Gujarat High Court

State Of Gujarat vs Maheshdayal Raghuvirdayal Sharma on 16 July, 2025

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                              R/CR.A/1083/2011                             JUDGMENT DATED: 16/07/2025

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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                            R/CRIMINAL APPEAL NO. 1083 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
                                           MAHESHDAYAL RAGHUVIRDAYAL SHARMA
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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 : 16/07/2025

                                                       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 passed in Criminal Case No.72 of 1988 by the learned 2 nd

Additional Chief Judicial Magistrate, Palanpur (hereinafter

referred to as 'the learned Trial Court') on 07.04.2011 , whereby,

the learned Trial Court has acquitted the respondent - accused

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from the offences punishable under Sections 7(1) 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. On 7-9-1987, at around 1300 hours, the complainant,

Food Inspector J.N.Soni visited the shop of the accused at village

Vadgam and introduced himself to the accused who was the

owner of the shop. The accused had placed about 2 kg. of jalebi for

sale in his shop and after the notice for taking the sample was

given to the accused. The complainant purchased 1.5 kg. of jalebi

after following the due procedure. The jalebi was sealed in three

packets and sent to the Public Analyst, Vadodara as per rules, and

after the report was received, it was found that the sample had

non-permitted Methanol Yellow Coal Tar Colour, which was

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artificial colouring matter and did not conform to the standards

and provisions laid down under the Prevention of Food

Adulteration Rules, 1955. The complainant filed the complaint

before the Court of the Chief Judicial Magistrate, Banaskantha at

Palanpur, under Section 7 and 16 of the Act, which came to be

registered as Criminal Case No.72 of 1988.

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 pre-charge evidence of

the complainant on oath was recorded and the complainant

produced 21 documentary evidence in support of his case.

Considering the evidence on record, as a prima-facie case was

made out, a charge was framed by the learned Trial Court at

Exh.67 and the statement of the accused was recorded at Exh.68.

The accused denied all the contents of the charge and the further

evidence of the prosecution was taken on record.

2.3 After the evidence of the complainant was closed, the

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further statement of the accused under Section 313 of the Code

was 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 7(1) and 16 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

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

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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 -

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

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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

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:

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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 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

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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

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

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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, on perusal of the evidence

produced by the prosecution on record, PW-1 Jyotindra Narendra

Prasad Soni - the complainant, has been examined at Exh.36 and

the witness has produced his certificate from the Directorate of

Foods and Drugs Control Administration, Gujarat State, at Exh.37,

the Notification, by which, he was appointed as a Food Inspector

and assigned to the local area at Exh.38 and Exh.39 and has stated

that he was entitled to take the sample from the shop of the

accused. The witness has stated that on 07.09.1987 at around 13:00

hours, he along with helper A.R.Parmar had gone to the shop of

the accused at Vadgam and had given the notice, which is

produced at Exh.40 to the accused. After following the due

procedure, the price of jalebi was Rs.12/- per kilogram and 1.5

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kilograms costed Rs.18/-, the receipt, which is produced at Exh.41,

was given by the accused. The complainant has stated that the

jalebi was placed in clean, dry and transparent polythene bags,

and in each bag, 500 grams of jalebi was placed and the bags were

tied with a a thread and placed in a brown paper, which was stuck

with gum and the sample of the seal, which is produced at Exh.42,

was affixed on each packet. The witness has stated that the

signatures of the witnesses and the accused and his own signature

were affixed on the receipt at Exh.42. A panchnama was drawn in

the presence of witnesses Dahyabhai Kacharabhai Panchal and

Kanjibhai Godadbhai Chauhan regarding the procedure that was

carried out and the panchnama is produced at Exh.43. The witness

has taken the signatures of the panch witnesses and had affixed his

own signature on the panchnama, which began at 13:00 hours and

concluded at 13:45 hours. The witness has stated that thereafter,

the sample was sent with the Memorandum at Exh.44 to the Public

Analyst, Vadodara and the Memorandum is produced at Exh.44.

The remaining two parts of samples were sent to the Local Health

Authority by the document produced at Exh.45. The witness has

produced the receipt, by which, the samples were sent to the

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Public Analyst at Exh.46 and the R.P.A.D. that the samples were

received by the Public Analyst and the Local Health Authority.

