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Gujarat High Court · body

2025 DIGILAW 950 (GUJ)

State of Gujarat v. Ismilebhai Habibbhai Dhuka

2025-09-01

S.V.PINTO

body2025
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant – State under Section 378 (1)(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the impugned judgment and the order passed by the learned 5 th Additional Chief Judicial Magistrate, Palanpur (hereinafter referred to as ‘the learned Trial Court’) in Criminal Case No.8131 of 1993 on 03.03.2011, whereby, the learned Trial Court has acquitted the respondent-accused from the offences punishable under Sections 2 (ia)(a)(b)(c), 7(i), 7(v) and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ‘the Act’). 1.1. The respondents are hereinafter referred to as ‘the accused’ as they stood in the rank and file in the original case, for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing of the present appeal are as under: 2.1. On 29-06-1993, at around 12:00 hours, the complainant Amratbhai Govindbhai Patel - Food Inspector, visited M/s. Rahimi Kirana Stores situated in village Gola, Taluka Palanpur, District Banaskantha. The accused no.1 was present in the shop and was selling groceries and other items. The Food Inspector inquired from him about the ownership of the shop and it was found that the accused no.2 was the owner, and after the due procedure, the complainant, Food Inspector Amratbhai Govindbhai Patel took 375 grams loose groundnut oil from a 15 kilogram tin of groundnut oil, from which, it was being sold. The groundnut oil was divided in three parts and placed in three glass bottles and all the samples were properly packed and one of the sample was sent to the Public Analyst at Vadodara and the remaining two samples were sent to the Local Health Authority, Vadodara. After the report of the Public Analyst was received, it was found that the sample did not conform to the standards and provisions laid down under the prevention of Food Adulteration Rules, 1955, and after the due procedure, the complainant filed the complaint before the Court of Chief Judicial Magistrate, Palanpur, which was registered as Criminal Case No.8131 of 1993. 2.2. The accused were duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 2 07 of the Code. 2.2. The accused were duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the police papers were provided to the accused as per the provisions of Section 2 07 of the Code. As the case was a private warrant triable case, the complainant Amratbhai Govindbhai Patel stepped into the witness box and deposed on oath at Exh.11 and produced documentary evidences at Exh.12 to Exh.35. Considering the evidence on record, a charge was framed by the learned Trial Court at Exh.38 and the statements of the accused were recorded at Exh.39 and Exh.40 respectively, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3. After the evidence of the complainant was closed, the further statement of the accused under Section 313 of the Code were recorded wherein in the accused denied the evidence on record. After hearing the arguments of the learned APP and learned advocate for the accused and after perusing the documents on record, the learned Trial Court, by the impugned judgment and order, was pleased to acquit the accused for the offences punishable under Sections 2 (ia)(a)(b)(c), 7(i), 7(v) and 16 of the Act. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant – State has filed the present appeal mainly stating that the impugned judgment and order of acquittal passed by the learned Trial Court is contrary to law, evidence on record and principles of natural justice. The learned Trial Court has erred in evaluating the evidence on record of the case and without appreciating the evidence in its real perspective, acquitted the accused. There are direct and indirect evidence connecting the respondent with the crime which are produced in the Court and in spite of the fact, the learned Trial Court, without appreciating oral as well as documentary evidence on record of the case, straight way arrived at conclusion that the prosecution has failed to prove the case beyond reasonable doubt. There are direct and indirect evidence connecting the respondent with the crime which are produced in the Court and in spite of the fact, the learned Trial Court, without appreciating oral as well as documentary evidence on record of the case, straight way arrived at conclusion that the prosecution has failed to prove the case beyond reasonable doubt. The learned Trial Court has erred in not considering the ratio laid down by the judgment of the Apex Court which are applicable to the facts of the present case and the impugned judgment and order is perverse and suffering from legal and factual error apparent on the record. The learned Trial Court has erred in not considering the evidence of the complainant who has fully supported the case of the prosecution. The learned Trial Court has passed the impugned judgment and order of acquittal is without giving any cogent and convincing reasons, illegal, invalid and improper, and therefore, the same requires to be quashed and set aside. 