[Cites 14, Cited by 0]

Gujarat High Court

State Of Gujarat vs Navnitbhai Kantibhai Bhavsar on 8 April, 2026

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                          R/CR.A/2707/2008                                              CAV JUDGMENT DATED: 08/04/2026

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                                                                                    Reserved On   : 01/04/2026
                                                                                    Pronounced On : 08/04/2026

                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                              R/CRIMINAL APPEAL NO. 2707 of 2008

                       ==========================================================
                                                     STATE OF GUJARAT
                                                            Versus
                                             NAVNITBHAI KANTIBHAI BHAVSAR & ORS.
                       ==========================================================
                       Appearance:
                       MR YUVRAJ BRAHMBHATT, APP for the Appellant(s) No. 1
                       BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 5
                       BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 4
                       MR DK MODI(1317) for the Opponent(s)/Respondent(s) No. 3,6,7,8,9
                       MR MD MODI(1318) for the Opponent(s)/Respondent(s) No. 3,5,6,7,8,9
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1,2
                       ==========================================================

                          CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER


                                                            CAV JUDGMENT

1.1 Feeling aggrieved by and dissatisfied with the

judgment and order of acquittal dated 09.04.2008, passed by

the learned Judicial Magistrate, First Class, Vansda, in

Criminal Case No.537 of 1998, for the offences punishable

under Sections 7(1)(2)(5) of the Prevention of Food

Adulteration Act, 1954 ('the PFA Act' for short), the appellant

- State of Gujarat has preferred this appeal under Section

378 of the Code of Criminal Procedure, 1973 (for short, "the

Code").

1.2 At the outset, is is required to be noted that

initially, the trial commenced against 11 accused. During the

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trial, original accused No.3 - Smt. Shantaben Bhuvanbhai

Rawal expired and therefore, the case was abated qua her.

Further, as original accused No.8 - Nihil Arunkumar Pandya

(a partner of original accused No.4, which is a partnership

firm viz., Ambika Distributors) was permanently settled in

America and there were no chances of his returning back,

the case was put on dormant file qua him. The rest of the

accused were acquitted by the judgment and order impugned.

Therefore, this appeal is by the State, challenging the

acquittal of original accused Nos.1, 2, 4 to 7 and 9 to 11.

1.3 It is pointed out from the record and also by

producing the death certificates of the concerned that during

the pendency of this appeal, original accused No.1 -

Navnitbhai Kantibhai Bhavsar has expired on 11.08.2019;

original accused No.2 - Kantibhai Premabhai Bhavsar has expired on 02.12.2019; original accused No.5 - Pankajkumar

Pranshankar Pandya has expired on 22.10.2015; original

accused No.6 - Kaushikkumar Babubhai Choksi has expired

on 19.12.2024 and original accused No.11 - Rasiklal

Manekchand Dhariwala has expired on 24.10.2017. Therefore,

this appeal stands abated qua original accused Nos.1, 2, 5, 6

and 11 i.e. present respondent Nos.1, 2, 4, 5 and 9,

respectively.

Accordingly, this appeal is heard qua original

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accused Nos. 4, 7, 9 and 10 i.e. present respondent Nos.3, 6,

7 and 8 only.

2. The prosecution case as unfolded during the trial

before the learned trial Court, in a nutshell, is that the

complainant viz., Mr. S.G. Naik was serving as Food

Inspector and on 24.07.1997 at about 12:00 O'clock, he had

gone alongwith helper and utensils to Dhansukhlal Kantilal

Firm, situated at Kandolpada, Taluka Vansda, wherein

accused No.1 - Navnitbhai Kantilal Bhavsar was selling

different type of food products; Bhagubhai Lallubhai Solanki

remained as panch witness and it was decided to take

sample of Manekchand Gutkha; the complainant purchased

five packets of 100 gms. Gutkha packets, wherein each 100

grams packets contained 50 pouches; the complainant paid

Rs.258/- in cash towards its purchase value and thereafter, the said Guthkha was packed and sealed and after following

due procedure of law in presence of the panch witness, sent

the sample to the Public Analyst, Rajkot, for analysis; after

obtaining the opinion, the said sample of Guthkha was found

mis-branded and adulterated. Therefore, the permission of the

Local Health Authority was obtained and the complaint was

filed by the complainant against the accused in the Court of

learned Judicial Magistrate, First Class, Vansda, being

Criminal Case No.537 of 1998.

