Nagar Swasthya Adhikari Nagar ... vs Ajay Shanker Gupta
2023 Latest Caselaw 2841 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 87
 

 
Case :- APPLICATION U/S 378 No. - 27 of 2003
 

 
Applicant :- Nagar Swasthya Adhikari Nagar Nigam Varanasi
 
Opposite Party :- Ajay Shanker Gupta
 
Counsel for Applicant :- C.K. Parekh,Ashok K.Pandey
 
Counsel for Opposite Party :- A.G.A.,Sameer Jain
 

 
Hon'ble Dinesh Kumar Singh,J.

Heard Sri Ashok Kumar Pandey, learned counsel for the appellant.

The present appeal under Section 378(4) Cr.P.C. with an application for Leave to Appeal has been instituted against the judgment and order dated 23.10.2002 passed by the Additional Chief Judicial Magistrate, Court No. 1, Varanasi, in Criminal Case No. 5060 of 1994 (State Vs. Ajay Shanker Gupta), under Section 7/16 of Prevention of Food Adulteration Act, Police Stataion Cantt. District Varanasi.

As per prosecution story, on 10.12.1993 at around 12 Noon, the Food Inspector, Sri A.L. Rai inspected the sweet shop of the accused respondent, namely, Ajay Shanker Gupta situate in House No. 19/14, Varunapul, Police Station - Cantt, Varanasi. The accused respondent was given Form No. 6 and 600 gms. of Milk Cake (Barfi) was taken as sample for examination after paying Rs.30/- and taking receipt of the payment. The said sample was sealed, and after taking signatures of the accused respondent, was sent for examination, however, no public witness came forward while preparing Seizure Memo. The State/Analyst Uttar Pradesh in his report found that the Aluminium Foil used by the accused respondent was not of up to the standard. After receiving this report, complaint was filed, on which the learned Trial Court took cognizance and summoned the accused respondent for facing trial. In support of the prosecution case, Sri A.L. Rai was examined as P.W.-1, who supported the prosecution case. On 26.10.1998, the charge under Sections 7/16 of the Prevention of Food Adulteration Act was framed, which was denied by the accused respondent and pleading not guilty he requested for trial.

The prosecution, in support of his case, examined three witnesses, namely, Sri A.L. Rai as P.W.-1, and Sri Ram Janam Yadav as well as Sri Ashok Kumar Srivastava, both the Food Clerks, as P.Ws. 2 and 3.

After recording the statement of the accused respondent under Section 313 Cr.P.C., the Trial Court proceeded to decide the case. Learned Trial Court held that the Aluminium Foil is not a food item and there was no fault found in the Milk Cake during examination. The learned Trial Court, considering the facts and circumstances, observed that the Aluminium Foil was for decoration of the sweet and it was not dangerous and injurious to health. Considering the aforesaid fact and the evidence, the Trial Court acquitted the accused way back on 23.10.2002. It is not out of place to mention here that till date leave has not been granted whereas the offence allegedly was committed in the year 1998. As per the Public Analyst, there was no defect in the Milk Cake. The view taken by the Trial Court is one of the possible views and it is well settled that the Court should not interfere with the judgment and order of acquittal if two views are possible. It is also relevant to mention here that this appeal has been instituted by the Municipal Health Officer, who took the sample for examination and not by the State.

Considering the aforesaid facts and circumstances, I do not find any reason to grant leave after such belated period and at this stage.

Consequently, the present appeal fails and is hereby dismissed.

Order Date :- 27.1.2023

Arun K. Singh