4. Heard learned APP Ms.C.M.Shah for the appellant – State and learned advocate Mr.Abdul H. Chhoriya for the respondents – accused. Perused the impugned judgment and order of acquittal and have re-appreciated the entire evidence of the prosecution on record of the case. 5. Learned APP Ms.C.M.Shah for the appellant – State has taken this Court through the entire evidence produced by the prosecution and has vehemently argued that the learned Trial Court has not appreciated the evidence properly and the prosecution has produced cogent evidence to prove the case and has successfully proved the case against the accused but the learned Trial Court has not considered the same and has acquitted the accused. The judgment and order of acquittal passed by the learned Judge is contrary to law, evidence on record and principles of justice. The judgment and order of acquittal passed by learned Judge is based on inferences, not warranted by facts of the case and also on presumptions, not permitted by law. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence and impose maximum sentence on the accused. 6. Learned APP has urged this Court to quash and set aside the impugned judgment and order of acquittal and to find the accused guilty for the said offence and impose maximum sentence on the accused. 6. Learned advocate Mr.Abdul H. Chhoriya for the respondents – original accused has submitted that the learned Trial Court has appreciated all the evidence in true perspective and has not committed any error in acquitting the accused. Therefore, no interference of this Court is required in the impugned judgment and the order of acquittal passed by the learned Trial Court and has urged this Court to reject the appeal. 7. It is a settled principle of law that in an appeal against acquittal, the Appellate Court is circumscribed by limitation that no interference has to be made in the order of acquittal unless after appreciation of the evidence produced before the learned Trial Court, it appears that there are some manifest illegality or perversity which could not have been possibly arrived at by the Court. It is also a settled principle that there is no embargo on the Appellate Court to review the evidence but, generally the order of acquittal shall not be interfered with as the presumption of innocence of the accused is further strengthened by the order of acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case of the prosecution i.e. (i) guilt of the accused and (ii) his innocence, the view, which is in favour of the accused, should be adopted, and if the trial Court has taken the view in favour of the accused, the Appellate Court should not disturb the findings of the acquittal. The Appellate Court can interfere with the judgment and order of acquittal only when there are compelling and substantial reasons and the order is clearly unreasonable and where the Appellate Court comes to conclusion that based on the evidence, the conviction is a must. 8. To prove the case against the accused, the complainant Amratbhai Govindbhai Patel stepped into the witness box and who deposed at Exh.11. 8. To prove the case against the accused, the complainant Amratbhai Govindbhai Patel stepped into the witness box and who deposed at Exh.11. The complainant has narrated the entire procedure that was undertaken by him while taking the sample on 29.06.1993 and has stated that he had taken the loose groundnut oil in a steel vessel, which was cleaned by a dry cloth and the sample was thereafter divided in three parts and placed in three glass bottles, which were clean, moistureless, dry and colorless and the bottles were cleaned by a dry cloth. The bottles were properly sealed and sent to the Public Analyst. The complainant has produced his Certificate at Exh.12, copies of the Gazette at Exh.13 and Exh.14. Form-VI as per Rule 2 at Exh.15, the receipt of Rs.12/- paid at Exh.16, the label that was affixed on the samples at Exh.17, the panchnama at Exh.18, the letter, by which, the sample was sent to the Public Analyst, Food and Drugs Laboratory, Vadodara at Exh.19, the Registered Post Acknowledgment Due at Exh.20, Memorandum sent to the Public Analyst - Form-7 at Exh.21, Registered Post Acknowledgment Due at Exh.22, letter of the Public Analyst that the sample was received at Exh.23, the letter by which the remaining two parts of sample were sent to the Local Health Authority at Exh.24, the covering letter of the Public Analyst along with which the report was sent at Exh.25, the report of the Public Analyst at Exh.26, the details of sample at Exh.27, letter informing the Local Health Authority about the sample along with the other documents and seeking for sanction to file the complaint at Exh.28, the sanction order to file the complaint at Exh.29, letter to the Local Health Authority informing the details of the accused to send the notice under Section 13(2) at Exh.30, notice sent to the accused by the Local Health Authority at Exh.31 and 32, letter of Local Health