Gujarat High Court
State Of Gujarat vs Dipakkumar Chimanlal Shah - M/S Zalak ... on 2 July, 2025
NEUTRAL CITATION
R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1113 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DIPAKKUMAR CHIMANLAL SHAH - M/S ZALAK ENTERPRISE
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Appearance:
MS.C.M.SHAH, APP for the Appellant(s) No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/07/2025
ORAL JUDGMENT
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 judgment and the order dated 07.04.2011 in Criminal Case No.13 of 1995 passed by the learned Metropolitan Magistrate, Court No.8, Ahmedabad (hereinafter referred to as 'the learned Trial Court'), whereby, the learned Trial Court has acquitted the respondent - accused from Page 1 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined the offences punishable under Sections 2(1-a)(a) and (m), 7(1) and 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').
1.1. The respondent is hereinafter referred to as 'the accused' as he 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. The complainant was serving as a Food Inspector and on 07.09.1994 at about 10:00am, he along with J.N.Soni, Food Inspector and T.V.Makwana, Helper, visited the shop of the accused running in the name and style of "Zalak Enterprise" and had purchased 450gram of Deepak Brand Filtered Groundnut Oil and paid an amount of Rs.19.80 for the oil and got the receipt for the same from the accused. The sample of groundnut oil was kept in three glass bottles and the bottles were sealed. The Food Inspector put his signature as well as signatures of the panchas and the seals and after following the prescribed procedure, the Page 2 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined one sample oil bottle was sent for analysis to the Public Analyst.
On the sample being found adulterated, after obtaining the necessary sanction the complaint was filed before the Court of the Chief Metropolitan Magistrate, Ahmedabad, which was registered as Criminal Case No. 13 of 1995 for the offence punishable under Section 2(1-a)(a) and (M) and 16(a)(a) of the Act. 2.2. The accused was duly served with the summons and the accused appeared before the learned Trial Court and it was verified whether the copies of all the papers were provided to the accused as per the provisions of Section 207 of the Code. As the case was a private warrant triable case, the evidence of the complainant on oath was recorded at Exh.8 and the complainant produced documentary evidence at Exh.9 to Exh.32. Considering the evidence on record as a prima-facie are was made out, a charge was framed by the learned Trial Court at Exh.34 and the statement of the accused was recorded at Exh.3, wherein, the accused denied all the contents of the charge and the further evidence of the prosecution was taken on record. The prosecution examined 2 witnesses i.e. the complainant - Shailesh Somabhai Patel, Food Page 3 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined Inspector at Exh.8 and PW-2 Maheshbhai Prabhudas at Exh.43 and has produced documentary evidences from Exh.9 to Exh. 32 in support of the case.
2.3 After the evidence of the complainant was closed by an order dated 31.03.2003 passed below Exh.46, 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(1-a)(a) and (m), 7(1) and 16(1)(a) 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 Page 4 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined 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. 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 and other witnesses which was 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 - Page 5 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025
NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined State. Though served, the respondent No.1 - accused has not appeared either in person or through an advocate. 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 Page 6 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined the said offence and impose maximum sentence on the accused.
6. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Chandrappa & Ors. Vs. State of Karnataka reported in 2007 (4) SCC 415, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) ........ From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;] (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of ac- quittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an Page 7 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined 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 cir-
cumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an ap- pellate Court in an appeal against acquittal. Such phrase- ologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to in- terfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own con- clusion.
(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 avail- able 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 acquit- tal, the presumption of his innocence is further rein- forced, 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.
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 Page 8 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined 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. In light of the above, the evidence produced by the prosecution on record is appreciated and the prosecution has examined PW-1 Shailesh Somabhai Patel at Exh.8 and the witness is the complainant, who has produced the notification of the Official Gazette, wherein, he was appointed as a Food Inspector at Page 9 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined Exh.9. The witness has stated that on 07-09-1994 at around 10:00am, he along with Food Inspector J.N.Soni and helper T.V.Makwana had gone to Juna Madhupur in Ahmedabad at Zalak Enterprise and the accused was present in the shop. The complainant introduced himself as a Food Inspector and the license of the shopt under the Gujarat Essential Articles Licensing Control and Stock Declaration Order, 1981 was taken, which is produced at Exh.10.
