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2024 DIGILAW 2186 (GUJ)

State Of Gujarat v. Shah Narendrabhai Manharlal

2024-12-11

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : (Hemant M. Prachchhak, J.) 1. This appeal under Section 378(4) of the Criminal Procedure Code is directed against the impugned judgment and order dated 22.8.2006 passed by the learned Judicial Magistrate First Class (hereinafter be referred to as “the trial Court”), Padra in Criminal Case No. 1548 of 1991 whereby the trial Court has acquitted the respondent herein-accused for the offences punishable under Sections 2(1) (A) (M), Section 7(1)(5) and Section 16(1)(A)(I) of the Prevention of Food Adulteration Act (hereinafter be referred to as “the Act”). 2. Brief facts of the present case, in nutshell, are as under:- 2.1 It is the case of the prosecution that the Food Inspector Shri P.R. Panchal, who was serving with office of the Assistant Commissioner, Food and Drugs Control Admn. Vadodara has visited place of respondent accused and after introducing himself as a Food Inspector, has purchased 600 Gms. sample of Turmeric Powder in the presence of panch witness at the rate of Rs.16/- per Kg., for the purpose of analysis by paying cash of Rs.9.60 ps. It is further case of prosecution that the respondent has also issued Cash Memo No. 1331 dtd. 2.1.1991 towards payment of cash on which also, signatures of panch as well as complainant was obtained. 2.2 Thereafter, the Food Inspector has divided said sample in equal three parts and after properly sealing and packing, one part was sent to Public Analyst, Vadodara and other two parts of the same were sent to Local Health Authority, Vadodara through Helper Shri K.P. Prajapati on 2.1.1991. It is further case of prosecution that on the basis of report of the Public Analyst which was received on 23.1.1991, it was found that muddamal sample which was drawn by complainant Food Inspector is adulterated. Hence, necessary sanction was obtained from the competent authority and on receipt of sanction the complaint was filed against respondent accused in the trial Court. 2.3 On the basis of aforesaid complaint, case was registered and numbered as Criminal Case No. 1548/1991 and summons was issued against the respondent and the respondent has appeared before the Court. The charges were read over to respondent, wherein he has not pleaded guilty to the charges levelled against him and claimed to be tried. 2.3 On the basis of aforesaid complaint, case was registered and numbered as Criminal Case No. 1548/1991 and summons was issued against the respondent and the respondent has appeared before the Court. The charges were read over to respondent, wherein he has not pleaded guilty to the charges levelled against him and claimed to be tried. Before trial Court, the prosecution has examined complainant and panch witnesses as well as relied upon the documentary evidence in support of oral evidence laid by prosecution. 2.4 After hearing both the parties and after evaluating the evidence placed on record, the trial Court has passed impugned judgment and order dated 22.8.2006 in Criminal Case No. 1548 of 1991 and acquitted present respondent accused from the charges levelled against him. 2.5 Being aggrieved and dissatisfied with the impugned judgment and order of acquittal, the appellant – State of Gujarat has preferred present appeal. 3. Heard Ms.Jyoti Bhatt, learned Additional Public Prosecutor for the appellant – State of Gujarat and Mr. Mansuri, learned Counsel for Mr. M.T.M. Hakim, learned advocate for the respondent – accused. 4. It has been submitted by Ms.Jyoti Bhatt, learned Additional Public Prosecutor for the appellant – State of Gujarat that the prosecution has proved the charges against present respondent original accused by producing cogent and material evidence by examining the complainant witness and producing the relevant documentary evidence however, without considering the same in its true and proper perspective, the trial Court has committed serious error of law and on facts by passing impugned judgment and order of acquittal. She has relied upon the Certificate of Test of Analysis by the Central Food Laboratory, Ghaziabad Exh.4 dated 25.6.1991 and more particularly, she has emphasized upon clause No.8 which reads as under:- "(8) Test for presence of oil soluble coal tar colour: Positive. The sample shows presence of one oil soluble coal tar colour of pink shade" 4.1 Relying upon the said report, learned APP submitted that the said report clarified that the sample collected by the complainant is found adulterated and therefore, the trial Court ought to have appreciated the said fact in its true and proper spirit while passing the impugned judgment and order of acquittal and ought to have convicted the accused for the alleged offence. She has further submitted that merely because the other independent witnesses were not examined by the prosecution or not produce any other relevant material, the case of the prosecution cannot be discarded only on ground that the complainant is the only witness, who had deposed against the present respondent, as he is being an interested witness and therefore, under such circumstance, the order impugned is bad in law. 4.2 Learned APP has further submitted that so far as all the other aspects are concerned, the trial Court has held in favour of present appellant however, merely on account of non compliance of the provision of Rule 16 (B), acquitted the present respondent by ignoring and overlooking the other aspects of the matter and thus, the impugned judgment and order of trial Court is not in consonance with the settled legal principle. 