Gujarat High Court
Shree Ram Oil Mills, Represented ... vs State Of Gujarat on 28 November, 2025
NEUTRAL CITATION
R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025
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Reserved On : 20/08/2025
Pronounced On : 28/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION - FOOD
ADULTRATION ACT) NO. 3 of 2006
With
CRIMINAL MISC.APPLICATION NO. 1 of 2006
In R/CRIMINAL REVISION APPLICATION NO. 3 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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SHREE RAM OIL MILLS, REPRESENTED THROUGH & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NV SOLANKI(860) for the Applicant(s) No. 1,1.1,1.2,1.3
NOTICE SERVED for the Respondent(s) No. 2
MR HK PATEL APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 28/11/2025
CAV JUDGMENT
1. The present revision application preferred by the applicants - original accused is directed against the judgment and order dated 03.01.2006 passed by the learned Sessions Judge, Navsari in Criminal Appeal No.16 of 2003, dismissing the appeal of the present applicants Page 1 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined and confirming the judgment dated 24.03.2003 passed by the learned Judicial Magistrate First Class, Gandevi in Criminal Case No.1308 of 2001, convicting the present applicants - accused for the offence punishable under Sections 2(ia)(a)(m), 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short, the "Act") and passing an order to pay the fine amount of Rs.3000/- to the partnership firm and the rest of the partners have been sentenced to undergo imprisonment of 6 months' and fine of Rs.3000/- each and, in default, to undergo 30 days' simple imprisonment.
2. In the present revision application, Criminal Misc. Application No.1 of 2006 has been preferred by the present applicants for production of the additional evidence at the stage of the revision application.
3. The factual matrix, leading to filing of the present revision application are that on 26.09.2000, at about 16:00 hrs., the Food Inspector and other persons have raided the firm, namely, 'Shantinath Trading Company at Page 2 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined Bilimora, Navsari and at that time, the original accused no.1 was present and subsequently, a panchnama was prepared as per the rules under the said Act and samples were drawn and thereafter, on 27.09.2000, they have created three parts of the said samples and also filled up Form No.7 as per rules and it was sent to the Local Health Authority, Valsad and as the accused no.1, who is a vendor, they have taken the sample of groundnut oil manufactured by Shri Ram Oil Mill, Khergam in the name and style of "Bansidhar Double Filtered Groundnut Oil". Thereafter, the report of the public analyst has been received and the complainant has taken consent from the competent authority and also called for the names of the partners of Shri Ram Oil Mill and subsequently, the complaint came to be given before the learned Magistrate on 30.05.2001. After the complaint has been received, the learned Magistrate has called upon the accused persons whether they want to send the sample to the Central Laboratory and accordingly, the accused prayed to send the said sample to the Central Laboratory, Calcutta and Page 3 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined accordingly, by preparing the rojkam, it was sent. As per the reports of the Local Health Public Analyst and Central Laboratory, the groundnut oil found to be adulterated. Hence, the complaint has been given and the prosecution has examined the witnesses. The learned trial Court, vide the impugned judgment, has acquitted the accused no.1, who is a vendor of the groundnut oil as the same was in warranty period but, the partnership firm and the partners of the firm have been convicted by the learned Magistrate. The said judgment of conviction has been challenged by preferring an appeal before the Sessions Court, Navsari and the learned Sessions Judge has dismissed the appeal. Hence, the present revision application has been preferred.
