiry date of the insecticide was already over and sending of sample to the central Insecticides Laboratory at that late stage would be of no consequence. This issue is no longer res integra. In The State of Punjab vs. National Organic Chemical Industries Ltd. [JT 1996 (10 SC 480] this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the central Insecticides Laboratory and adduce evidence of the report so given in his defence. In The State of Punjab vs. National Organic Chemical Industries Ltd. [JT 1996 (10 SC 480] this Court in somewhat similar circumstances said that the procedure laid down under Section 24 of the Act deprived the accused to have sample tested by the central Insecticides Laboratory and adduce evidence of the report so given in his defence. This court stressed the need to lodge the complaint with utmost dispatch so that the accused may opt to avail the statutory defence. The court held that the accused had been deprived of a valuable right statutorily available to him. On this view of the matter, the court did not allow the criminal complaint to proceed against the accused. We have cases under the Drugs and Cosmetics Act, 1940 and the Prevention of Food Adulteration Act, 1954 involving the same question. In this connection reference be made to decisions of this court in State of Haryana vs. Brij Lal Mittal & Ors. [19885 SCC 343] under the Drugs and Cosmetics Act, 1940; Municipal Corporation of Delhi vs. Ghisa Ram [ AIR 1967 SC 970 ]; Chetumal vs. State of Madhya Pradesh & Anr. [ 1981 3 SCC 72 ]; and Calcutta Municipal Corporation vs. Pawan Kumar Saraf & Anr. [ 1999 2 SCC 400 ] all under the Prevention of Food Adulteration Act, 1954. 12. It cannot be gainsaid, therefore, that the respondents in these appeals have been deprived of their valuable right to have the sample tested from the central Insecticides Laboratory under Ss. (4 of Section 24 of the Act. Under Ss. (3 of Section 24 report signed by the Insecticide analyst shall be evidence of the facts stated therein and shall be conclusive evidence against the accused only if the accused do not, within 28 days of the receipt of the report, notify in writing to the Insecticides Inspector or the court before which proceedings are pending that they intend to adduce evidence to controvert the report. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. In the present cases Insecticide Inspector was notified that the accused intended to adduce evidence to controvert the report. By the time the matter reached the court, shelf life of the sample had already expired and no purpose would have been served informing the court of such an intention. The report of the Insecticide Analyst was, therefore, not conclusive. A valuable right had been conferred on the accused to have the sample tested from the Central Insecticides Laboratory and in the circumstances of the case accused have been deprived of that right, thus, prejudicing them in their defence.” 14. The para-12 of the said decision in the case of Unique Farmaid Private Limited (supra) has been referred to and relied upon by this Court in the case of Ujjaval Agro Centre and others Vs. State of Gujarat and another reported in 2017 (1) Cr.L.R. (Guj.) 54. 15. So far as the ‘Gutkha’ is concerned, it is not included as food article and, therefore, learned counsel for the accused has submitted that there is no prescribed norms for food articles i.e. Gutkha as it is not a food article which is not mentioned in the schedule. In support of his submissions, Mr.Modi, learned counsel has relied upon the decision of this Court in the case of Mahendrasinh Natubha Jadeja (supra) wherein this Court has held and observed in para – 8 as under:- “8. Heard learned advocates for the parties and perused the record of the case, including the impugned judgment and order. Even, learned APP is unable to dispute that gutka is not mentioned, defined or included under the Act and nowhere standards/parameters were prescribed in Appendix – B appended to the Act. In addition to the above, nowhere in the report of Public Analyst, it is mentioned that there was breach of any of the standards prescribed under the Act and Rules. Thus, the decision taken by the learned trial court to acquit the accused from the charges leveled against them cannot be said to be in any manner contrary to law, which requires any interference by this Court.” 16. So far as the satisfaction of the provisions of Section 13(2) of the Act is concerned, it appears from the record that there is no cogent evidence to show that the accused was served with reanalysis report. So far as the satisfaction of the provisions of Section 13(2) of the Act is concerned, it appears from the record that there is no cogent evidence to show that the accused was served with reanalysis report. It also reveals from the evidence that there is no signature of the accused on the registered A.D. Receipt, alleged to have been of the cover, wherein Public Analyst report under Section 13(1) of the Act was sent to the accused. In absence of the positive evidence for compliance of the provisions of Section 13(2) of the Act, no presumption can be drawn against the accused. 17. On perusal of the impugned judgment and order of the Appellate Court, it appears that on re-appreciation of the evidence on record, it has been held by the trial Court that the prosecution could not establish that the sample was misbranded. The trial Court has narrated the fact on the point of breach of mandatory provisions of Section 13(2) of the Act and Rules. On perusal of the impugned judgment and order of acquittal, it clearly transpires that the trial Court has considered the evidence in its true and proper perspective and has committed no mistake of facts and law in acquitting the accused. 18. In light of the above, the present appeal is devoid of merits and it deserves to be dismissed. Resultantly, it is dismissed. The impugned judgment and order dated 30.11.2012 passed by the learned Additional Judicial Magistrate First Class, Kapadvanj is hereby confirmed. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.