Dineshbhai Gopichand Keshwani vs State Of Gujarat

                                                                             NEUTRAL CITATION




   R/CR.MA/19526/2013                           ORDER DATED: 04/08/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/CRIMINAL MISC.APPLICATION NO. 19526 of 2013
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          DINESHBHAI GOPICHAND KESHWANI & 1 other(s)
                             Versus
                  STATE OF GUJARAT & 1 other(s)
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Appearance:
MR UTPAL M PANCHAL(1075) for the Applicant(s) No. 1,2
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                         Date : 04/08/2023

                           ORAL ORDER

[1.0] By way of present application, the applicants have sought to invoke jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") by praying for following reliefs:

"(A) Your Lordships may be pleased to quash the complaint being CR No.I-68/2011 filed before the Pandesara Police Station, Surat;

(B) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the investigation into the complaint being CR No.I- 68/2011 filed before the Pandesara Police Station, Surat;"

[2.0] Heard learned advocate Mr. Utpal M. Panchal appearing for the applicants and learned Additional Public Prosecutor Mr. L.B.

NEUTRAL CITATION R/CR.MA/19526/2013 ORDER DATED: 04/08/2023 undefined Dabhi appearing for the respondent - State of Gujarat.

[3.0] It is the case of the applicants that at the instance of respondent No.2 - Salimkhan Daudkhan, Head Constable, Pandesara Police Station, Surat, impugned FIR being I-CR No.68/2011 came to be lodged on 07.04.2011 with Pandesara Police Station, Surat for the offences punishable under Sections 272, 273, 420 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") read with Sections 3 and 7 of the Essential Commodities Act, 1955. On the very same day, Mr. M.J. Rana, Food Inspector of Surat Municipal Corporation had already taken action against the applicants and he also lodged the complaint being PFA Case No.44/2011 for the offence under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "PFA Act"). Thus, on the same set of facts, two complaints for the same offence, filed by two different authorities and agencies and hence, applicants will have to face two trials for the same offence. Learned advocate Mr. Utpal Panchal has further submitted that the applicants have been convicted by the learned Judicial Magistrate First Class, Municipal Court, Surat in PFA Case No.44/2011 vide judgment dated 09.05.2018 against which Criminal Appeal No.168/2018 was filed by the present applicants and the learned Additional Sessions Judge, Surat vide judgment dated 19.11.2022 partly allowed the criminal appeal. Hence, now, nothing remains further in the impugned FIR and therefore, the impugned FIR filed at the instance of respondent No.2 is required to be quashed and set aside.

[4.0] Per contra, learned Additional Public Prosecutor has Page 2 of 5 Downloaded on : Sun Sep 17 00:09:01 IST 2023 NEUTRAL CITATION R/CR.MA/19526/2013 ORDER DATED: 04/08/2023 undefined submitted that two different authorities have initiated proceedings on different counts. One is for adulteration of food and noxious food and in another police has taken the cognizance and therefore, it is submitted that let investigation be completed and hence, he has requested to vacate the stay and dismiss the present application.

[5.0] Having heard learned advocates appearing for both the sides and going through the compilation, it appears that the impugned FIR (Annexure-A) is filed at the instance of respondent No.2 for the alleged offence taken place on 07.04.2011 wherein it is alleged that the accused persons are found with adulterated vegetable ghee worth Rs.1,31,875/-. Then, the FSL Officers came to the site and took sample of material and seized the adulterated food which the accused persons were intending to sell. On the same day, Mr. M.J. Rana, Food Inspector, Surat Municipal Corporation has paid the visit to the said premises, who also on the same day in the same premises, in presence of accused persons, seized 47 tins of adulterated vegetable ghee and samples were taken and had, after getting sanction under Section 20 of the PFA Act, lodged the complaint being PFA Case No.44/2011 against the present applicants under Sections 7(1) and 16(1) of the PFA Act. The learned JMFC, Municipal Court, Surat has been pleased to record conviction and impose sentence of rigorous imprisonment of two years upon the applicants with fine of Rs.10,000/-. Then, the said order of conviction was carried by the present applicants before the learned Sessions Judge, Surat in Criminal Appeal No.168/2018. The learned 8 th Additional Sessions Judge, Surat partly allowed the criminal appeal and pleased to release the applicants-accused on personal bond of Page 3 of 5 Downloaded on : Sun Sep 17 00:09:01 IST 2023 NEUTRAL CITATION R/CR.MA/19526/2013 ORDER DATED: 04/08/2023 undefined Rs.15,000/- and extended the benefit of probation. Thus, PFA Case No.44/2011 is finally decided against the present applicants.

[6.0] On the same set of facts and on the same day i.e. on 07.04.2011 and that too in the same premises qua same adulterated vegetable ghee, impugned FIR is filed for the offence punishable under Sections 272, 273, 420 and 114 of the IPC. Sections 272 and 273 of the IPC are non-cognizable offences, which provide punishment for adulteration of food and section 273 is for selling noxious food. As both the offences are bailable and non-cognizable offences and as this Court has initially granted the stay against investigation qua the impugned FIR, till date no further proceeding has taken place.

[6.1] Further, in the law under the case of double jeopardy, protection against the multiple prosecution in certain cases is given. A person cannot be tried twice for the same offence based on the same conduct or set of the case. In the case herein, act of accused persons is not of different kind.

[7.0] In view of the above, as under the special provision of the PFA Act, the offence is prescribed for adulterated food and material under Sections 7(1) and 16(1), once accused persons are tried and convicted then, on the same set of facts under the second FIR, no proceeding is permissible under Section 300 of the CrPC.

[8.0] In absence of any elements or ingredients of any offence and dishonesty or mischief or cheating from inception on the part of the accused in the alleged FIR, this Court is of the considered Page 4 of 5 Downloaded on : Sun Sep 17 00:09:01 IST 2023 NEUTRAL CITATION R/CR.MA/19526/2013 ORDER DATED: 04/08/2023 undefined view that continuation of the present proceedings is nothing but abuse of process of law and this is a fit case to exercise jurisdiction under Section 482 of the CrPC. Keeping in mind the ratio laid down by the Hon'ble Supreme Court in the case of Bhajan Lal vs. State of Haryana reported in 1992 Supp. (1) SCC 335, wherein it has been held that in the backdrop of the interpretation of the various relevant provisions of the Code under Ch. XIV and of the principles of law enunciated in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec. 482 of the Code, power under Section 482 of the CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or right formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

[9.0] In view of above discussion, present application is allowed. Impugned FIR being CR No.I-68/2011 registered with Pandesara Police Station, Surat alongwith all the consequential proceedings arising from the said FIR is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to cost.

(HASMUKH D. SUTHAR, J.) Ajay Page 5 of 5 Downloaded on : Sun Sep 17 00:09:01 IST 2023