4. Learned advocate Mr.N.V. Solanki for the applicants submitted that both the impugned orders are contrary to the evidence on record and the both the Courts below have seriously erred in appreciating the evidence. It is submitted that there is non-compliance of certain mandatory provisions of the said Act and Rules but, this Page 4 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined aspect has not been considered by both the Courts below and, therefore, also the impugned judgments are required to be quashed and set aside. It is further submitted that both the Courts below have failed to appreciate that no notice, as required under the provisions of Act, was given to the applicants before launching of the prosecution under the Act and notice was given only to the original accused no.1 alone and no notice was issued to the rest of the applicants - accused, who are the partners of the firm, which is a manufacturer. It is submitted that the applicants were required to be served with individual notices. It is submitted that the applicant no.3, was neither in-charge of the affairs of the firm nor responsible for the conduct of the day-to-day business of the firm and hence, the other partners were also deprived from their right to defend their interest. Further, it is submitted that the Courts below have failed to appreciate that the sample taken from the business place of the original accused no.1 and the samples of oil taken from the custody of the accused no.1 on 26.09.2000, did not Page 5 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined belong to the product sold and/or supplied by the applicant and this aspect has not been considered and the main vendor was acquitted by the learned Magistrate. Merely on the basis of the bills/invoices, the Court come to the conclusion that there was a warranty and the accused no.1 has been acquitted and the case of the prosecution itself falls on that aspect only. Hence, the present revision application is required to be allowed. 4.1. It is submitted that there is a violation of Sections 11(1)(a) read with Section 14A of the Act and also violation of Rule 12 of the Prevention of Food Adulteration Rules. Further, it is submitted that there is a violation of Section 11(4) of the Act as the report dated 30.10.2000 of the analyst has been received by the Food Inspector on 13.11.2000. As per the provisions of Section 11(4) of the Act, within 7 days i.e. on 20.11.2000, the same was required to be sent to the learned Magistrate but, it was not sent within 7 days and was sent on 30.05.2001 i.e. after a period of about 6 months and, therefore, also, there is a violation of the provisions of the Page 6 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined said Act. It is submitted that there are no averments in the complaint that the partners are handling day-to-day affairs of the company and there is not a single averment and hence, as per Section 17 of the Act, the accused cannot be held guilty. It is submitted that as per Rule 14 of the Prevention of Food Adulteration Rules, the complainant has admitted that at the time of taking the sample from the shop of the accused no.1, he has not cleaned the bottles at that time. So, there is a violation of Rule 14 and considering this, it is submitted that the impugned judgments are required to be quashed and set aside.
4.2. In support of his arguments, learned advocate Mr.Solanki has replied upon the following decisions:-
"(i) M. Eswaraiah vs. State of A.P. reported in 1999 Cri.L.J. 1268,
(ii) Gopishankar S. Vaid and others vs. State of Gujarat and another, reported in 2000 Cri.L.J. 4320,
(iii) Yogesh Babubhai Trivedi and others vs. K.V. Dabhi, Food Inspector and others, reported in 2006(1) G.L.H. 83,
(iv) P.R. Neelkantham and others etc. vs. Page 7 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined State of Rajasthan and others, reported in 1986 Cri.L.J. 1811,
(v) Hindustan Un it Lever Ltd. vs. State of Gujarat and another, reported in 2009(1) Crimes 7 (Guj.),
(vi) State of Maharashtra vs. Bhaskar Rajeshwar Gangshettiwar and others, reported in 2004(1) FAC 13,
(vii) State of Gujarat vs. Punabhai Ramabhai Machhi, reported in 2005(2) GLR 1767."
4.3. It is submitted that Criminal Misc. Application No.1 of 2006 has been submitted to produced the additional documents at this stage, which are very relevant as the samples, which have been taken from the accused no.1 from the same batch and the other samples, which have been sent to the Local F.S.L., it was not found adulterated. Therefore, this report is required to be considered and hence, the additional documents are required to be allowed at the revision stage.
5. On the other hand, learned A.P.P. Mr.H.K. Patel for the respondent - State submitted that the present revision application is devoid of any merits. The learned Magistrate Court and the Sessions Court have considered all the defenses of the accused persons and come to the Page 8 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined conclusion that there is no violation of any mandatory provisions. It is submitted that there are concurrent findings of conviction by both the Courts below and at this stage, this Court, at the time of invoking revisional jurisdiction, cannot appreciate or reappreciate the oral evidence, unless and until the judgments passed by the Courts below are found to be perverse and against the settled principles of law then only, the Court can interfere. It is submitted that, therefore, the present revision application, being devoid of any merits, the same is required to be dismissed.