4.3 Learned APP has further submitted that the trial Court has committed patent illegality by considering the fact that the prosecution failed to establish the fact that the article which was taken from the shop of the respondent was actually for the purpose of sale or not and whether it is for the purpose of human consumption or not and therefore, the impugned order passed by trial Court is completely illegal and unjust. 4.4 In support of her submissions, Ms.Bhatt, 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. 5. On the other hand, Mr. Mansuri, learned Counsel for Mr. M.T.M. Hakim, learned Counsel for the respondent accused has submitted that the trial Court has not committed any error or any patent illegality while passing the impugned judgment and order. He has further submitted that the sample taken from the shop of the respondent was not for the purpose of human consumption but it was kept for the purpose of “Pooja Vidhi”. He has further submitted that the sample taken from the shop of the respondent was not for the purpose of human consumption but it was kept for the purpose of “Pooja Vidhi”. He has submitted that in fact, that specific defence was raised by the respondent from beginning and prosecution has failed to establish this fact by producing any cogent and material evidence. He has further submitted that even from the evidence of the complainant also it was not proved that the said turmeric power which was kept in shop of the respondent was for human consumption and therefore, under such circumstance, the trial Court is right and justified in passing the impugned judgment and order of acquittal. 5.1 Learned Counsel for the respondent has also submitted that the prosecution has not examined any independent witness to prove the charges against present respondent and thus, the impugned judgment and order of acquittal deserves to be confirmed and present Appeal deserves to be dismissed. 5.2 Learned Counsel for the respondent has also submitted that it was rightly observed by the trial Court that the prosecution has committed breach of mandatory provision of Rule16 (1B) and therefore, after relying upon several judgments of this Court and the Hon'ble Apex Court referred in the impugned judgment, the trial Court has rightly passed the order of acquittal and there is no any illegality or perversity in the judgment and order of trial Court. 5.3 In view of the above, Mr. Mansuri, learned Counsel urges before the Court that the present Appeal may be dismissed and the impugned judgment and order may be quashed and set aside. 6. I have perused the material available on record as well as the documents appended thereto. I have also gone through the record of the Appeal and impugned judgment and order of acquittal passed by the trial Court. I have also examined the evidence recorded by the trial Court. 7. The issue which requires to be determined by this Court is that whether the trial Court has committed any illegality or any irregularity or any perversity, in the impugned judgment and order, while considering the evidence oral as well as documentary and while appreciating the evidence and arguments advanced by both sides?. 8. For the aforesaid aspect, it is required to be looked at the case of prosecution. 8. For the aforesaid aspect, it is required to be looked at the case of prosecution. It is the case of the prosecution that on 2.1.1991, the complainant Food Inspector went to the shop of present respondent and after disclosing his identity had taken the sample of turmeric power, which was contained in one iron tin and from there, he had purchased 600 gms. sample of Turmeric Powder in the presence of panch witness at the rate of Rs.16/- Per Kg., for the purpose of analysis by paying cash of Rs.9.60 ps.. Thereafter, he had separated the said Turmeric Power in three equal parts and put same in the glass bottle and after applying proper seal, sent the same to the laboratory for the purpose of analyzing. 9. It appears that during the said procedure he had not collected proper material or evidence to the effect that whether the said article is for the purpose of selling or whether it is for the purpose of human consumption, as it was a case of the respondent that he was not selling the said article for the purpose of human consumption and it was used for the purpose of performing the rituals. 