Gujarat High Court
State Of Gujarat (Thro'Nitinkumar ... vs Bhovanbhai Gigabhai Patel (Vendor & ... on 21 April, 2025
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1274 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
=============================================
Approved for Reporting Yes No
=============================================
STATE OF GUJARAT (THRO'NITINKUMAR JASHWANTLAL
GANDHI)
Versus
BHOVANBHAI GIGABHAI PATEL (VENDOR & OWNER)
=============================================
Appearance:
MS JIRGA JHAVERI, APP for the Appellant(s) No. 1
MR DK MODI(1317) for the Opponent(s)/Respondent(s) No. 1
MR MD MODI(1318) for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 21/04/2025
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 04.02.2011 in Criminal Case No.906 of 1997 passed by
the learned Judicial Magistrate First Class, Keshod (hereinafter
referred to as 'the learned Trial Court'), whereby, the learned Trial
Court has acquitted the respondents - accused from the offences
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
punishable under Sections 2(i-a)(a), 2(i-a)(b), 2(i-a)(c) and 2(i-a)(m)
read with Rules 23 and 5 and also Sections 7(1), 7(5) and 16 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 accused Bhovanbhai Gigabhai Patel was doing the
business of grains and groceries in the name and style of Patel
Bhovanbhai Gigabhai Grains Groceries Merchant, Near Vegetable
Market, Keshod and the complainant Nitinkumar Jashwantlal
Gandhi was working as a Food Inspector in the Office of the
Assistant Director, Food and Drugs Control Administration,
Junagadh. On 28.01.1997 at around 11.00am, the complainant
Nitinkumar Jashwantlal Gandhi visited the shop of the accused
and purchased 450grams chilli powder from the packet Mahavir
Masala Agmark Chilli Powder and made three parts of the sample,
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
sealed and seized it. The sample was sent to the Public Analyst,
Food and Drugs Laboratory, Vadodra, and as per the report of the
Public Analyst, No.Q-1/648/97 dated 19.02.1997, the sample had
non-permitted oil soluble synthetic pink and orange color, and had
the presence of wheat starch. The sample was adulterated and the
complainant filed the complaint under Sections 2(i-a)(a), 2(i-a)(b),
2(i-a)(c) and 2(i-a)(m) read with Rules 23 and 5 of the Prevention of
Food Adulteration Act, 1954. The sample was prohibited from sale
under Sections 7(1) and 7(5) of the Prevention of Food
Adulteration Act, 1954 and the accused had also committed an
offence under Section 16 of the Prevention of Food Adulteration
Act, 1954, and hence, the complaint was filed before the Court of
the Judicial Magistrate First Class, Keshod, which was registered
as Criminal Case No. 906 of 1997.
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 copy of the complaint and relevant papers
were provided to the accused as per the provisions of Section 207
of the Code. After the pre-charge evidence was recorded, a charge
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
was framed by the learned Trial Court at Exh.62 and the statement
of the accused was recorded at Exh.63, wherein, the accused
denied all the contents of the charge and the entire evidence of the
prosecution was taken on record. The prosecution examined 2
witnesses and has produced 34 documentary evidences in support
of the case.
2.3. After the closing pursis was submitted by the learned
APP Exh.69, the further statement of the accused under Section 313
of the Code was recorded. After hearing the arguments of the
learned APP and learned advocate for the accused and after
perusing the documents on record, the learned learned Trial
Court, by the impugned judgment and order, has acquitted the
accused for the aforesaid offences.
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 passed by the learned Trial
Court is contrary to law, evidence on record. The learned Trial
Court has has not properly appreciated the oral as well as
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
documentary evidence on record it its true spirit and has failed to
establish the case beyond reasonable doubts. The learned Trial
Court has erred in appreciating the evidence in the form of report
of Public Analyst and also the evidence of the complainant which
clearly connects the accused with the crime and the offences
registered against him. The learned Trial Court has erred in
holding that the sanction given seems to be given without any
application of mind and without appreciating the papers on record
and therefore, it cannot be valid and legal as per Section 20 of the
Act and hence, the accused is entitled to get the benefit. The
learned Trial Court has also erred in screening the set of
documentary evidence which gets corroboration with the evidence
of the complainant. The learned Trial Court has erred in
appreciating the fact that the offence under the Act is directly
connected with health of the public at large and in the present
case, there is no reason to disbelieve the evidence of the
complainant and the contents of the panchnama as both the
evidence are supported from the documentary evidence. The
impugned judgment and order of acquittal passed by the learned
Trial Court is illegal, invalid, improper, perverse and bad in law
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
and the same deserves to be quashed and set aside.
4. Heard learned APP Ms.Jirga Jhaveri for the appellant -
State and learned advocate Mr.D.K.Modi for the respondent No.1.
