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2024 DIGILAW 274 (GUJ)

State of Gujarat v. Shaileshbhai Mansukhlal Shah

2024-02-09

NISHA M.THAKORE

body2024
JUDGMENT : NISHA M. THAKORE, J. 1. This is an appeal at the instance of the State under Section 378 (3) of Criminal Procedure Code, against the judgment and order of acquittal dated 31.12.2019 passed by learned Additional Chief Judicial Magistrate, Rajkot (hereinafter “learned Magistrate”) in Criminal Case No. 516 of 1996. By the said judgment and order, the learned Magistrate has acquitted the respondent-accused for the offence alleged under Sections 7 (1) (5) and 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter “the Act”). 2. According to case of the prosecution as alleged in the complaint, on 24.11.1995, the Food Inspector-Mr. K.C. Kumbi under the supervision of Local Health Authority (LHA) had reached the place of offence along with one panch witness Mr. Maheshbhai Laxmanbhai at the premises of respondent/original accused-Mr. Shaileshbhai Mansukhlal Shah at Kadia Line Gondal, District-Rajkot. It is averred that the accused was found conducting the businesses of various food articles lying in his store, which were essentially for human consumption. The Food Inspector had disclosed his identity and had expressed his intention to purchase a sample of turmeric powder from the vendor as lying in the iron jar, which was without any label declaring its contents. The vendor had agreed to such purchase. According to the complainant, the sample was then lifted as per the procedure prescribed under the Food Adulteration Act and the Rules framed thereunder. 2.1 It is contended that each sample was separately packed, fastened, marked and sealed and the documents were prepared at the spot including the Notice Form-VI, even the panchnama was drawn at the spot. It is further claimed that the price of the sample was paid to the vendor. Thereafter, one counterpart of the sample was sent in the intact condition to the Public Analyst’s Office along with two other counterparts along with letter dated 26.12.1995. The said samples were tested by the Public Analyst and upon examination, the samples were found to be adulterated. The reason which was assigned by the Public Analyst in his report, was that artificial colour was not declared as an ingredient in the said sample, which was otherwise found present in the sample. Upon receipt of such note, the Local Health Authority had directed the Food Inspector to proceed with the complaint. The reason which was assigned by the Public Analyst in his report, was that artificial colour was not declared as an ingredient in the said sample, which was otherwise found present in the sample. Upon receipt of such note, the Local Health Authority had directed the Food Inspector to proceed with the complaint. Necessary sanction under Section 20 of the Act was obtained from the Competent Officer, this led to lodging of the complaint before the court of learned Magistrate, Gondal, which was registered as Criminal Case No. 516 of 1996. 2.2 The compliant was filed on 22.04.1996 alleging violation of Sections 2(1-a), (a), (b), (j) and (1) and 7(1)(5) of the Act read with provisions of Section 16 of the said Act. The learned Magistrate proceeded with the complaint while dispensing with the recording of the statement of the public servant, issued summons upon the respondent-accused by order dated 22.04.1996. The accused had appeared before the trial court and had filed an application under Section 13(2) of the Act enforcing his right to get the second opinion as regards the counterpart of the sample to be analyzed from the Central Food Laboratory (CFL). Such application preferred by the respondent-accused was allowed by the trial court and the rest of the counterpart of the sample were sent for further analysis to the office of Central Food Laboratory. The CFL had examined the samples so recovered and had issued certificate on 12.01.2001, thereby opining that the sample was adulterated on the ground that it contained pink and orange shade oil soluble coal tar dyes and the turmeric powder was also adulterated with rice starches. 2.3 Based on the aforesaid report, the trial court proceeded to record the statement of the complainant/PW-1 Food Inspector-Ajrunbhai Kesarbhai Kher. On the basis of his deposition at the precharge evidence stage, the trial court framed charge against the accused for the offence punishable under Sections 2(1-a), (a), (b), (j) and (1) and 7(1)(5) of the Act read with provisions of Section 16 of the said Act. 2.4 The respondent-accused once again was served with the summons, who had appeared before the trial court and had pleaded not guilty for the charges levelled against him and had claimed to be tried. 