After the samples were received, the receipt of the Public Analyst,

which is produced at Exh.50 was received, and the after analysis of

the samples, the report of the Public Analyst was received, which

stated that the sample was received on 10.09.1987 and it was

examined on 14.09.1987, and after analysis, it was found that non-

permitted methanol yellow color was detected in the sample and

the sample did not conform to the standards and provisions laid

down under the Prevention of Food Adulteration Rules. The

report of the Public Analyst dated 06.10.1987 is produced at Exh.52

and the details of sample is produced at Exh.53. After the report

was received by the complainant, the complainant sent a letter,

which is produced at Exh.54 to the Local Health Authority seeking

permission to file the complaint by the document produced at

Exh.54 and the order of the Assistant Commissioner and Local

Health Authority granting permission to file the complaint is

produced at Exh.55. The intimation under Section 13(2) of the Act

was sent to the accused and by the document produced at Exh.56

and the acknowledgement that the letter had been by the accused

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is produced at Exh.57. During the cross-examination by the

learned advocate for the accused the witness has stated that he

does not remember, which shops he visited and on the day of

taking the sample he and the helper had gone to three shops. He

does not remember what samples were taken and he had

examined whether the accused had a license for running the food

joint but in the documents, he has not mentioned the shop number

of the accused. At the time of the taking the sample, there were

other food articles like penda, ladoo, jalebi and other namkeen in

the shop, but he had taken only the sample of jalebi. The panch

witnesses were present in the shop and the signature of the

accused that he was present at the time of drawing the panchnama

at Exh.43 was not taken. After the sample was taken they went to

take another sample from some other shop, and thereafter, they

went to the office and the sample was sent to the Public Analyst on

the next day and till then the sample was kept in his cupboard. He

did he had not given a notice under Section 13(2) of the Act to the

accused. As per the document produced at Exh.52 the examination

the analysis of the sample was done on 14.09.1987, but the report

was dated 06.10.1987.

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8.1. PW-2 Kanjibhai Goddbhai Chauhan examined at

Exh.69 is the panch witness of the panchnama produced at Exh.43,

but the witness has stated that 5-10 years ago, he was waiting at

the Vadgam Bus Stand and his signature was taken by the Food

Inspector in front of the shop. He is known to the accused and the

Food Inspector had taken jalebi and he had taken 150 grams of

jalebi and did not pay the amount of the jalebi in his presence. The

witness has not supported the case of the prosecution and has

been declared hostile and during the cross-examination by the

learned APP, the witness has not stated that the procedure was

followed as stated in the panchnama in his presence.

9. On minute appreciation of the entire evidence of the

prosecution, the evidence that has come on record is that the

sample was taken by the Food Inspector, but if the documents

produced at Exh.40, Exh.41, Exh.42 and Exh.43 are concerned,

there is no mention of the shop number of the accused and the

exact place, from where, the sample was taken. Admittedly,

during the entire procedure, no bill for purchase of the sample has

been taken by the Food Inspector by the complainant and no

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notice under section 13(2) of the Act has been given to the accused.

10. Section 13(2) of the Act, 1984 reads as under :

"13. Report of Public analyst:-

                                   (1) XXX          XXX   XXX

                                   (2)     On receipt of the report of the result of the analysis

under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person , if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

The complainant has admitted that he has not followed

the procedure of Section 13(2) of the Act and the accused has not

got a chance to prove his innocence by getting his sample analysed

from the Central Food Laboratory and if the accused was given

intimation about the report of the Public Analyst, he would have

got the sample analysed from the Central Food Laboratory and the

opportunity to re-analysis the sample has not been given to the

accused. As far as the report of the Public Analyst is concerned, the

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sample was taken by the accused by the complainant on 07.09.1987

and the sample had reached the Public Analyst on 10.09.1987. The

sample was analysed on 14.09.1987, but the report is signed on

06.10.1987. The learned Trial Court has observed that the delay in

preparing the report would raise a doubt about the Public Analyst,

and hence, no explanation forthcoming on record.