Gujarat High Court
State Of Gujarat vs Chunilal Dhirubhai Paghdar - M/S. ... on 2 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1168 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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STATE OF GUJARAT
Versus
CHUNILAL DHIRUBHAI PAGHDAR - M/S. DIVYESH INDUSTRIES & ORS.
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Appearance:
MS. C.M. SHAH, APP for the Appellant(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/07/2025
ORAL JUDGMENT
1. The appeal is filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned Additional Chief Judicial Magistrate, Junagadh
(hereinafter referred to as "the learned Trial Court") in
Criminal Case No. 4453/1993 on 03.01.2011, whereby, the
learned Trial Court has acquitted the respondents for the
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offence punishable under Sections 7(1) and Section 16(1)(A)
(E) of The Prevention Of Food Adulteration Act, 1954
(hereinafter referred to as "the Act" for short).
1.1 The respondents are hereinafter referred to as "the
accused" as they stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 The accused no. 3 - M/s. Divyesh Industries is the
manufacturing firm and the accused no. 2 is the nominee of
M/s. Divyesh Industries, Junagadh. The accused no. 1 is
the partner who has given the sample and as per the case of
the prosecution, on 02.12.1991 at around 17.00 hours, the
complainant - Food Inspector - S.S. Patel went to the firm
and took sample of Eagle Brand Double Filtered Pure
Groundnut Oil and after giving the due intimation
purchased 450 grams of oil. After the entire procedure, the
sample was sent to the Public Analyst, Vadodara for
analysis and as per the report of the Public Analyst, the
sample did not conform to the standards and provisions laid
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down under the Prevention of Food Adulteration Rules,
1955 and hence, the complainant filed a complaint before
the Court of the Chief Judicial Magistrate, Junagadh which
was registered as Criminal Case No. 4453 of 1993.
2.2 The accused were duly served with the summons and
after the accused appeared before the learned Trial Court
and after the due procedure under Section 207 of the Code
of Criminal Procedure was followed. The evidence of the
complainant was on record and the plea of the accused was
recorded at Exhs. 37, 38 and 39 and all the accused denied
the contents of the complainant.
2.3 The prosecution examined 2 witnesses and produced
29 documentary evidences on record in support of their
case and after the learned the learned APP filed the closing
pursis, the further statements of the accused under Section
313 of the Code of Criminal Procedure, 1973 were recorded,
wherein, the accused denied all the evidence of the
prosecution on record. The accused refused to step into the
witness box or examine witnesses on their behalf and stated
that a false case has been filed against them. After the
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arguments of the learned APP and the learned advocate for
the accused were heard, the learned Trial Court by the
impugned judgement and order was pleased to acquit all the
accused from the charges levelled against them.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, 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 and evidence on record and the
learned Trial Court has not appreciated the fact that all the
witnesses have supported the case of the prosecution and
during the cross-examination, nothing adverse has been
elicited in favor of the respondents. The case has been
proved beyond reasonable doubt and the prosecution has
successfully established the case against the respondents
and the judgment and order of acquittal is unwarranted,
illegal, and without any basis in the eyes of the law and the
reasons stated while acquitting the respondent are
improper, perverse and bad in law. Hence the impugned
judgment and order passed by the learned Trial Court
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deserves to be quashed and set aside.
4. Heard learned APP Ms. C.M. Shah for the appellant
State. Though served, the respondent nos. 1 to 3 have not
appeared either in person or through an advocate to make
any submissions. Perused the impugned judgement and
order of acquittal and have reappreciated the entire
evidence of the prosecution on record of the case.
5. Learned APP Ms. C.M. Shah has taken this Court
through the entire evidence of the prosecution on record of
the case and submitted that the complainant has fully
supported the facts of his complaint. The impugned
judgement and order is perverse and learned APP has urged
this Court to quash and set aside the same and find the
respondent guilty for the offences.
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 regarding the scope of
interference in acquittal appeals in the case of Chandrappa
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& Ors. Vs. State of Karnataka reported in 2007 (4) SCC
415, wherein, the Apex Court has observed as under:
Recently, in Kallu Vs. State of M.P. (2006) 10 SCC 313, 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".
