Gujarat High Court
State Of Gujarat vs Shaileshbhai Mansukhlal Shah on 9 February, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1315 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or NO
any order made thereunder ?
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STATE OF GUJARAT
Versus
SHAILESHBHAI MANSUKHLAL SHAH
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Appearance:
MR. MANAN MEHTA, APP for the Appellant(s) No. 1
MR TUSHAR L SHETH(3920) for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/02/2024
ORAL JUDGMENT
1. This is an appeal at the instance of the State under Section 378
(3) of Criminal Procedure Code, against the judgment and order of
acquittal dated 31.12.2019 passed by learned Additional Chief Judicial
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Magistrate, Rajkot (hereinafter, "learned Magistrate") in Criminal Case
No.516 of 1996. By the said judgment and order, the learned
Magistrate has acquitted the respondent-accused for the offence
alleged under Sections 7 (1) (5) and 16 of the Prevention of Food
Adulteration Act, 1954, (hereinafter, "the Act").
2. According to case of the prosecution as alleged in the
complaint, on 24.11.1995, the Food Inspector- Mr. K. C. Kumbi under
the supervision of Local Health Authority (LHA) had reached the place
of offence along with one panch witness Mr. Maheshbhai Laxmanbhai
at the premises of respondent/original accused-Mr. Shaileshbhai
Mansukhlal Shah at Kadia Line Gondal, District- Rajkot. It is averred
that the accused was found conducting the businesses of various food
articles lying in his store, which were essentially for human
consumption. The Food Inspector had disclosed his identity and had
expressed his intention to purchase a sample of turmeric powder from
the vendor as lying in the iron jar, which was without any label
declaring its contents. The vendor had agreed to such purchase.
According to the complainant, the sample was then lifted as per the
procedure prescribed under the Food Adulteration Act and the Rules
framed thereunder.
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2.1 It is contended that each sample was separately packed,
fastened, marked and sealed and the documents were prepared at the
spot including the Notice Form-VI, even the panchnama was drawn at
the spot. It is further claimed that the price of the sample was paid to
the vendor. Thereafter, one counterpart of the sample was sent in the
intact condition to the Public Analyst's Office along with two other
counterparts along with letter dated 26.12.1995. The said samples
were tested by the Public Analyst and upon examination, the samples
were found to be adulterated. The reason which was assigned by the
Public Analyst in his report, was that artificial colour was not declared
as an ingredient in the said sample, which was otherwise found
present in the sample. Upon receipt of such note, the Local Health
Authority had directed the Food Inspector to proceed with the
complaint. Necessary sanction under Section 20 of the Act was
obtained from the Competent Officer, this led to lodging of the
complaint before the court of learned Magistrate, Gondal, which was
registered as Criminal Case No.516 of 1996.
2.2 The compliant was filed on 22.04.1996 alleging violation of
Sections 2(1-a), (a), (b), j) and (1) and 7(1)(5) of the Act read with
provisions of Section 16 of the said Act. The learned Magistrate
proceeded with the complaint while dispensing with the recording of
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the statement of the public servant, issued summons upon the
respondent-accused by order dated 22.04.1996. The accused had
appeared before the trial court and had filed an application under
Section 13(2) of the Act enforcing his right to get the second opinion
as regards the counterpart of the sample to be analyzed from the
Central Food Laboratory (CFL). Such application preferred by the
respondent-accused was allowed by the trial court and the rest of the
counterpart of the sample were sent for further analysis to the office
of Central Food Laboratory. The CFL had examined the samples so
recovered and had issued certificate on 12.01.2001, thereby opining
that the sample was adulterated on the ground that it contained pink
and orange shade oil soluble coal tar dyes and the turmeric powder
was also adulterated with rice starches.
2.3 Based on the aforesaid report, the trial court proceeded to
record the statement of the complainant/ PW (1) Food Inspector-
Ajrunbhai Kesarbhai Kher. On the basis of his deposition at the pre-
charge evidence stage, the trial court framed charge against the
accused for the offence punishable under Sections 2(1-a), (a), (b), j)
and (1) and 7(1)(5) of the Act read with provisions of Section 16 of the
said Act.