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.Jirga Jhaveri 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
learned Trial Court is contrary to law, evidence on record and
principles of justice. The judgment and order of acquittal passed
by Judge is based on inferences, not warranted by facts of the case
and also on presumption, not permitted by law. Learned APP has
urged this Court to quash and set aside the impugned judgment
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
and order of acquittal and to find the accused guilty for the said
offence. Learned APP has urged this Court to allow the present
appeal 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 learned Trial
Court is based on evidence and the view taken is reasonable and
plausible. It will not reverse the decision of the learned 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 learned 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
acquittal is founded;
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
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
circumstances', 'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive powers of an
appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of 'flourishes of
language' to emphasize the reluctance of an appellate
Court to interfere with acquittal than to curtail the power
of the Court to review the evidence and to come to its
own conclusion.
(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
available 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 acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
learned 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 learned
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 of
perversity which could not have been possibly arrived at by the
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
Court. It is also a settled principle that there is no embargo on the
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 learned 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 Nitinjumar Jashwantlal Gandhi at Exh.23 and the
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
witness has narrated the entire procedure undertaken by him for
taking the sample as per the complaint. The complainant had
stated that the accused was present in the shop and he had stated
that he was the owner of the shop and the complainant had
identified and introduced himself as a Food Inspector. The accused
had given the PFA license of Keshod Nagarpalika and the
signature of the panch was taken on the same and the license is
produced at Exh.26. That there was a 5kg. packing of chili powder
and the accused was informed that the sample was to be taken to
be sent to the Public Analyst and the 5kg. packing plastic bag,
which was stitched by machine stitching, was opened and with a
dry, clean steel spoon, the chili powder was mixed and 450grams
chili powder was taken on a dry clean paper, weighed and an
amount of Rs.18/- was paid towards cost of the same to the
accused in cash. The accused gave the bill for the sale, which is
produced at Exh.29. The accused had stated that he had purchased
the packed chili powder from Jain Spices, Bhadrod Gate, Mahuva
Bandar, District Bhavnagar, vide bill No.235 dated 26.12.1996 and
the packing was kept in the same manner and the bill, by which,
the chili powder was purchased, was also given to the
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
complainant, which is produced at Exh.30. On the packing of the
bag, Mahavir Masala Chili Powder, in mark Standard Grade, Jain
Spices, Mahuva Bandar, District Bhavnagar and an agmark slip, on
which, Jain Spices net 5kg., Lot No.05 Standard Grade
Manufacturer 11.12.1996, Expiry Date 10.08.1997, Turmeric
powder, etc. was written. The chili powder was emptied and the
packing bag was also seized and sealed, and the same is produced
before the learned trial Court at Exh.31. That the chili powder was
partitioned in three equal portions and three glass jars, which were
dry, clear, transparent and without any smell, were taken and they
were wiped and cleaned on the spot with a dry clean cloth and
after verification of the same by the panch and the accused, the
chili powder was placed in the jars and closed and sealed with lac
seals. All the glass jars were placed in brown paper and sealed
with gum and the signatures of the authorities was takne on the
paper. They were tied with thread and four lac seals were placed
on each bottle and the panchnama regarding the same was drawn,
which is produced at Exh.33. Memorandum Form No.7 was also
filled-up and the same was sent to the Public Analyst, Food and
Drugs Laboratory, Vadodara for analysis. The Memorandum Form
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
No.7 is produced at Exh.34, the letter, by which, this sample was
sent to the Public Analyst, Vadodara is produced at Exh.35 and the
sample was sent through ST parcel and the forwarding letter is
produced at Exh.36. The specimen seal impression outer cover is
produced at Exhibit 37. A receipt was sent by the Local Health
Authority, that it was received by them and the same is produced
at Exh.39 and the seller Jain Spices, Mahuva was given a Notice of
Form No.6, which is produced at Exh.40. The notice was duly
served to the manufacturer and the registered post
acknowledgment slip is produced at Exh.41. After the report of the
Public Analyst was received, it was found that the sample had
non-permitted pink and orange oil soluble synthetic color and
there was the presence of wheat starch, which was not as per rules
and the sample was adulterated and the information was sent to
Jain Spices, Mahuva and the same is produced at Exh.47. A reply
was filed sent by Jain Spices, Mahuva, which is produced at
Exh.49. On perusal of the report, the offense under Sections 2(i-a)
(a), 2(i-a)(b), 2(i-a)(c) and 2(i-a)(m) read with Rules 23 and 5 of the
Prevention of Food Adulteration Act, 1954 and Sections 7(1) and
7(5) of the Prevention of Food Adulteration Act, 1954 was found,
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
and hence, after the sanction, which is produced at Exh.54 was
received, the complaint was filed before the Court of the Judicial
Magistrate, First Class, Keshod. During the cross-examination by
the learned advocate for the accused, the witness has stated that at
the time of taking the sample, helper N.V.Porania was with him.
That near the shop of the accused, there were other shops, which
were selling non-edible items also and there were a number of
persons around. That he tried to get another panch witness, but he
could not find any panch witnesses as they had refused, but he did
not inform them that refusal to be a panch witness would
constitute an offense. The sample that was taken was in a machine
sealed stitched pack of 5kg. and the packing was purchased by the
accused from Jain Spices, Mahuva. The bill for purchase of the
same was also given by the accused and on the bag, Mahavir
Masala Chili Powder, agmark Jain Spices Standard Grade was
written. The sample, that was purchased from Jain Spices, was
kept in the same manner by the accused and on 28.01.1997, one of
the sample was sent by ST parcel to the Public Analyst. That he
does not know the situation of the sample till it reached the office
of the Public Analyst, Vadodara, and in the report of the Public
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
Analyst produced at Exh.46, it is not mentioned that the sample
was harmful to public health. That the report at Exh.46 does not
show the procedure. by which, the analysis was done and he does
not remember whether the spoon, by which, the sample was made
homogeneous was the one that was being used by the accused.
