Gujarat High Court
State Of Gujarat vs Dipakkumar Chimanlal Shah - M/S Zalak ... on 2 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1113 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
DIPAKKUMAR CHIMANLAL SHAH - M/S ZALAK ENTERPRISE
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Appearance:
MS.C.M.SHAH, APP for the Appellant(s) No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/07/2025
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 07.04.2011 in Criminal Case No.13 of 1995 passed by
the learned Metropolitan Magistrate, Court No.8, Ahmedabad
(hereinafter referred to as 'the learned Trial Court'), whereby, the
learned Trial Court has acquitted the respondent - accused from
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the offences punishable under Sections 2(1-a)(a) and (m), 7(1) and
16(1)(a) 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 complainant was serving as a Food Inspector and
on 07.09.1994 at about 10:00am, he along with J.N.Soni, Food
Inspector and T.V.Makwana, Helper, visited the shop of the
accused running in the name and style of "Zalak Enterprise" and
had purchased 450gram of Deepak Brand Filtered Groundnut Oil
and paid an amount of Rs.19.80 for the oil and got the receipt for
the same from the accused. The sample of groundnut oil was kept
in three glass bottles and the bottles were sealed. The Food
Inspector put his signature as well as signatures of the panchas
and the seals and after following the prescribed procedure, the
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one sample oil bottle was sent for analysis to the Public Analyst.
On the sample being found adulterated, after obtaining the
necessary sanction the complaint was filed before the Court of the
Chief Metropolitan Magistrate, Ahmedabad, which was registered
as Criminal Case No. 13 of 1995 for the offence punishable under
Section 2(1-a)(a) and (M) and 16(a)(a) of the Act.
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 copies of all the papers were provided to the
accused as per the provisions of Section 207 of the Code. As the
case was a private warrant triable case, the evidence of the
complainant on oath was recorded at Exh.8 and the complainant
produced documentary evidence at Exh.9 to Exh.32. Considering
the evidence on record as a prima-facie are was made out, a charge
was framed by the learned Trial Court at Exh.34 and the statement
of the accused was recorded at Exh.3, wherein, the accused denied
all the contents of the charge and the further evidence of the
prosecution was taken on record. The prosecution examined 2
witnesses i.e. the complainant - Shailesh Somabhai Patel, Food
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Inspector at Exh.8 and PW-2 Maheshbhai Prabhudas at Exh.43 and
has produced documentary evidences from Exh.9 to Exh. 32 in
support of the case.
2.3 After the evidence of the complainant was closed by an
order dated 31.03.2003 passed below Exh.46, the further statement
of the accused under Section 313 of the Code were recorded
wherein in the accused denied the evidence on record. After
hearing the arguments of the learned APP and learned advocate
for the accused and after perusing the documents on record, the
learned Trial Court, by the impugned judgment and order, was
pleased to acquit the accused for the offences punishable under
Sections 2(1-a)(a) and (m), 7(1) and 16(1)(a) of the Act.
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 of acquittal passed by the
learned Trial Court is contrary to law, evidence on record and
principles of natural justice. The learned Trial Court has erred in
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evaluating the evidence on record of the case and without
appreciating the evidence in its real perspective, acquitted the
accused. There are direct and indirect evidence connecting the
respondent with the crime which are produced in the Court and in
spite of the fact, the learned Trial Court, without appreciating oral
as well as documentary evidence on record of the case, straight
way arrived at conclusion that the prosecution has failed to prove
the case beyond reasonable doubt. The learned Trial Court has
erred in not considering the ratio laid down by the judgment of the
Apex Court which are applicable to the facts of the present case
and the impugned judgment and order is perverse and suffering
from legal and factual error apparent on the record. The learned
Trial Court has erred in not considering the evidence of the
complainant and other witnesses which was fully supported the
case of the prosecution. The learned Trial Court has passed the
impugned judgment and order of acquittal is without giving any
cogent and convincing reasons, illegal, invalid and improper, and
therefore, the same requires to be quashed and set aside.
4. Heard learned APP Ms.C.M.Shah for the appellant -
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State. Though served, the respondent No.1 - accused has not
appeared either in person or through an advocate. 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.C.M.Shah 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 the
learned Judge is contrary to law, evidence on record and principles
of justice. The judgment and order of acquittal passed by learned
Judge is based on inferences, not warranted by facts of the case
and also on presumptions, not permitted by law. Learned APP
has urged this Court to quash and set aside the impugned
judgment and order of acquittal and to find the accused guilty for
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the said offence 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 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". (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 ac-
quittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
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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 cir-
cumstances', 'distorted conclusions', 'glaring mistakes',
etc. are not intended to curtail extensive powers of an ap-
pellate Court in an appeal against acquittal. Such phrase-
ologies are more in the nature of 'flourishes of language'
to emphasize the reluctance of an appellate Court to in-
terfere with acquittal than to curtail the power of the
Court to review the evidence and to come to its own con-
clusion.