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2.4 The respondent-accused once again was served with the
summons, who had appeared before the trial court and had pleaded
not guilty for the charges levelled against him and had claimed to be
tried. The trial court proceeded with the stage of recording of
evidence of the prosecution, whereby the prosecution had apart from
examining the complainant, had examined the panch witnesses, who
had in fact supported the case of the prosecution. The learned
Magistrate after considering the evidence brought on record by the
respective parties at the end of the trial, had recorded acquittal of the
respondent-original accused. The original accused was acquitted
mainly on the ground that the mandatory provisions of Rule 14A of
the Rules framed under the Act have not been followed by the Food
Inspector. While recording the findings of the fact, the learned
Magistrate noted that though sample collection process failed to
meet with the required standards, the bottles in which the sample of
turmeric powder were collected, were not shaken. The wooden
container in which the aforesaid samples were collected, were not
sealed. The trial court also noticed that when the search and seizure
was carried out, two independent witnesses of the same locality were
not present. In such circumstances, the failure to produce key witness
at search and seizure, has defeated the case of the prosecution.
Having recorded the aforesaid findings, the trial court arrived at a
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conclusion that the mandatory provisions of Rule 14 of the Act have
not been scrupulously followed by the Food Inspector, thereby the
prosecution had failed to establish the guilt beyond a reasonable
doubt thereby acquitting the respondent-accused for the offence
alleged.
3. Heard learned APP Mr. Manan Mehta for the appellant-State
and learned advocate Mr. Tushar L. Sheth for the respondent-original
accused. The arguments were canvassed by the learned advocates for
the respective parties and the matter was kept for orders.
4. Learned APP Mr. Manan Mehta appearing for the appellant-
State has invited my attention to the findings and reason assigned by
the trial court. Learned APP has relied upon the evidence of the
complainant/Food Inspector (PW No.1) - Ajrunbhai Kesarbhai Kher at
Exh.34, Kalyanbhai Chhotubhai Kunbi (PW No.2) at Exh.60 and
Maheshbhai L. Dudhatra (PW No.3) at Exh.157. While referring to the
evidence of the Food Inspector, the learned APP has submitted that
the appreciation of evidence of the said witness clearly goes to
establish that the muddamal sample was sent to the Public Analyst in
sealed condition and in the same manner, the same was also
forwarded to the Central Food Laboratory. According to learned APP,
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the aforesaid samples were tallied with specimen impression or seals
applied separately along with copy of memorandum sent with the said
samples. The reliance was placed upon the reports issued by the
respective laboratories, wherein reference is made to the details of
the samples drawn by the Food Inspector. The sample of the Turmeric
powder was anaylized and tested by the Public Analyst and the
physical examination of such samples indicated that it was free from
any in fact insect and mould growth. However, upon further
examination, it was confirmed that the sample was adulterated
inasmuch as in absence of any details of labels reflecting the contents
of the sample, the presence of pink and orange shade oil soluble coal
tar dyes were noticed. Apart from the aforesaid colour content, the
microscopical examination of the sample reveals the presence of rice
starch. It is in this facts, the Public Analyst had arrived at a conclusion
that the Turmeric powder was adulterated.
4.1. Learned APP has further submitted that both these reports
have been proved and admitted as evidence at Exh.28 Form II and
Exh.73 Form III respectively. Learned APP, thereafter, referred to the
evidence of the panch witnesses and has submitted that even if the
panchas have turned hostile or they do not support the case of the
prosecution, their evidence in totality could not have been
disregarded by the trial court. The reliance was placed
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upon the decision of the Hon'ble Supreme Court in the case of State
Of U.P vs Hanif reported in 1992 SCC (3) 100 and in the case of
Prithviraj Dahyabhai Chauhan and Ors. reported in 1992 (1) GLR
711. It was further submitted that the accused can be held guilty even
on the sole evidence of the Food Inspector, if found to be believable.