6. Heard the rival submissions of the learned advocates for the respective parties, perused the impugned judgments passed by the learned Judicial Magistrate First Class, Gandevi and the learned Sessions Judge, Navsari and also considered the decisions on which, the learned advocate for the applicants has relied upon.
7. In the present case, it is an admitted position that the present applicants have been convicted by the Page 9 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined learned J.M.F.C., which was challenged by the applicants by preferring an appeal before the Sessions Court, Navsari and the Sessions Court, Navsari has also confirmed the judgment of conviction. So, the present applicants are facing the concurrent findings of conviction.
8. As this is a revision application, as per the settled legal position, when the High Court, in its revisional jurisdiction, can call for and examine the record of any proceedings for the purpose of satisfying itself as to correctness, legality or propriety of any findings, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But, the revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. So, normally, it is not appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Page 10 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. In that circumstances only, while exercising the revisional jurisdiction, the High Court can interfere with the conviction passed by the learned J.M.F.C. and confirmed by the Sessions Court.
9. In light of the aforesaid proposition of law, the factual situation of the present case is that it is not in dispute that the original complaint came to be filed against the five accused persons. The present applicants are shown as accused nos.2 to 5, who are the manufacturers and accused no.1, who is a vendor, has been acquitted by the learned trial Court and the same has not been challenged by the department. So far as the factual aspect is concerned, original accused no.1 - Mr.Jayeshkumar Gandhi was running a firm at Bilimora in the name and style of "Shantinath Trading Company" and at that time, the Food Inspector has came to the said shop on 26.09.2000 and has Page 11 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined given the identity card and also appraised the vendor that they want to inspect in presence of the panchas as per the provisions of the said Act. Subsequently, they have taken the sample of groundnut oil and the said groundnut oil was having the brand name of 'Bansidhar' and the said brand was manufactured by Shri Ram Oil Mill, Khergam, Taluka Chikhli, District Navsari. The present applicant no.1 is the partnership firm and other accused nos.1.1, 1.2 and 1.3 are the partners of Shri Ram Oil Mill Limited. Further, three parts of sample have been taken and on 27.09.2000, two parts have been put into cover along with the memorandum Form No.7, sealed and sent the same to the local authority, Valsad for the test and another part was sent to Public Analyst, Rajkot. Subsequently, the report came from the public analyst office, which was received on 30.10.2000 and as per the report, the result of analysis of Bellier Test was found to be 37.5°C but, as per the P.F.A Limits, it must be on 39.0°C to 41.0°C and the Halphen Test for cottonseed oil was found to be more than the P.F.A. limit and the limit of Bellier test is found to be less from the P.F.A. Limits. Hence, Page 12 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined as per the report, the sample was found to be adulterated. Subsequently, the department has obtained consent to launch a prosecution and got permission for the private complaint came to be filed against the vendor - accused no.1, partnership firm, manufacturer company - accused nos.2 and 3 partners have been joined as accused and complaint came to be filed for the offence punishable under Sections 2(ia)(a)(m) and Section 7(i) and Section 16(1)(a)(i) of the said Act before the Court at Gandevi and the same was numbered as Criminal Case No.1308 of 2001 on 30.05.2001. After that, the learned Magistrate has called upon the accused persons and asked whether they want to send the said sample to the Central Laboratory, Calcutta and pursuant to that, they have agreed to send the one part of sample to the Calcutta and for that, a rojkam was made on 27.06.2001. Subsequently, the sample was sent to Central Food Laboratory, Calcutta and report of the Central Food Laboratory, Calcutta came and as per the report, the Bellier test found to be as 38.0 Degree Celsius and Halphen Test was found to be positive and 25.0 Red unit i.e. more Page 13 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined than the value of the prescribed value under the P.F.A. Limits and pursuant to that, the charge was framed against the accused persons and to prove the case, the prosecution has examined complainant - Ashokkumar Laxmanbhai Patel vide Exh.27, another person - Dilipbhai Gotabhai Gamit, who has given a complaint, has been examined vide Exh.82, panch witness - Khedubhai Maganbhai was examined at exh.90. The documentary evidence and all the reports of the samples have been exhibited by the witnesses and subsequently, delivered a judgment on 24.03.2003 whereby, accused no.1 - vendor has been acquitted and all other persons has been convicted for the offence punishable under Section 2(ia)(a),7(i), 16(1)(a)(i) and have been sentenced. The learned trial Court also convicted the accused no.2 - firm and awarded fine of Rs.3000/- and accused No.3,4 & 5 partners of the firm, have been sentenced to undergo six months imprisonment and fine of Rs.3000/- each and, in default, to undergo 30 days' simple imprisonment. The said judgment was challenged by the present applicants before the learned Sessions Judge, Page 14 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined Navsari by preferring Criminal Appeal No.16 of 2003 which was dismissed on 03.01.2006, confirming the judgment of conviction by the trial Court. Hence, the present revision application has been filed.