The accused was selling vegetable oil, groundnut oil and there were 15 kg. tins and out of the stock, an intimation in Form-6 about the sample to be taken from filtered groundnut oil of 'Deepak Brand' was given to the accused, which is produced at Exh.11. One tin of 'Deepak Brand' groundnut oil was taken and it was a tin of 15 kg. weight with maximum retail price Rs.675/-, local taxes extra and there was a sticker on the tin, on which, 'Zalak Enterprise' 'Deepak Brand', Ahmedabad was written in English. The tin was cleaned and lifted and shaken and the sticker was taken out and 450 grams oil was taken from the tin in a clean dry steel vessel, which was placed on the weighing scale. The Page 10 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined price of 1 kg.of oil was Rs.44/- and Rs.19.80 paise for 450 grams of groundnut oil was paid and the receipt was taken, which is produced at Exh.12. The accused had given the cash memo, which is produced at Exh.13, and the witness took three clean and dry glass bottles, and from the steel vessel, put equal amounts of oil in each of the bottle and sealed each of the bottles with the dry wooden cork and closed the bottles. A laq seal was affixed on the bottle covers and a label was stuck and a sample of the label is produced at Exh.14. The stamp on the tin was put in a packet and it was sealed and the same is produced at Exh.15. All the three bottles were covered with brown paper and stuck by gum and a code number and serial number was given and the thread on the bottles was tied and four seals each were put on the thread on the bottles. A panchnama of the entire procedure was drawn and the rojkam is produced at Exh.16. The witness took all the three sealed bottles to his office and kept them in his custody and on 08.09.1994, one bottle was sent to the Local Health Authority with the Memorandum of Form-7, which was placed in a wooden box and a white cloth was enclosed and stitched with a needle and Page 11 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined thread and it was addressed to the Public Analyst at Baroda. The cloth was sealed with laq and the remaining two samples were kept in sealed packets and given to the Local Health Authority M.S.M.Kadri at Gandhinagar by hand. The Local Health Authority gave a receipt vide the receipt produced at Exh.17. The packet was sent to the Public Analyst, Vadodara by R.P.A.D., and the receipt is produced at Exh.18 and the Memorandum is produced at Exhs.19 and 20. The parcel was received by the Public Analyst and the postal acknowledgment is produced at Exh.21. The Public Analyst, Vadodara sent the receipt at Exh.22 stating that the wooden box was received wherein there were two sealed packets and the report of the Public Analyst that the sample after analysis did not conform to the standards and provisions of the Prevention of Food Adulteration Rules is produced at Exh.23. The details of the sample is produced at Exh.24 and vide the document produced at Exh.26, the permission to file the complaint was sought for from the Local Health Authority and vide the document produced at Exh.23, details of the firm and partners and their address were called for. The notice was given to the accused, which is produced Page 12 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined at Exh.28 and regarding service of the notice correspondence vide the letter produced at Exh.29 was made to the Post Master General, Head Post Office, Gandhinagar and the reply of the Superintendent of Post Office, Gandhinagar was received stating that the registered letter has been delivered to the addressee and the same is produced at Exh.30. The registered post acknowledgment of the notice sent to the accused is produced at Exh.31 and the complaint was filed before the competent court by the complainant. During the cross examination by the learned advocate for the accused, the witness has stated that he did not seize the label of the tin, from which, the sample was taken and the accused was not the manufacturer of the oil, but was only a packer and he did not inquire, from where, the groundnut oil was brought by the accused. The witness has admitted that Mr.M.S.M. Kadri has not been appointed as a Deputy Commissioner (Food) and the paper slip bears the signature of M.S.M.Kadri. This permission to file the the sanction to file the complaint was given by J.D.Nayakar and the notice at Exh.28 was sent by the Local Health Authority. No acknowledgement was received that the Page 13 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined notice was received by the accused and the letter was sent by simple post. The document produced at Exh.31 does not bear the name of any person but only the name of 'Zalak Enterprise'. 