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3. The accused pleaded not guilty to the charge and

claimed to be tried. Thereafter, the prosecution led evidence

and on the conclusion of the trial, the learned J.M.F.C.,

Vansda, passed the impugned and judgment and order.

4. In order to bring home the charge, the prosecution

has examined the complainant and has produced documentary

evidence before the trial Court.

5. After hearing both the parties and after analysis

of evidence adduced by the prosecution, the learned trial

Judge acquitted the accused for the offences for which the

charge was framed, by holding that the prosecution has failed

to prove the case beyond reasonable doubt.

6. Learned APP for the appellant - State has

pointed out the facts of the case and having taken this Court

through both, oral and documentary evidence, recorded before

the learned trial Court, would submit that the learned trial

Court has failed to appreciate the evidence in true sense and

perspective; and that the trial Court has committed error in

acquitting the accused. It is submitted that the learned trial

Court ought not to have given much emphasis to the

contradictions and/or omissions appearing in the evidence and

ought to have given weightage to the dots that connect the

accused with the offence in question. It is submitted that the

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learned trial Court has erroneously come to the conclusion

that the prosecution has failed to prove its case. It is also

submitted that the learned Judge ought to have seen that

the evidence produced on record is reliable and believable

and it was proved beyond reasonable doubt that the accused

had committed an offence in question. It is, therefore,

submitted that this Court may allow this appeal by

appreciating the evidence led before the learned trial Court.

7. As against that, learned advocate for the

respondent/s would support the impugned judgment passed by

the learned trial Court and has submitted that the learned

trial Court has not committed any error in acquitting the

accused. The trial Court has taken possible view as the

prosecution has failed to prove its case beyond reasonable

doubt. Therefore, it is prayed to dismiss the present appeal by confirming the impugned judgment and order passed by

the learned trial Court.

8. In the aforesaid background, considering the oral

as well as documentary evidence on record, independently and

dispassionately and considering the impugned judgment and

order of the trial Court, the following aspects weighed with

the Court :

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8.1 If the complaint filed by the complainant is

perused, the same is filed for the offence punishable under

Section 7(i), (ii) & (v) and Section 16(1)(a)(i) of the PFA Act,

as there was storage, manufacture and sale of misbranded &

adulterated Manekchand Gutkha as per Section 2(ia)(a) and

Section 2(ix)(k) of the PFA Act and Rule 32(b) and Rule 65

of the Prevention of Food Adultration Rules, 1955 (for short,

'the PFA Rules'). It is mentioned in the said complaint that

after the sample was sent to the public analyst for analysis,

the public analyst opined that 'Magnesium Carbonate',

detected in the sample, is not mentioned in the list of

ingredients on the lable of sample. Therefore, in contravention

of provisions of Rule 32(b) and Rule 42 of the PFA Rules,

sample of Gutkha Manikchand is misbranded and adulterated.

After the report of the public analyst, in view of the request of the accused, the sample was sent for

certificate of test on analysis to the Central Food Laboratory,

Calcutta. The certificate issued by the Central Food

Laboratory, Calcutta is produced vide Exh.119.

8.2 At the time of leading evidence before the learned

trial Court, the panch witness - Bhagubhai Lallubhai Solanki

had expired and his death certificate was produced vide

Exh.42. The prosecution did not examine the Joint

Commissioner, Food and Drugs Regulatory System, who has

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signed the office order dated 19.06.1996 deputing the

complainant to perform the duties as Food Inspector in the

Food and Drug Control, Valsad Circle.

8.3.1 The prosecution has examined Somabhai

Girdharbhai Nayak as P.W.1, vide Exh.46. He was a notified

Food Inspector and Gazette to that effect was produced vide

Exh.48. He was the Food Inspector, Valsad Circle at the

relevant point of time i.e. on 19.06.1996.