The reliance was placed upon the panchnama to contend that the
sample was drawn in clean and dry vessel and having proved such
fact, it can be presumed that there was no violation of Rule 14 of the
Act.
4.2 Learned APP appearing for the appellant-State has relied upon
the decision of the Hon'ble Supreme Court in the case of State of
Gujarat vs. Mananbhai Hasanali reported in (1999) 2 GLR 1567. By
making aforesaid submissions, learned APP for the appellant-State has
urged this Court to quash and set aside the impugned order of
acquittal.
5. On the other hand, at the outset, learned advocate Mr. Tushar L.
Sheth has invited my attention to the reasons assigned by the learned
Magistrate while recording the order of acquittal. By referring to the
aforesaid findings as noticed by the learned Magistrate, learned
advocate has submitted that no error can be found with the approach
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of learned Magistrate in arriving at a conclusion that there was
violation of Rule 14 of the Rules framed under the Act.
5.1 The attention of this Court was invited to the order dated
31.07.1998 passed by the learned Additional Sessions Judge in the
revision preferred by the State challenging the order of the learned
Magistrate accepting the application of the respondent-accused of
forwarding the sample for second report while exercising his right
under Section 13(2) of the Act. On the aspect of compliance of the
mandatory provision of Rule 14 is concerned, learned advocate invited
my attention to the panchnama drawn by the Food Inspector while
collecting the sample of Turmeric powder, which was undertaken. The
reliance was placed on the cross-examination of the Food Inspector,
wherein the Food Inspector had admitted that the bottles were
provided from the office and it was not cleaned by him on the spot
while the samples were drawn. This according to the learned advocate
goes to root of the matter.
5.2 He has further submitted that in fact, the samples were not
steered before collecting. While referring to the Analyst's report
placed on record at Exh.73, learned advocate has submitted that the
test which was performed to analyze the solid form of sample i.e.
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Turmeric powder was by way of microscopic analysis. The same test
was applied when it was tested by the second laboratory i.e. Central
Food Laboratory, whose report has been placed on record at Exh.28.
Thus, it is evident that solid form of sample i.e. Turmeric powder was
examined by microscopic test, which is otherwise not approved in law.
The reliance was placed on the decision of State of Gujarat vs.
Dilipkumar Mangaldas Shah and ors. delivered in Criminal Appeal
No.607 of 1999.
5.3 Apart from the aforesaid submission, learned advocate has also
contended that once the order of acquittal is passed in favour of the
respondent-accused, this Court may not intervene while examining
the appeal at the instance of the State under Section 378 (4) of the
Cr.P.C.
6. Having heard the learned advocates appearing for the
respective parties and having perused the evidence on record as well
as taking into consideration the submissions made by learned
advocates appearing for the respective parties, as recorded earlier the
findings of facts arrived by the learned Magistrate, no perversity or
infirmity is pointed out by learned APP for the appellant-State in
recording such facts by the learned Magistrate. Upon close
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examination of the evidence of the complainant along with the
panchnama, what is evident is that the bottles, which were used for
collection of sample were compromised. It has also transpired from
the evidence of the Food Inspector that the sample was collected
without shaking the bottle. The jar which was used for sample
collection was improperly sealed. In such background of the material,
which has come on record, no fault can be found with the findings of
the learned Magistrate about violation of provisions of Rule 14 of the
Act being scrupulously not followed by the Food Inspector while
collecting the sample. Apart from the aforesaid irregularity, specific
contention has been raised by the respondent about the microscopic
test being applied for examination of the sample, which otherwise is
not acceptable in law.
7. In the opinion of this Court, the aforesaid factors are the
essential requirements of law to be considered to establish the
offence and any failure on part of prosecution pays way of benefit of
doubt to be given to the respondent-accused. Considering the fact
that the trial court has recorded acquittal in light of reasons assigned,
this Court is in complete agreement with the view taken by the
learned Magistrate. Hence, the present appeal is not entertained and
is hereby dismissed.
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8. Record and proceedings, if any, be send back to the concerned
court forthwith. Bailable warrant, if any, issued upon respondent-
accused stands cancelled.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