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;
(2) The Code of Criminal Procedure, 1973 puts no
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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 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.
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7. The law with regard to acquittal appeals is well
crystallized and in acquittal appeals, there is presumption
of innocence in favour of the accused and it has finally
culminated when a case ends in an acquittal. The learned
Trial Court has appreciated all the evidence and when the
learned Trial Court has come to a conclusion that the
prosecution has not proved the case beyond reasonable
doubts, the presumption of innocence in favour of the
accused gets strengthened. There is no inhibition to re
appreciate the evidence by the Appellate Court but if after
re appreciation, the view taken by the learned Trial Court
was a possible view, there is no reason for the Appellate
Court to interfere in the same.
8. In light of the above settled principle of law, the
evidence of the prosecution is dissected and the
prosecution has examined PW1 - Shailesh Somabhai Patel
at Exh. 45 and the witness is the complainant who has
produced the copy of the Gazette, wherein, he was
appointed as a Food Inspector at Exh. 46. The witness has
stated that on 02.12.1991, he had gone to Junagadh and
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had taken the sample of Eagle Brand Double Filtered Pure
Groundnut Oil from Divyesh Industries situated at Jai
Bhavani Estate and the intimation in Form 6 was given
which is produced at Exh. 47. Out of the 300 tins that were
at the Estate, one tin was taken out and cleaned by a cloth
and the label was taken out and 450 grams of oil was taken
in a clean and dry vessel after bending the tin. The cost of
the oil was Rs. 38/- per kilo and an amount of Rs. 17.10/-
was paid to the accused no. 1 for the 450 grams of oil and
the oil was put in three clean, dry and transparent glass
bottles in equal quantities. The bottles were covered with
wooden corks and the laq seal was affixed on the corks. The
bottles were labeled and the office copy of the label is
produced at Exh. 48 wherein the necessary details have
also been mentioned. The receipt for the amount given for
the oil is produced at Exh. 49 and the bill given by the
accused is produced at Exh. 50. The gate pass of Divyesh
Industries is produced at Exh. 51 and label on the tin is
produced at Exh. 52. The witness has stated that the
panchnama regarding the entire procedure was drawn in
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the presence of the panch witness and the panchnama is
produced at Exh. 54. On 03.12.1991, the witness had gone
to the Commissioner's Office, Junagadh and the Local
Health Authority was informed and one bottle was sent to
the Public Analyst through helper - N. B. Purania. The
Memorandum Form 17 is produced at Exh. 55 and the
letter by which the sample and seal was sent is produced at
Exh. 57. The remaining two parts of the sample were sent
to the Local Health Authority by the letter produced at Exh.
57 and a receipt from the Public Analyst, Vadodara that the
samples were received through N. B. Purania is produced at
Exh. 58. After the report of the Public Analyst was received
which is produced at Exh. 60, the letter produced at Exh.
62 was sent to the accused no. 3 demanding for the details
and information was received from the Local Health
Authority which is produced at Exh. 64. The license of the
accused no. 3 is produced at Exh. 65 and the letter seeking
permission to file the complaint, written by the complainant
to the Local Health Authority is produced at Exh. 67. The
permission to file the complaint was given by the Section
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Officer, Health and Family Welfare Department which is
produced at Exh. 69 and thereafter, the complainant filed
the complaint before the Court of the Judicial Magistrate
First Class, Junagadh. During the cross-examination by
the learned advocate for the accused, the witness has
stated that when he had gone to take the sample, the
packing of loose groundnut oil into tins was being done and
Food Inspector - N. B. Patel took the sample of loose
groundnut oil and he had taken the sample of groundnut
oil from the tin. The sample from the loose groundnut oil
that was taken by Food Inspector - N. B. Patel was proper
and legal and in the panchnama it is not mentioned that
the tin in which the oil was packed was a used tin. If
sesame oil is consumed, it is not harmful for human life
and the sanction to file the complaint was given on
29.03.1993. The vessel in which the oil was taken was not
cleaned on the spot and the bottles in which the samples of
groundnut oil was filled were not cleaned on the spot. The
bottles were sealed with wooden corks and no procedure
was undertaken to see that the corks were free from any
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traces of medicine. The samples were analyzed on
05.12.1991 but the report was signed on 13.12.1991 and
from 31.01.1992 to 29.03.1993 there was no
correspondence with the Local Health Authority regarding
the sample. Ahat after 31.01.1992, he was aware that an
offence under the Food Adulteration Act was made out but
the permission to file the complaint was not given for a long
time. The application for reanalysis of the sample was given
on 12.08.1993 and the report of the reanalysis is produced
at Exh. 79 which bears the signature of some person but
does not bear the name of the person who has signed the
same. The sample was received on 14.03.1995 and it was
analyzed on 26.04.1995 and as per Rule 13(2)(D), the
sample has to be analyzed within 30 days. The document at
Exh. 79 which is the report of the CFL is dated 26.04.1995
and the sample was taken on 02.12.1991. There is no
evidence to show that the vessel in which the sample was
poured was taken from the office and in the panchnama it
is not mentioned that the vessel was brought by the
complainant. The procedure for making the container
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airtight was not done as he did not have any machine for
the same and the wooden corks were not cleaned on the
place.