8.3.2 The entire case of the prosecution is based on the

sanction which has been placed on record at Exh.91. If the

said sanction is perused, the said sanction is with respect to

sample No.39 of 1997, which states that there is a breach of

Rule 65 of the PFA Rules, but the sample of the goods

under challenge is sample No.38 of 1997. Thus, the said

sanction states about a different sample and does not pertain

to the disputed sample which was sent for analysis. The

report to that effect is produced vide Exh.62, which states

that the report which was given by the public analyst is

with respect to the sample No.38 of 1997. Though the

number of the report and the date of receipt is the same,

the code and serial number of the sanction do not match

with the report by the public analyst.

8.3.3 Moreover, even in the certificate of the Central

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Food Laboratory, Calcutta, which is produced vide Exh.119,

the same is with regard to sample No.38 of 1997 and not

sample No.39 of 1997. Thus, the prosecution has not been

able to prove that the said sample, for which, the sanction

was granted under Section 20 of the PFA Act, is the same,

for which, the report of the public analyst has been given.

8.4 Moreover, the other factor which will also have to

be taken into consideration by the trial Court is that as per

Section 13(3) of the PFA Act, the certificate issued by the

Director of the Central Food Laboratory shall supersede the

report given by the public analyst under sub-section (1).

Therefore, the report of the Central Food Laboratory,

Calcutta, which has been produced at Exh.119, shall

supersede the report produced by the prosecution at Exh.62

of the public analyst. But, the fact remains that the sanction given by the authority under Section 20 of the PFA Act

(Exh.91) is for sample No.39 of 1997 and also, it does not

mention that what are the documents that were scrutinized

before the sanction was granted.

8.5 It is also required to take into consideration that

whether Rule 62 of the PFA Rules would come to the aid of

the appellant - State Authority to implicate the respondents -

accused under the provisions of the PFA Act, as the fact

remains that there is no sanction under Rule 62 of the PFA

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Rules. The complaint is based on Rule 65 of the PFA Rules,

which pertains to restriction on the use of insecticides and

not Rule 62 of the PFA Rules, which pertains to restriction

on use of anticaking agents like carbonates of calcium and

magnesium, which, according to the report of the public

analyst, are found in the sample seized in this case.

8.6 Be that as it may. However, at this stage, a

reference to certain judgments of the Hon'ble Apex Court and

this Court would be fruitful to refer to.

8.6.1 In a similar set of facts, when the magnesium

carbonate was found in gutkha, this Court, vide order dated

08.10.2020, passed in Criminal Revision Application No.508 of 2004 in the case of State of Gujarat versus Shri Bhuvneshwar Satyaprasad Mishra & Ors., has observed that Rule 62 of the PFA Rules would not be applicable to gutkha.

The relevant paragraphs No.2 to 4 of the said order are

reproduced hereunder :

"2. Ms.C.M.Shah, learned APP submits that as per the requirement of Rule 62 of the Prevention of Food Adulteration Rule, 1955 (for short, "Rules 1955"), restrictions have been put on use of anticaking agents. Even, as per report of the Public Analyst, rule 7(3) of the Rules, 1955 where the test

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for magnesium carbonate was carried out and the result of the analysis shown `positive'. Since the opinion given by the Public Analyst that the substance viz.Gutka was misbranded and the sample had not mentioned the list of ingredients declared on the label and, therefore, also provisions of Rule 62 of Rules were violated.

3. Learned APP further submits that considering the above, it is submitted that order of discharge deserves to be quashed and set aside.

4. Heard learned advocates for the parties and perusing the record of the case, including the impugned order. Even, the learned APP is unable to dispute that gutka is not mentioned, defined or included under the Act and nowhere standards/parameters were prescribed in Appendix-B appended to the Act. In addition to the above, nowhere in the report of Public Analyst it is mentioned that there was breach of any of the standards prescribed under the Act or Rules. Thus, the decision taken by the

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learned JMFC in exercise of power under section 245(2) of the Code of Criminal Procedure, 1973 based on the decisions of various High Courts, cannot be said to be in any manner contrary to law, which requires any interference by this Court in revisional powers."