8.1 The prosecution has examined PW-2 Mahendrabhai Prabhudas at Exh.43 and as per the case of the prosecution, the witness was the panch witness on 07.09.1994 when the complainant had gone to take the sample at shop of the accused. The witness has stated that he was called as a panch by the Food Inspector but he does not know what procedure was undertaken by the Food Inspector. He was working in the shop of the accused and he had merely affixed his signature when the Food Inspector had taken the sample of groundnut oil. He cannot identify the tin, from which, the groundnut oil was taken and 450 grams of groundnut oil was taken in a vessel and the groundnut oil was measured by the accused and given to the Food Inspector. The witness has not supported the case of the prosecution and has been declared hostile and has been cross-examined at length by the learned APP. During the cross-examination by the learned advocate for the accused, the witness has stated that he was Page 14 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined working as a Collection Agent for the accused and when the Food Inspector had come to the shop, he had gone out for collection and he came and went to do some work of the bank. It was known to the Food Inspector that he had gone for bank work and that he was working in 'Zalak Enterprise' and in front of the shop of 'Zalak Enterprise' is a public road and a number of persons pass by on the road. The accused does not manufacture groundnut oil but brings the groundnut oil in tankers and does the packing of the groundnut oil in tins. The accused was merely a packer of the groundnut oil and was not a producer and when the Food Inspector had come to the shop, there were other labourers working in the shop. When the stamp on the tin was removed by a labourer, some oil from the tin fell in the vessel and the groundnut oil was measured by the labourer and given and he was shown the vessel by the Food Inspector. The labourer had filled the groundnut oil in the bottles and wherever he was asked to affix his signature, he had done so on the say of the Food Inspector. He did not read the document which he had signed and when the labourer was removing the label from the tin and filling Page 15 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined the oil in the bottles, the Food Inspector was writing the panchnama. That he had later on come to the shop and had merely affixed his signature on all the places that he was asked to do so.
9. On minute appreciation of the entire evidence of the prosecution, the Food Inspector PW-1, Shailesh Somabhai Patel, who is the complainant, has produced all the documents at Exhs.9 to 31, but in the entire evidence, there is no evidence that the notice was served to the accused. The letter produced at Exh.29 addressed to the Post Master General, Main Post Office, Gandhinagar inquires as to whether the letter sent to 'Zalak Enterprise' has been delivered to the addressee or not and vide the reply produced at Exh.30, it is stated that the letter under reference has been delivered to the addressee and the R.P.A.D. is produced at Exh.31. If the document produced at Exh.31 is produced, it does not bear the signature of any person and it appears that the document was sent to 'Zalak Enterprise'. Moreover, there is evidence on record that the accused was packing the groundnut oil and he was not the producer or manufacturer of the groundnut oil and the Food Inspector has not inquired as to where the Page 16 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined groundnut oil was procured from. If the manner, in which, the sample was taken is perused, the Food Inspector has stated that the tin was lifted, shaken and the sample was taken from the 15 kg tin into a vessel, but there is nothing on record to suggest that the vessel was cleaned or where was the vessel procured from and whether the vessel and the bottles were sterilized and free from any impurities at the time of taking the sample. The is no evidence whether the bottles in which the samples were taken were clean and sterilized and whether they were properly closed sufficiently tight prevant leackage or evaporation. The panch witness, who is the independent witness PW-2, Mahendrabhai Prabhudas examined at Exh.43 has stated that the groundnut oil was removed from the tin by a labour into a vessel, and thereafter, the labour had filled the groundnut oil in the bottles. There is no evidence as to whether the sealing of the samples was done properly or not. Moreover, there is no evidence on record that the sanction to file the complaint was given by the proper authority and whether the authority, who has given the sanction to file the complaint, had the authority to do so. There is no notification of the Deputy Page 17 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined Commissioner on record, and even though, the Food Inspector had stated that he was ready to produce the same, it has not been produced on record. As per the settled principles of law, the statutory duty has to be performed by a duly designated officer and a person, who is in charge of the post and is temporarily performing the duties, cannot be placed on par with the designated person and if the permission to file the complaint was given by an in-charge, it is not a valid permission.
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 Page 18 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025 NEUTRAL CITATION R/CR.A/1113/2011 JUDGMENT DATED: 02/07/2025 undefined 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 dated 07.04.2011 in Criminal Case No.13 of 1995 passed by the learned Additional Sessions Judge, Fast Track No.3, A1`hmedabad is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) F.S. KAZI Page 19 of 19 Uploaded by F.S. KAZI(HC01075) on Fri Jul 04 2025 Downloaded on : Sat Jul 05 01:55:20 IST 2025