10. In view of the said fact, the prosecution prima facie unable to come across the first hurdle that whether the said article is for the human consumption or not and therefore, the trial Court has rightly appreciated the evidence and after considering relevant fact come to a conclusion that the prosecution failed to establish this fact beyond reasonable doubt. 11. In criminal jurisprudence, the duty cast upon the prosecution is that the prosecution has to prove the case beyond reasonable doubt. Herein the present case, the prosecution has not fulfilled the first criteria. Further, in the evidence of the complainant and more particularly in cross-examination, he has clearly admitted that neither he has verified the fact nor he is having any evidence or any knowledge and therefore, from bare reading of the evidence of the complainant, the trial Court has rightly come to a conclusion that the prosecution has failed to establish this fact and has rightly passed the order of acquittal. 12. Simultaneously, it was also established from the record that the prosecution has not examined any other independent witness and no any material come on record. 12. Simultaneously, it was also established from the record that the prosecution has not examined any other independent witness and no any material come on record. Further, by examining independent witness, the prosecution could have established the said fact, but it was not established by leading any cogent and material evidence, therefore, the trial Court has not committed any error. 13. So far as the observation made by trial Court with regard to Rule 16(B) is concerned, it is settled legal principle that it is mandatory provision and it is required to be fulfilled by the prosecution. The trial Court by referring a decision of this Court and the Hon’ble Apex Court on the subject has rightly passed the impugned judgment and order of acquittal which is in my view deserves to be confirmed and no interference is required to be called for in the impugned judgment and order of acquittal. 14. At this stage, it is appropriate to take into account the observations made by this Court in case of State of Gujarat vs. Patel Oil Mill Depot and other reported in 1987 1 FAC 219 wherein this Court while referring the judgment of this Court in case of Jethalal Lailubhai vs. Baroda Municipal Corporation and other reported on 1979 2 FSE 83 has observed as under:- “6. Mr. D.K. Shah has, in this connection, first of all strongly relied on Jethalal Lailubhal vs. Baroda Municipal Corporation and another, 1979 (11) FAC 83 where a single Judge of this High Court in terms held that rules 16(b) and 16(c) were mandatory. My learned brother D.P. Desai who delivered the said judgment has made the following important observations at page 451:- "The first question for determination is whether the provisions rule 16(b) and (c) are mandatory. There can be no difficulty cons of point. The object of these provisions is to see that the samples sent for analysis are doubly secured. This is, inter alia, with a view to prevent their being tempared with during transit. It is obvious that an accused person can be convicted on the basis of the report of the public analyst to whom the sample in question is sent. Therefore, it is necessary in order to protect the interest of the accused to see that the sample sent for analysis is properly secured in order to prevent its being tempered with. It is obvious that an accused person can be convicted on the basis of the report of the public analyst to whom the sample in question is sent. Therefore, it is necessary in order to protect the interest of the accused to see that the sample sent for analysis is properly secured in order to prevent its being tempered with. The nonperformance of the duty to carry out these double safeguards may result in injustice to the accused. The language of clauses (b) and (c) of Rule 16 in itself shows that the Rule making authority intended to provide for a double safeguard in the manner of packing and sealing". 7. Mr. Shah has also relied on a recent unreported decision of this court delivered by Divan, C.J. and the observations relied upon appear in para 4 of the said judgment. They read thus:- (vide Criminal Revision Application No. 447 of 1978 decided on 8-2-79):- "I have carefully gone through the evidence and I find that nowhere has the complainant, the food inspector, stated that he had complied with all the requirements of the Rules about taking of the samples and sending the samples to the Public Analyst or the Director of Central Food Laboratory. Though the complainant, food inspector, has described in elaborate details all that he did at the time of taking samples, he has not mentioned specifically that the knot of the thread by which the wrappings