8.6.2 In the case of State of Gujarat versus Dineshchandra Laljibhai Kanabar and Ors. , decided on

27.04.2018 in Criminal Appeal No.1131 of 2011, it is observed in paragraph 4 as under :

"4. Learned counsel for the respondents has also successfully pointed out, by relying upon the Food Analysis Theory and Practive by S.N.Mahindru [First Edition :

2003] that Magnesium and carbonate are natural ingredients of tobacco and betel nut and if the said food articles is put into the chemical process for obtaining Gutka, it would chemically react to produce MgCo3. The observations are thus in this regard:

"Prosecution shave been launched in gutka pan masala cases under the allegation that these products contained magnesium carbonate as an

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anticaking agent which under the above rule is not permissible. According to A.30 of Appendix B, pan masala may contain, apart from tobacco (not mentioned because gutka masala has not been covered as a food) betel nut, lime, coconut, cardamom, spices, dryfruits etc. Betel nuts contain 66 to 83 mg, cashewnut 349 mg, coconut 355 mg, walnuts 302 mg, coconut meal deoiled 355 mg, cardmom 173 mg, coriander seeds 239 and cumin seed, 475 mg/100g magnesium of the food article.

Calcium carbonate from lime is already there which itself is an anticaking agent. Now one part of magnesium is equivalent to 3.5 parts of magnesium carbonate, then under rule 64 C also, the presence of magnesium carbonate is admissible and not an offence."

Therefore, the magnesium carbonate being a

natural content, it cannot be said to be adulterated.

8.6.3 Moreover, Section 17 of the PFA Act is also

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relevant to refer to, which reads as under :

"[17. Offences by companies -- (1) Where an offence under this Act has been committed by a company --

(a) (i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereinafter in this section referred to as the person responsible), or

(ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company;

and

(b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act

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if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence.

(2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company or any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated.

Explanation.--Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub- section in relation to different establishments or branches or units and the person

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nominated in relation to any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit.

(3) The person nominated under sub-

section(2) shall, until --

                                                        (i)   further        notice      cancelling            such
                                                        nomination        is        received       from         the
                                                        company         by      the      Local         (Health)
                                                        Authority; or

(ii) he ceases to be a director or, as the case may be, manager of the company; or

(iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority.]

whichever is the earliest, continue to be the person responsible :

Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local

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(Health) Authority :

Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made.

(4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary, or other officer of the company, [not being a person nominated under sub- section (2) such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.--For the purposes of this section-

(a) "Company" means any body corporate and includes a firm or other association of individuals;

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(b) "director", in relation to a firm, means a partner in the firm; and

(c) "manager" in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it.]"

8.7 If the facts of the present case are taken into

consideration, it transpires that present respondent No.3

(original accused No.4) is a partnership firm; present

respondent No.6 (original accused No.7) has been stated to be

a partner of the said firm, present respondent No.7 (original

accused No.9) is a Manufacturing Company and present

respondent No.8 (original accused No.10) is stated to be a

Managing Director of the said Manufacturing Company and

there is a mere bald statement that the person, against whom the certain allegations have been made, was a Director

of the Company.

8.8 On perusal of the judgment of the Hon'ble Apex

Court relied upon by the learned advocate for the

respondents in the case of Pepsico India Holdings Pvt. Ltd.

Versus Food Inspector & Anr. reported in 2010 (2) FAC

310, wherein, it is observed by the Hon'ble Apex Court in paragraph Nos. 37 and 39 as under :

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"37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.'s case (supra) upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari Vs. Bharat Sanchar Nigam Ltd. [(2007) 5 SCC 108], which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. It is in such circumstances that the prayer for quashing of the proceedings was rejected.

38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us,

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are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose

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and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product.

39. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.'s case (supra), which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangachari's case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether

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they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company."

8.9 On perusal of the abovereferred judgments, coupled

with the evidence on record, it clearly transpires that the

learned trial Court has properly appreciated the evidence on

record and has not committed any error of fact or law in

acquitting the accused. The prosecution has failed to prove

that sanction under Section 20 of the PFA Act was procured

authorizing a person to initiate the proceedings and also the

fact that the sample that was analyzed was also the same sample which was obtained at the alleged place of offence.

Moreover, in absence of the mention of the method used by

the public analyst for his opinion, the said report also would

not assist the prosecution. There is no doubt that the opinion

of the Expert is admissible in evidence without examining