10. As discussed above, at this stage, this Court is not required to appreciate or reappriciate the evidence. Now, the main defense taken by the accused persons i.e. the present applicants is pertaining to violation of Section 11 of the Act and more particularly, Section 11(4) of the said Act. For convenience, Section 11 has been reproduced as under:-
"11. Procedure to be followed by food Inspectors.
--3 [(1) When a food inspector takes a sample of food for analysis, he shall--
(a) give notice in writing then and thereof his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14A.
(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed:
Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his Page 15 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;
(c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and
(ii) send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this section and sub sections (2A) and (2E) of section 13.
(2) Where the part of the sample sent to the public analyst under sub-clause (I) of clause (c) of sub-
section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the food inspector dispatch one of the parts of the sample sent to it under sub- clause (ii) of the said clause (c) to the public analyst for analysis.] (3) When a sample of any article of food 4[or adulterant] is taken under sub-section (1) or sub- section (2) of section 10, 5[the food inspector shall, by the immediately succeeding working day, send send a sample of the article of food or adulterant or both, as the case may be,] in accordance with the rules prescribed for sampling to the public analyst for the local area concerned. [(4) An article of food seized under sub-section (4) of section 10, unless destroyed under sub-section (4A) of that section, and any adulterant seized under sub-section (6) of that section shall be produced before a magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst.] Provided *** that if an application is made to the magistrate in this behalf by the person from whom any article of food has been seized, the magistrate shall by order in writing direct the food inspector to produce such article before him within such time as may be specified in the order.
[(5) If it appears to the magistrate on taking such Page 16 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined evidence as he may deem necessary--
(a) that the article of food produced before him under sub-section (4) is adulterated or misbranded, he may order it--
(i) to be forfeited to the Central Government, the State Government or the local authority, as the case may be; or
(ii) to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or
(iii) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name; or
(iv) to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the magistrate is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order;
(b) that the adulterant seized under sub-section (6) of section 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority, as the case may be.] (6) [If it appears to the magistrate that any such--
(a) article of food is not adulterated; or
(b) adulterant which is purported to be an adulterant is not an adulterant, the person from whose possession the article of food or adulterant was taken] shall be entitled to have it restored to him and it shall be in the Page 17 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined discretion of the magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the magistrate may think proper."