(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 avail-
able 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 acquit-
tal, the presumption of his innocence is further rein-
forced, 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.
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 or
perversity which could not have been possibly arrived at by the
Court. It is also a settled principle that there is no embargo on the
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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 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 Shailesh Somabhai Patel at Exh.8 and the witness
is the complainant, who has produced the notification of the
Official Gazette, wherein, he was appointed as a Food Inspector at
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Exh.9. The witness has stated that on 07-09-1994 at around
10:00am, he along with Food Inspector J.N.Soni and helper
T.V.Makwana had gone to Juna Madhupur in Ahmedabad at
Zalak Enterprise and the accused was present in the shop. The
complainant introduced himself as a Food Inspector and the
license of the shopt under the Gujarat Essential Articles Licensing
Control and Stock Declaration Order, 1981 was taken, which is
produced at Exh.10.
The accused was selling vegetable oil, groundnut oil
and there were 15 kg. tins and out of the stock, an intimation in
Form-6 about the sample to be taken from filtered groundnut oil of
'Deepak Brand' was given to the accused, which is produced at
Exh.11. One tin of 'Deepak Brand' groundnut oil was taken and it
was a tin of 15 kg. weight with maximum retail price Rs.675/-,
local taxes extra and there was a sticker on the tin, on which,
'Zalak Enterprise' 'Deepak Brand', Ahmedabad was written in
English. The tin was cleaned and lifted and shaken and the sticker
was taken out and 450 grams oil was taken from the tin in a clean
dry steel vessel, which was placed on the weighing scale. The
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price of 1 kg.of oil was Rs.44/- and Rs.19.80 paise for 450 grams of
groundnut oil was paid and the receipt was taken, which is
produced at Exh.12. The accused had given the cash memo, which
is produced at Exh.13, and the witness took three clean and dry
glass bottles, and from the steel vessel, put equal amounts of oil in
each of the bottle and sealed each of the bottles with the dry
wooden cork and closed the bottles. A laq seal was affixed on the
bottle covers and a label was stuck and a sample of the label is
produced at Exh.14. The stamp on the tin was put in a packet and
it was sealed and the same is produced at Exh.15. All the three
bottles were covered with brown paper and stuck by gum and a
code number and serial number was given and the thread on the
bottles was tied and four seals each were put on the thread on the
bottles. A panchnama of the entire procedure was drawn and the
rojkam is produced at Exh.16. The witness took all the three sealed
bottles to his office and kept them in his custody and on
08.09.1994, one bottle was sent to the Local Health Authority with
the Memorandum of Form-7, which was placed in a wooden box
and a white cloth was enclosed and stitched with a needle and
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thread and it was addressed to the Public Analyst at Baroda. The
cloth was sealed with laq and the remaining two samples were
kept in sealed packets and given to the Local Health Authority
M.S.M.Kadri at Gandhinagar by hand. The Local Health Authority
gave a receipt vide the receipt produced at Exh.17. The packet was
sent to the Public Analyst, Vadodara by R.P.A.D., and the receipt
is produced at Exh.18 and the Memorandum is produced at
Exhs.19 and 20. The parcel was received by the Public Analyst and
the postal acknowledgment is produced at Exh.21. The Public
Analyst, Vadodara sent the receipt at Exh.22 stating that the
wooden box was received wherein there were two sealed packets
and the report of the Public Analyst that the sample after analysis
did not conform to the standards and provisions of the Prevention
of Food Adulteration Rules is produced at Exh.23. The details of
the sample is produced at Exh.24 and vide the document produced
at Exh.26, the permission to file the complaint was sought for from
the Local Health Authority and vide the document produced at
Exh.23, details of the firm and partners and their address were
called for. The notice was given to the accused, which is produced
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at Exh.28 and regarding service of the notice correspondence vide
the letter produced at Exh.29 was made to the Post Master
General, Head Post Office, Gandhinagar and the reply of the
Superintendent of Post Office, Gandhinagar was received stating
that the registered letter has been delivered to the addressee and
the same is produced at Exh.30. The registered post
acknowledgment of the notice sent to the accused is produced at
Exh.31 and the complaint was filed before the competent court by
the complainant. During the cross examination by the learned
advocate for the accused, the witness has stated that he did not
seize the label of the tin, from which, the sample was taken and the
accused was not the manufacturer of the oil, but was only a packer
and he did not inquire, from where, the groundnut oil was
brought by the accused. The witness has admitted that Mr.M.S.M.