8.1 The prosecution has examined PW2 - Jaman
Naranbhai at Exh. 143 and the witness is the panch
witness who has stated that his signature was taken on the
panchnama but he does not know what was the
panchnama about and has merely identified his signature
on the panchnama produced at Exh. 54. The witness has
not supported the case of the prosecution and has been
declared hostile and during the cross examination nothing
to support the case of the prosecution has come on record.
9. On minute appreciation of the entire evidence of the
prosecution as per the complainant, he had visited the
place of the accused on 02.12.1991 and the sample from
the oil tin was taken. The complainant has produced all the
documents to prove that the sample was taken in the
proper manner but at this juncture it would be appropriate
to refer to Rule 14 of the Prevention of Food Adulteration
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Rules, 1955 regarding the manner in which the samples
have to be collected which reads as under:
14. Manner of sending sample for analysis.
Samples of food for the purpose of analysis shall be
taken in clean dry bottles or jars or in other suitable
containers which shall be closed sufficiently tight to
prevent leakage, evaporation or in the case of dry
substance, entrance of moisture and shall be carefully
sealed.
9.1 In the evidence that has emerged on record in the
deposition of the complainant, the complainant has stated
that he had taken the sample from the tin after cleaning the
tin with a cloth and bending the tin, but there is no
evidence as to whether the contents of the tin were made
homogeneous and the vessel and the glass jars in which the
samples were taken, were sterilized at the time of taking the
sample and whether they were clean. Moreover, the
complainant has stated that the glass jars were closed with
wooden corks, but there is no evidence as to whether the
bottles were closed, sufficiently tight to prevent leakage or
evaporation, and whether they were made airtight. The
learned Trial Court has discussed the manner in which the
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sample was taken by the complainant and has concluded
that there was a clear breach of Rule 14 of the Prevention of
Food Adulteration Rules, 1955.
The complainant has filed the complaint on
12.08.1993 and after taking the sample on 02.12.1991, the
report of the Public Analyst which is produced at Exh. 60
was received on 16.12.1991, wherein, the report shows that
the "Baudouin Test for tin oil was positive" and showed 35
R. Units, whereas, the maximum was 15 R. Units. Hence,
on 16.12.1991, when the report of the Public Analyst was
received, it was within the knowledge of the complainant
that the sample does not confirm to the standards and
provisions laid down under the Prevention of Food
Adulteration Rules, 1955 and that an offence under the
Food Adulteration Act was made out but thereafter after a
long gap of one year and eight months, the complaint has
been filed before the Chief Judicial Magistrate, Junagadh.
There is no explanation regarding the huge delay and the
learned Trial Court has discussed this aspect in detail.
Moreover, the manner in which the sample was seized has
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not been followed as per the law and the mandatory rules
have not been followed in the sampling in taking of the
sample.
10. In view of the settled position of law in the decisions of
Chandrappa (supra), 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
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.
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11. The impugned judgement and order of acquittal
passed by the learned Additional Chief Judicial Magistrate,
Junagadh in Criminal Case No. 4453/1993 on 03.01.2011,
is hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
(S. V. PINTO,J)
VASIM S. SAIYED