11. So, the main defense taken by the present applicants is that as per Section 11(4), an article of food seized under sub-section (4) of Section 10, shall be produced before a magistrate as soon as possible and not later than seven days after the receipt of the report of the public analyst. Further, in support of his argument, learned advocate for the applicants has relied upon the judgment of the Hon'ble Andra Pradesh High Court in the case of M. Eswaraiah (supra). It is an admitted position in the present case that the raid was conducted on 26.09.2000, the sample was sent to the office of the local public Analyst, Rajkot on 25.10.2000 and the report has been prepared by the local public analyst, Rajkot on 30.10.2000, which was received by the Food Inspector on 13.11.2020. So, as per Section 11(4) of the Act, the sample was required to be sent to the Magistrate by 20.11.2000. But, it is an admitted position that the said sample has been sent to the Magistrate on Page 18 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined 30.05.2001 i.e. after almost the period of more than 5 months. Further, in the present case, after the public analyst report has been received on 13.11.2000, complaint came to be given before the Magistrate on 30.05.2001. As per Section 13(2) of the Act, after the person getting a copy of the report, accused can get an opportunity to get the sample or article of food kept by Local (Health) Authority and analyzed by the Central Food Laboratory within 10 days. In the present case, it is an admitted position that after receipt of the report of the Public Analyst, Rajkot, report has not been sent and article of food had not been produced before the Magistrate and on 30.05.2001 i.e. almost after the period of more than 5 or 6 months, it was produced before the Magistrate and subsequently, it was sent on 27.09.2000. So, apparently, a valuable right of the applicants has been affected under Section 13(2) of the Act. Hence, after getting report from the local public analyst, Rajkot, it has been sent to the Central Laboratory Calcutta i.e. after a period of more than 6 months. So, there is a clear-cut violation of Section 11(4) of the Act and on receipt Page 19 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined of the report on 13.11.2000, the article should have been produced before the Magistrate on 20.11.2000, but it was not sent to the Magistrate and was sent on 30.05.2001 i.e. after more than 6 months. So, there is a clear-cut violation of Sections 11(4) and 13(2) of the Act.
12. Further, the second defense taken by the applicants is that there is a violation of Rule 14 of the Prevention of Food Adulteration Rules, 1955. It is the defense taken by the applicants that the bottle, in which the sample has been taken, has not been cleaned by the person, who has taken the sample on 26.09.2000 when the sample has been taken from the shop of the vendor. In this regard, it is required to consider the evidence of complainant - Ashokbhai Laxmanbhai Patel, who has been examined as PW-1 at Exh.27. In his cross-examination, when a question had been put, it was the answer that, 'it is true that who has cleaned the said bottles, he had no knowledge regarding this.' Further, he stated that one vessel was with that bottle but, the said vessel was cleaned by him. So, from this cross- Page 20 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025
NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined examination, it has been established he has cleaned the vessel but, not the bottles while taking the samples. Under Rule 14, the samples of food for purpose of analysis are required to be taken in clean dry bottles and shall be closed sufficiently tight to prevent leakage or evaporation and in case of the dry substance, prevent entrance of moisture in the bottle is required to be seen carefully and it is a mandatory provision. Witness - Ashokbhai Patel, in his deposition, has specifically stated that he has not cleaned the bottles in which, the samples have been taken on the spot. So, in view of the settled legal position, there is a violation of Rule 14 and in the present case, the prosecution has failed to prove compliance of mandatory requirements.
13. The another defense taken by the applicants is pertaining to violation of Section 17(4) of the Act. Section 17 pertains to offences by the Company, more particularly, Sections 17(4), which reads as under:-
"17(4)" Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is Page 21 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company [not being a person nominated under sub-section (2)] such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation - For the purposes of this section -
(a) "Company" means any body corporate and includes a firm or other association of individuals;
(b) "director" in relation to a firm, means a partner in the firm; and
(c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.]"
14. On perusal of Section 17(4), it is required to consider the decision of this Court in the case of Loknath Bhattacharya Managing Director vs. State of Gujarat reported in 2009(2) GLR 1290.
14. It is profitable to reproduce Section 17 as a whole, which reads as under:--
"17. Offences by companies - (1) Where an offence under this Act has been committed by a company--
(1)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or
(ii) Where no person has been so nominated, every person who at the time the offence was committed Page 22 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined was in charge of, and was responsible to, the company for the conduct of the business of the company: and
(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he provides that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.
(2) Any company may, by order in writing, authorize any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.
Explanation - Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation to any establishment, branch or unit shall be: deemed to be the person responsible in respect of such establishment, branch or unit.