Kadri has not been appointed as a Deputy Commissioner (Food)
and the paper slip bears the signature of M.S.M.Kadri. This
permission to file the the sanction to file the complaint was given
by J.D.Nayakar and the notice at Exh.28 was sent by the Local
Health Authority. No acknowledgement was received that the
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notice was received by the accused and the letter was sent by
simple post. The document produced at Exh.31 does not bear the
name of any person but only the name of 'Zalak Enterprise'.
8.1 The prosecution has examined PW-2 Mahendrabhai
Prabhudas at Exh.43 and as per the case of the prosecution, the
witness was the panch witness on 07.09.1994 when the
complainant had gone to take the sample at shop of the accused.
The witness has stated that he was called as a panch by the Food
Inspector but he does not know what procedure was undertaken
by the Food Inspector. He was working in the shop of the accused
and he had merely affixed his signature when the Food Inspector
had taken the sample of groundnut oil. He cannot identify the tin,
from which, the groundnut oil was taken and 450 grams of
groundnut oil was taken in a vessel and the groundnut oil was
measured by the accused and given to the Food Inspector. The
witness has not supported the case of the prosecution and has
been declared hostile and has been cross-examined at length by
the learned APP. During the cross-examination by the learned
advocate for the accused, the witness has stated that he was
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working as a Collection Agent for the accused and when the Food
Inspector had come to the shop, he had gone out for collection and
he came and went to do some work of the bank. It was known to
the Food Inspector that he had gone for bank work and that he
was working in 'Zalak Enterprise' and in front of the shop of
'Zalak Enterprise' is a public road and a number of persons pass
by on the road. The accused does not manufacture groundnut oil
but brings the groundnut oil in tankers and does the packing of
the groundnut oil in tins. The accused was merely a packer of the
groundnut oil and was not a producer and when the Food
Inspector had come to the shop, there were other labourers
working in the shop. When the stamp on the tin was removed by a
labourer, some oil from the tin fell in the vessel and the
groundnut oil was measured by the labourer and given and he
was shown the vessel by the Food Inspector. The labourer had
filled the groundnut oil in the bottles and wherever he was asked
to affix his signature, he had done so on the say of the Food
Inspector. He did not read the document which he had signed and
when the labourer was removing the label from the tin and filling
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the oil in the bottles, the Food Inspector was writing the
panchnama. That he had later on come to the shop and had merely
affixed his signature on all the places that he was asked to do so.
9. On minute appreciation of the entire evidence of the
prosecution, the Food Inspector PW-1, Shailesh Somabhai Patel,
who is the complainant, has produced all the documents at Exhs.9
to 31, but in the entire evidence, there is no evidence that the
notice was served to the accused. The letter produced at Exh.29
addressed to the Post Master General, Main Post Office,
Gandhinagar inquires as to whether the letter sent to 'Zalak
Enterprise' has been delivered to the addressee or not and vide the
reply produced at Exh.30, it is stated that the letter under reference
has been delivered to the addressee and the R.P.A.D. is produced
at Exh.31. If the document produced at Exh.31 is produced, it does
not bear the signature of any person and it appears that the
document was sent to 'Zalak Enterprise'. Moreover, there is
evidence on record that the accused was packing the groundnut oil
and he was not the producer or manufacturer of the groundnut oil
and the Food Inspector has not inquired as to where the
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groundnut oil was procured from. If the manner, in which, the
sample was taken is perused, the Food Inspector has stated that
the tin was lifted, shaken and the sample was taken from the 15 kg
tin into a vessel, but there is nothing on record to suggest that the
vessel was cleaned or where was the vessel procured from and
whether the vessel and the bottles were sterilized and free from
any impurities at the time of taking the sample. The is no evidence
whether the bottles in which the samples were taken were clean
and sterilized and whether they were properly closed sufficiently
tight prevant leackage or evaporation. The panch witness, who is
the independent witness PW-2, Mahendrabhai Prabhudas
examined at Exh.43 has stated that the groundnut oil was removed
from the tin by a labour into a vessel, and thereafter, the labour
had filled the groundnut oil in the bottles. There is no evidence as
to whether the sealing of the samples was done properly or not.
Moreover, there is no evidence on record that the sanction to file
the complaint was given by the proper authority and whether the
authority, who has given the sanction to file the complaint, had the
authority to do so. There is no notification of the Deputy
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Commissioner on record, and even though, the Food Inspector
had stated that he was ready to produce the same, it has not been
produced on record. As per the settled principles of law, the
statutory duty has to be performed by a duly designated officer
and a person, who is in charge of the post and is temporarily
performing the duties, cannot be placed on par with the
designated person and if the permission to file the complaint was
given by an in-charge, it is not a valid permission.
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
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
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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
07.04.2011 in Criminal Case No.13 of 1995 passed by the learned
Additional Sessions Judge, Fast Track No.3, A1`hmedabad is
hereby confirmed.
12. Bail bond stands cancelled. Record and proceedings be
sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