were secured had been properly sealed or not nor has he mentioned any where that the container, that is, the tumbler in which the sample was taken was clean and dry. These requirements of the rules have been prescribed with a view to see that injustice is not done to any particular accused who is alleged to have committed an offence punishable under the provisions of the Prevention of Food Adulteration Act, 1954. The mandatory requirements of the procedure regarding the sealing of the bottles and regarding the container in which the milk was poured by the accused have not been proved to have been complied with nor is there any statement to the effect that all the requirements of the sections and the rules were complied with in the instant case. The mandatory requirements of the procedure regarding the sealing of the bottles and regarding the container in which the milk was poured by the accused have not been proved to have been complied with nor is there any statement to the effect that all the requirements of the sections and the rules were complied with in the instant case. In the absence of any such general statement or in the absence of specific details regarding the compliance with Rule 16(1)(c) of the Prevention of Food Adulteration Rules and as the requirements of the container being dry and clean have not been shown to have been complied with, the prosecution cannot be said to have established its case against the accused beyond reasonable doubt". It would be thus seen that the requirements under Rules 16(1) (a) and 16(1)(c) are held to be mandatory by this court in these two decisions, I am in respectful agreement with these decisions. 15. Thus, there is no room for presumption under Section 114 of the Evidence Act with regard to the requirements under rule 16(b) of the Rules, and on the contrary, as definite evidence shows, this requirement was not fulfilled and there is, therefore, clear breach of the mandatory provisions of rule 16(b) which alone would be sufficient to entitle the accused to an order of acquittal. 16. With regards to the requirement of rule 16(c), there is no general statement by the food inspector, nor any other material on record showing any statement to the effect that the food inspector had complied with all the requirements of the said rule about packing of the sample, nor is there any specific statement either in the evidence of the food inspector concerned nor in the concerned panchnama that this requirement was complied with and, therefore, as per the ratio laid down by Divan, C.J. in criminal revision application No.447 of 1978, in the absence of any such general or specific statement regarding compliance with rule 16 (1)(c) of the rules, the prosecution cannot be said to have established its case against the accused beyond reasonable doubt.” 15. In the decision in case of Gangadhar Yashvant Ramekar vs. Mukeshbhai B. Shah and others reported in 199(2) GCD 1292 in paragraph No.12 has held as under:- “12. In the decision in case of Gangadhar Yashvant Ramekar vs. Mukeshbhai B. Shah and others reported in 199(2) GCD 1292 in paragraph No.12 has held as under:- “12. Now, therefore, comes the question whether, on merits, the prosecution has been able to establish the case against the accused persons. 12.1 In this regard, it may be noted that the evidence of the complainant, at Ex. 31, if perused, indicates that he had no personal knowledge about the cleaning of bottles in which the samples were taken. He did not have any information or knowledge as to who cleaned those bottles and when. It would, therefore, be a matter of doubt whether the bottles were really cleaned or not. When the bottles were shown to the Panch witness, it transpires from the evidence that the cork was closed and, therefore, in light of the decision of this High Court in the case of Sudhirchandra B. Joshi v. Arvindkumar Naranbhai Patel and Ors. Criminal Appeal No. 1013 of 1988, delivered on 12th July, 1995, the requirements of Rule 14 cannot be said to have been complied with. In the said decision, it was observed that the person who cleaned the bottles was not examined and there was satisfactory evidence to show that the mandatory requirements were not complied with and, therefore, the benefit was given to the accused persons relying upon the decision of this High Court in the case of M.B. Risaldar v. Radheshyam as reported in 1980(2) GLR 136 . The facts of the present case are identical as can be seen from the deposition of the complainant” 16. Now, so far as the Appeal under Section 378 of the Cr. PC against the order of acquittal is concerned, the Appellate Court has ample power to reexamine, reevaluate and re-look the evidence of the witnesses and if ultimately the appellate court found that there was any illegality or any perversity in the judgment recorded by the Special Court, then the appellant court can certainly exercise the jurisdiction and reverse the findings recorded by the Special Court. However, in the present case there is no any illegality or any perversity found in the judgment and order of the trial Court. 