(3) The person nominated under sub section (2) shall, until--
(i) further notice cancelling such nomination is received from the company by the Local (Health) Authority, or Page 23 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined
(ii) he ceases to be a director or, as the case may be, manager of the company, or.
(iii) he makes a request in writing to the Local (Health) Authority, under intimation tot he company, to cancel the nomination [which request shall be complies with by the Local (Health) Authority), whichever is the earliest, continue to be the person responsible:
Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority:
Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall riot cancel such nomination with effect from a date earlier than the date on which the request is made.
(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company [not being a person nominated under sub-section (2)] such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation - For the purposes of this section--
(a) "Company" means any body corporate and includes a firm or other association of individuals;
(b) "director" in relation to a firm, means a partner in the firm; and
(c) "manager", in relation to a company engaged in Page 24 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.]"
15. That perusal of Section 17 is with regard to offence by companies and clause (a) of subsection
(i) of Section (1) of Section 17 empowers the company to nominate a person under subsection (2) of the Act and in absence thereto if no person is so nominated, sub-clause (ii) makes it clear that offences said to have been committed by a person who was in charge of, and was responsible to, the company for the conduct of the business of the company. The proviso to the above section begins with a phrase that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such an offence.
16. Thus, a plain reading of the above sub-section (1) as a whole with proviso makes it clear that so far as nomination is made under sub-section (2) of a person, other directors or any other person is not liable to be proceeded under the Act. At the same time, if nomination is not made, the Director or any other officer of the company is liable. The interpretation of the above proviso of sub-section (1) read with subsection (4) mandates the prosecution to make specific averments about a person in-charge of, and responsible for the offence for conduct of the business of the company unless such fact is pleaded, viz. the fact about connivance, consent, negligent etc. under subsection (4) will not come into operation.
17. The Apex Court in the case of R.Banerjee (supra) in para 9 held as under :-
"9. On a careful perusal of the complaints lodged by the Food Inspector under the Act it is evident that intimation regarding the nomination in favour of H.Dayani and Dr.Nirmal Sen had been communicated to the Food Inspector before the complaints came to be lodged. This is evident from the averments made in the respective complaints.Page 25 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025
NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined The nomination was, however, not acted upon by the complainant on the ground that it was incomplete. It was, therefore, said that in the absence of a valid nomination from the concerned company the Directors of the company were liable to be proceeded against the punished on proof of the charge levelled against them in the complaint. It will thus be seen that there is no allegation in the complaint which would bring the case within the mischief of Section 17(4) of the Act. There is no allegation in the complaint that the offence was committed with the consent/connivance/negligence of the Directors, other than the nominated person, who were impleaded as co-accused. We are, therefore, satisfied that the allegations in the complaint do not make out a case under sub-section (4) of Section 17 of the Act. That being so, the inclusion of the co- accused other than the company and the nominated person as the persons liable to be proceeded against and punished cannot be justified. As held by this Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi where the allegations set out in the complaint do not constitute any offence, no process can be issued against the co-accused other than the company and the nominated person and the High Court would be justified in exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking cognizance of the offence against such co- accused".
20. It is clear that right from the case of State of Punjab v. Devinder Kumar reported in AIR 1983 SC 545, about principle of vicarious liability in criminal offence vis-a-vis company and its personnel including the directors and requirement of necessary and specific averments or contentions about commission of offence and in the above context if the complaint is perused, only averment against the present petitioners is that they are Managing Director and Director of the petitioner company and nothing beyond that. Therefore, the complaint lacks necessary ingredients and averments with regard to commission of alleged offence and issuance of process by the Magistrate Page 26 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined is nothing but arbitrary exercise of power and contrary to the procedure.