Authority that the notice has been received by the accused along with the R.P.A.D. slips at Exh.33 and the R.P.A.D. slips at Exh.34 and 35. As per the report of the Public Analyst at Exh.26, the iodine value as per the PFA limits is 85 to 99, but the iodine value found in the sample was 103.05 and the sample had tested positive for Ammonium Myelodate Test for castor oil and the TLC Test for castor oil whereas the PFA limits are negative. During the cross- examination by the learned advocate for the accused, the witness has stated that the sample was of a groundnut oil and the entire procedure was noted in the panchnama. In the report of the Public Analyst at Exh.26, it is stated that “I further certify that I have caused to be analysed the aforementioned sample” and this means that the sample was not analysed by the Public Analyst himself, but was analysed by the Assistant Public Analyst (Junior Scientific Officer), and as per the report, the sample was not analysed by the Public Analyst. The sample was received at the Public Analyst on 02.07.1993, was caused to be analysed on 06.07.1993, the signature of the Public Analyst was affixed on 19.07.1993 and the report is dated 21.07.1993. At the time of taking of the sample, the accused no.2 was not present at the shop and only on the basis of the say of the accused no.1, the accused no.2 was joined as the owner of the shop and the complainant did not enquire whether the accused no.2 was, in fact, the owner of the shop or not. The complainant did not verify about the license and the complaint or the panchnama does not state that prior to taking the sample, the entire contents of groundnut oil in the 15 kg. tin was properly stirred and made homogeneous. 8.1. PW-2 Adambhai Abdulbhai Dhukka examined at Exh.41 is the panch witness and he has not supported the case of the prosecution. During the cross-examination, the witness has stated that he has a shop next to “Rahimi Kirana stores” and he did not see how the sample was taken by the Food Inspector. After the sample was taken, he was merely called and asked to affix his signature and he did not dictate the panchnama and the Food Inspector did not give him the panchnama to read and did not read out the panchnama to him, and hence, he does not know what is mentioned in the panchnama. 9. After the sample was taken, he was merely called and asked to affix his signature and he did not dictate the panchnama and the Food Inspector did not give him the panchnama to read and did not read out the panchnama to him, and hence, he does not know what is mentioned in the panchnama. 9. On minute appreciation of the entire evidence of the prosecution, as per the case of the prosecution, the Food Inspector Amratbhai Govindbhai Patel had gone to the shop of the accused on 29.06.1993 at around 12:00 hours in the noon and had taken the sample of loose groundnut oil from the 15 kg. Tin, which was being sold by the accused no.1. In the entire evidence, it appears that the sample was not taken as per the rules and the mandatory provisions were not followed. The Food Inspector has admitted that prior to taking of the sample, he did not mix the groundnut oil and did not take the sample from a homogeneous mixture. Moreover, there is nothing on record to suggest that the vessel, in which, the sample was taken, and thereafter, the bottles, in which, the sample was placed were clean, dry, moistureless, odourless and colourless and there is no independent evidence regarding the same. There is nothing on record to suggest that the Food Inspector had showed the vessel and the bottles to the accused and had followed the mandatory provisions of Rule-14 of the P.F.A. Rules. During the cross examination, the complainant has admitted that he has not verified regarding the ownership of the shop and has admitted that the bottles were cleaned on the previous day in the office. There is nothing on record to suggest that the bottles, in which, the samples were placed were clean and dry when, in fact, the prosecution should adduce positive evidence that the bottles were cleaned by the Food Inspector himself or were cleaned under his supervision. The learned Trial Court has discussed the entire evidence and concluded that the mandatory provisions of taking the sample have not been followed properly. 10. In view of the above, the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. 10. In view of the above, the learned trial Court has appreciated the entire evidence in proper perspective and there does not appear to be any infirmity and illegality in the impugned judgment and order of acquittal. The learned Trial Court has appreciated all the evidence and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges leveled against them. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed by the learned trial Court and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. 11. The impugned judgment and the order passed by 5 th Additional Chief Judicial Magistrate, Palanpur in Criminal Case No.8131 of 1993 on 03.03.2011 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.