17. It is also now well settled that while exercising powers under Section 378 of Cr. However, in the present case there is no any illegality or any perversity found in the judgment and order of the trial Court. 17. It is also now well settled that while exercising powers under Section 378 of Cr. P.C., if the trial/Special Court while passing the order has committed any illegality or any perversity or has exceeded the jurisdiction, unless and until such facts come on record, the Court is very slow while dealing with an acquittal appeal. The Hon’ble Apex Court has in a series of judgments enunciated the principles while exercising jurisdiction under Section 378 against acquittal, the power of the Appellate Court is inasmuch as reappreciate the evidence, view or re-consider the evidence and if the Court finds that there is any illegality or any irregularity in the judgment then in that case only, the Court has power to entertain the appeal and interfere with the order of acquittal. The scope and principles are enunciated by the Hon’ble Apex Court in case of Chandrappa and others Vs. State of Karnataka reported in (2007) 4 SCC 415 , more particularly paragraphs 42 and 43, which was subsequently reaffirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State of Bihar and another, reported in [2022] 3 SCC 471, wherein, the Hon’ble Apex Court has enunciated the general principles in case of acquittal, more particularly in paragraph 26 the general principles are set out by the Hon’ble Apex Court based upon various decisions of the Hon’ble Apex Court. Then in case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka, reported in AIR 2024 SC 2252 = (2024) 8 SCC 149 , the Hon'ble Apex Court has dealt with the similar issue, more particularly, in paragraph Nos. 37 to 40. Hence, I am in complete agreement with the findings recorded by the trial Court. 18. It is also worthwhile to refer to the recent decision of the Hon’ble Supreme Court in the case of Ramesh vs. State of Karnataka, reported in [2024] 9 SCC 169, wherein the Hon’ble Supreme Court has held and observed in paras-20 and 21 as under:- “20. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus: “42. At this stage, it would be relevant to refer to the general principles culled out by this Court in Chandrappa and others vs. State of Karnataka , regarding the power of the appellate Court while dealing with an appeal against a judgment of acquittal. The principles read thus: “42. …. (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, 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. (5) 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. 21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of this Court pointed out that it would be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weighty grounds from the record for discarding the reasons of the Trial Court in order to be able to reach a contrary conclusion of guilt of the accused. It was further observed that, in an appeal against acquittal, it would not be legally sufficient for the High Court to take a contrary view about the credibility of witnesses and it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the Trial Court to reject their testimony. This was identified as the quintessence of the jurisprudential aspect of criminal justice. Viewed in this light, the brusque approach of the High Court in dealing with the appeal, resulting in the conviction of Appellant Nos. 1 and 2, reversing the cogent and well-considered judgment of acquittal by the Trial Court giving them the benefit of doubt, cannot be sustained.” 19. The Court has framed general guild lines and principles while exercising the power under Section 378 of the Cr.P.C. against the judgment and order of the acquittal and under the general guild lines issued by the Apex Court, this Court is of the opinion that present appeal does not deserve to be entertained and the same requires to be dismissed. 20. Further, on perusal of the impugned judgment and order of the trial Court, it clearly transpires that the trial Court has taken into consideration all the facts while acquitting the accused. It also appears from the impugned judgment and order that the trial Court has appreciated the entire evidence in its true perspective and has come to the right conclusion in acquitting the accused. 21. Considering the above referred decisions and considering the facts of the present case, the present appeal fails and is hereby dismissed. The impugned judgment and order dated 22.8.2006 passed by the learned Judicial Magistrate First Class, Padra in Criminal Case No. 1548 of 1991 is hereby confirmed. Bail bond, if any, furnished by the respondents accused stands cancelled. Record and Proceedings, if any, be sent back to the concerned Trial Court forthwith.