22. So far as the contention of non-obstinate clause viz. sub-section (4) of Section 17 of the Act, as relied by the learned APP, the bracketed portion excludes the persons nominated under sub-section (2) of Section 17 of the Act and therefore, the contention of learned APP that sub- section (4) of Section 17 overrides other preceded sections, cannot be accepted. At the same time, sub-section (4) of Section 17 of the Act begins with a phrase "notwithstanding ... it is proved" and, therefore, when at the threshold requirement of sub-section (2) of Section 17 is fulfilled coupled with the fact that there are no specific averments in the complaint qua the Managing Director and Director that they were in-charge of day today conduct of the business and responsible for alleged commission of crime under the Act, I do not see any justification to permit the concerned Magistrate to proceed further with the proceedings impugned in this petition. A case is made out by the petitioners to exercise powers under Section 482 of the Code of Criminal Procedure, 1973 since the complaint and the process issued subsequently do not contain allegations prima facie if examined on the face value attracting ingredients of the offences and for the reasons stated herein above, the impugned complaint is required to be quashed and set aside."
15. Considering the pronouncement of this Court, as per Section 17(4), there must be an averment in the complaint qua the firms and the partners, who are in-charge of day-to- day conduct of the business and responsible for the alleged commission of crime under the Act is required to be mentioned. In the present case, looking to the complaint Page 27 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined given by - Ashokkumar Lakshmanbhai Patel, there is not a whisper about the original accused no.2, who is a partnership firm, manufacture, accused nos.3 to 5 as per the complaint, they are the partners of the firm. There is not a single whisper that who are the responsible persons of this firm. Even nothing has been stated in the complaint about the partnership firm and other partners. So, there are no averments and there is a clear-cut violation of Section 17(4) of the Act and considering the above pronouncement of this Court, there is a violation of Section 17 of the Act.
16. As discussed above, in the present case, the learned trial Court and the Sessions Court have not considered this aspect that there is a violation of Sections 11(4), 13(2) and 17(4) of the Act as well as Rule 14 of the Rules. Considering this, as discussed above, after receipt of the report from the Local Public Analyst, the sample has not been sent to the Magistrate within 7 days. Even after receipt of the said report, after more than 6 months, the complaint came to be filed before the Magistrate along with the sample and after Page 28 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined 20 to 25 days, the sample has been sent to the Central Laboratory, Calcutta. Further, from the cross-examination of witness - Ashokumar Patel, it emerges that there is a violation of Rule 14 of the Prevention of Food Adulteration Rules, 1955 and also, there is not a whisper about the applicant nos.1.1, 1.2 and 1.3 that how they are responsible for the commission of this offence, who are looking after the day-to-day business of the company.
17. Hence, considering the overall facts and circumstances of the case, there is a violation of the mandatory provisions, as discussed above and illegality is found to have been committed by both the Courts below. The findings recorded by both the Courts below are found to be erroneous on the ground that they have not discussed that there is a violation of the mandatory provisions of Sections 11(4), 13(2), 17(4) of the Act and also violation of Rule 14 of the Rules. So, the findings recorded by both the Courts below found to be erroneous, perverse and against the settled principles of law. Hence, the present revision application is required to Page 29 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025 NEUTRAL CITATION R/CR.RA/3/2006 CAV JUDGMENT DATED: 28/11/2025 undefined be allowed and the judgment of conviction passed by the learned Magistrate and confirmed by the appellate Court is required to be interfered with.
18. As discussed above, present Criminal Revision Application No.3 of 2006 is hereby allowed. The judgment and order dated 03.01.2006 passed by the learned Sessions Judge, Navsari in Criminal Appeal No.16 of 2003, dismissing the appeal of the present applicants and the judgment dated 24.03.2003 passed by the learned Judicial Magistrate First Class, Gandevi in Criminal Case No.1308 of 2001, convicting the present applicants - accused are hereby quashed and set aside. In the result, the present applicants are hereby acquitted from all the charges.
19. In view of the disposal of Criminal Revision Application No.3 of 2006, Criminal Misc. Application No.1 of 2006 would not survive also stands disposed of. Rule is made absolute to the aforesaid extent.
(L. S. PIRZADA, J) Hitesh Page 30 of 30 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Mon Dec 01 2025 Downloaded on : Mon Dec 01 21:22:51 IST 2025