That in the panchnama, it is not mentioned that the spoon was
cleaned on the spot and the bottles, in which, the samples were
taken, were not made clean and dry in a scientific manner. That
the bottles, in which, the samples were filled were empty for about
one inch deep and air could be filled in this empty space. The
panchama was written by him in his own handwriting and as the
procedure was taking place and the samples were sealed and
packed by him. That the accused was not given the notice under
Section 13(2) by the Local Health Authority.
8.1. The prosecution has examined PW-2 Narsinhbhai
Vashrambhai at Exh.68 and the witness is the panch witness who
has stated that he was called to be a panch witness on 28.01.1997 at
the shop of Bhuvanbhai Gigabhai near Keshod Vegetable Market.
That when he went to the shop, Bhuvanbhai Gigabhai, the Food
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
Inspector and one another person was present and Bhuvanbhai
had opened one chili powder packet, measured the same and gave
it to the Food Inspector, who packed it in glass bottles, sealed it
and made the necessary papers and had asked him to affix his
signature. He does not know what was written on the bag, from
which, the chili powder was taken and he does not know whether
the amount for the chili powder was paid. The witness has
identified his signature on all the documents and during the cross-
examination, he has stated that his shop is situated exactly
opposite the shop of Bhuvanbhai. There are a number of shops
surrounding the shop of Bhuvanbhai and the vegetable market is
in the same area and is constantly teeming with people. The shop
has also many other non-edible items and the Food Inspector did
not ask him to call another panch witness. The chili powder was
weighed by the accused and it was not mixed by the Food
Inspector or any other person or Bhuvanbhai before weighing the
same. The chili powder was taken with a steel spoon, which
belonged to Bhuvanbhai and was generally being used by
Bhuvanbhai to measure items. That the glass bottles were not
cleaned by the Food Inspector or the other person or by
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
Bhuvanbhai in his presence and before using the spoon, no one
had cleaned the same. The panchanama was not given to him to
read and it was not read over and explained to him.
8.2. The prosecution has examined PW-3, Lalitkumar
Lakshmi Shankar at Exh.73 and the witness has given the sanction
for filing the complaint. The witness has stated that he was
working as the Drugs Inspector in the Food, Drugs and Control
Administration and had the additional charge of the Local Health
Authority and his original post was not of the Assistant
Commissioner. The post of the Assistant Commissioner and Senior
Drug Inspector are different and he was having the additional
charge and was the In-charge Commissioner. During the cross-
examination by the learned advocate for the accused, the witness
has stated that in the documents where he has signed, the word in-
charge is not mentioned.
9. On minute perusal of the entire evidence of the
prosecution, it has come on record that PW-3 Lalitkumar Lakshmi
Shankar was not the authorized person to grant the sanction and
the sanction was not properly given by the Competent Authority
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
to grant sanction. The manner, in which, the sample was taken, is
also not proper and the panch witness, who is an independent
witness, has stated that the sample was measured by the accused
with the same spoon, which was being generally used by him for
other products. That prior to taking the sample, it was not
properly mixed and the jars as well as the spoon were not cleaned
by the Food Inspector or the person, who was accompanying him
or the accused prior to placing the sample in them. The manner, in
which, the samples were dispatched, is also not done in the proper
manner and Rule 17(b) of the Prevention of Food Adulteration
Rules, 1955 states that the two parts of the sample must be sent in
a sealed packet to the Local Health Authority immediately, but not
later than the succeeding working day by any suitable means, but
it appears that the sample was taken on 28.01.1997 and it was sent
on 31.01.1997. The learned trial Court has discussed all these
aspects in the judgment and has discussed about Rules 14, 17 and
20, which were not clearly and properly followed and there was a
breach of all the rules and the accused was entitled to the benefit
under Section 19(2) of the Act. That in the entire evidence, it was
not proved that the sample was properly taken and the sealing of
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
the sample was also not done in the proper manner, which has
also been discussed by the learned Trial Court. Admittedly, the
sample has been collected after a sealed bag was opened and the
accused had purchased the sealed bag from the manufacturer and
had given the bill, from whom, the chili powder was purchased,
which is produced at Exh.30, and the bag, in which, the chili
powder was packed, is also produced at Exh.31. Hence, the
accused is entitled to the benefit of Section 19(2) of the Act.
Moreover, the report of the Public Analyst produced at Exh.47
does not state the method, by which, the analysis was done and
the sanction has not been granted by the Competent Authority.
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
NEUTRAL CITATION
R/CR.A/1274/2011 JUDGMENT DATED: 21/04/2025
undefined
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
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
04.02.2011 in Criminal Case No.906 of 1997 passed by the learned
Judicial Magistrate First Class, Keshod is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned learned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S.KAZI