2.4 The respondent-accused once again was served with the summons, who had appeared before the trial court and had pleaded not guilty for the charges levelled against him and had claimed to be tried. The trial court proceeded with the stage of recording of evidence of the prosecution, whereby the prosecution had apart from examining the complainant, had examined the panch witnesses, who had in fact supported the case of the prosecution. The learned Magistrate after considering the evidence brought on record by the respective parties at the end of the trial, had recorded acquittal of the respondent-original accused. The original accused was acquitted mainly on the ground that the mandatory provisions of Rule 14A of the Rules framed under the Act have not been followed by the Food Inspector. While recording the findings of the fact, the learned Magistrate noted that though sample collection process failed to meet with the required standards, the bottles in which the sample of turmeric powder were collected, were not shaken. The wooden container in which the aforesaid samples were collected, were not sealed. The trial court also noticed that when the search and seizure was carried out, two independent witnesses of the same locality were not present. In such circumstances, the failure to produce key witness at search and seizure, has defeated the case of the prosecution. Having recorded the aforesaid findings, the trial court arrived at a conclusion that the mandatory provisions of Rule 14 of the Act have not been scrupulously followed by the Food Inspector, thereby the prosecution had failed to establish the guilt beyond a reasonable doubt thereby acquitting the respondent-accused for the offence alleged. 3. Heard learned APP Mr. Manan Mehta for the appellant-State and learned advocate Mr. Tushar L. Sheth for the respondent-original accused. The arguments were canvassed by the learned advocates for the respective parties and the matter was kept for orders. 4. Learned APP Mr. Manan Mehta appearing for the appellant-State has invited my attention to the findings and reason assigned by the trial court. Learned APP has relied upon the evidence of the complainant/Food Inspector (PW-1)/Ajrunbhai Kesarbhai Kher at Exh.34, Kalyanbhai Chhotubhai Kunbi (PW-2) at Exh.60 and Maheshbhai L. Dudhatra (PW-3) at Exh.157. 4. Learned APP Mr. Manan Mehta appearing for the appellant-State has invited my attention to the findings and reason assigned by the trial court. Learned APP has relied upon the evidence of the complainant/Food Inspector (PW-1)/Ajrunbhai Kesarbhai Kher at Exh.34, Kalyanbhai Chhotubhai Kunbi (PW-2) at Exh.60 and Maheshbhai L. Dudhatra (PW-3) at Exh.157. While referring to the evidence of the Food Inspector, the learned APP has submitted that the appreciation of evidence of the said witness clearly goes to establish that the muddamal sample was sent to the Public Analyst in sealed condition and in the same manner, the same was also forwarded to the Central Food Laboratory. According to learned APP, the aforesaid samples were tallied with specimen impression or seals applied separately along with copy of memorandum sent with the said samples. The reliance was placed upon the reports issued by the respective laboratories, wherein reference is made to the details of the samples drawn by the Food Inspector. The sample of the Turmeric powder was anaylized and tested by the Public Analyst and the physical examination of such samples indicated that it was free from any in fact insect and mould growth. However, upon further examination, it was confirmed that the sample was adulterated inasmuch as in absence of any details of labels reflecting the contents of the sample, the presence of pink and orange shade oil soluble coal tar dyes were noticed. Apart from the aforesaid colour content, the microscopical examination of the sample reveals the presence of rice starch. It is in this facts, the Public Analyst had arrived at a conclusion that the Turmeric powder was adulterated. 4.1. Learned APP has further submitted that both these reports have been proved and admitted as evidence at Exh.28 Form II and Exh.73 Form III respectively. Learned APP, thereafter, referred to the evidence of the panch witnesses and has submitted that even if the panchas have turned hostile or they do not support the case of the prosecution, their evidence in totality could not have been disregarded by the trial court. The reliance was placed upon the decision of the Hon’ble Supreme Court in the case of State of U.P. vs. Hanif, 1992 (3) SCC 100 and in the case of Prithviraj Dahyabhai Chauhan and Others, 1992 (1) GLR 711 . The reliance was placed upon the decision of the Hon’ble Supreme Court in the case of State of U.P. vs. Hanif, 1992 (3) SCC 100 and in the case of Prithviraj Dahyabhai Chauhan and Others, 1992 (1) GLR 711 . It was further submitted that the accused can be held guilty even on the sole evidence of the Food Inspector, if found to be believable. The reliance was placed upon the panchnama to contend that the sample was drawn in clean and dry vessel and having proved such fact, it can be presumed that there was no violation of Rule 14 of the Act. 4.2 Learned APP appearing for the appellant-State has relied upon the decision of the Hon’ble Supreme Court in the case of State of Gujarat vs. Mananbhai Hasanali, (1999) 2 GLR 1567 . By making aforesaid submissions, learned APP for the appellant-State has urged this Court to quash and set aside the impugned order of acquittal. 5. On the other hand, at the outset, learned advocate Mr. Tushar L. Sheth has invited my attention to the reasons assigned by the learned Magistrate while recording the order of acquittal. By referring to the aforesaid findings as noticed by the learned Magistrate, learned advocate has submitted that no error can be found with the approach of learned Magistrate in arriving at a conclusion that there was violation of Rule 14 of the Rules framed under the Act. 5.1 The attention of this Court was invited to the order dated 31.07.1998 passed by the learned Additional Sessions Judge in the revision preferred by the State challenging the order of the learned Magistrate accepting the application of the respondent-accused of forwarding the sample for second report while exercising his right under Section 13(2) of the Act. On the aspect of compliance of the mandatory provision of Rule 14 is concerned, learned advocate invited my attention to the panchnama drawn by the Food Inspector while collecting the sample of Turmeric powder, which was undertaken. The reliance was placed on the cross-examination of the Food Inspector, wherein the Food Inspector had admitted that the bottles were provided from the office and it was not cleaned by him on the spot while the samples were drawn. This according to the learned advocate goes to root of the matter. 5.2 He has further submitted that in fact, the samples were not steered before collecting. This according to the learned advocate goes to root of the matter. 5.2 He has further submitted that in fact, the samples were not steered before collecting. While referring to the Analyst's report placed on record at Exh.73, learned advocate has submitted that the test which was performed to analyze the solid form of sample i.e. Turmeric powder was by way of microscopic analysis. The same test was applied when it was tested by the second laboratory i.e. Central Food Laboratory, whose report has been placed on record at Exh.28. Thus, it is evident that solid form of sample i.e. Turmeric powder was examined by microscopic test, which is otherwise not approved in law. The reliance was placed on the decision of State of Gujarat vs. Dilipkumar Mangaldas Shah and Others delivered in Criminal Appeal No. 607 of 1999. 5.3 Apart from the aforesaid submission, learned advocate has also contended that once the order of acquittal is passed in favour of the respondent-accused, this Court may not intervene while examining the appeal at the instance of the State under Section 378 (4) of the Cr.P.C. 6. Having heard the learned advocates appearing for the respective parties and having perused the evidence on record as well as taking into consideration the submissions made by learned advocates appearing for the respective parties, as recorded earlier the findings of facts arrived by the learned Magistrate, no perversity or infirmity is pointed out by learned APP for the appellant-State in recording such facts by the learned Magistrate. Upon close examination of the evidence of the complainant along with the panchnama, what is evident is that the bottles, which were used for collection of sample were compromised. It has also transpired from the evidence of the Food Inspector that the sample was collected without shaking the bottle. The jar which was used for sample collection was improperly sealed. In such background of the material, which has come on record, no fault can be found with the findings of the learned Magistrate about violation of provisions of Rule 14 of the Act being scrupulously not followed by the Food Inspector while collecting the sample. Apart from the aforesaid irregularity, specific contention has been raised by the respondent about the microscopic test being applied for examination of the sample, which otherwise is not acceptable in law. 7. Apart from the aforesaid irregularity, specific contention has been raised by the respondent about the microscopic test being applied for examination of the sample, which otherwise is not acceptable in law. 7. In the opinion of this Court, the aforesaid factors are the essential requirements of law to be considered to establish the offence and any failure on part of prosecution pays way of benefit of doubt to be given to the respondent-accused. Considering the fact that the trial court has recorded acquittal in light of reasons assigned, this Court is in complete agreement with the view taken by the learned Magistrate. Hence, the present appeal is not entertained and is hereby dismissed. 8. Record and proceedings, if any, be send back to the concerned court forthwith. Bailable warrant, if any, issued upon respondent-accused stands cancelled.