GUNVANTRAY CHHOTALAL BHATT Vs. MOHMAD KUNJUMAL

JUDGEMENT

(1.) This appeal has been preferred by the appellantoriginal complainant against the judgment and order dated 22-6-1982 passed by the learned Addl. City Sessions Judge, Ahmedabad in Criminal Appeal No. 40 of 1982 whereby the learned Addl. City Sessions Judge allowed the appeal preferred by respondent No. 1 accused herein and quashed and set aside the judgment and order dated 27-1-1982 passed by the learned Metropolitan Magistrate Court No. 6 at Ahmedabad in Summary Case No. 67 of 1980 and acquitted the respondent No. 1 accused for the offence punishable under Sec. 16(1)(A) of the Prevention of Food Adulteration Act.

(2.) The prosecution case in brief is that one G. C. Bhatt, Food Inspector of the Ahmedabad Municipal Corporation (Orig. complainant) went to Gineva Restaurent near Idgah Police Chowky, Ahmedabad on 18-7-1980 at about 9.00 a.m. respondent No. 1-accused is the manager of the said hotel. Original accused No. 1 is the owner of the said hotel. At the relevant time, original accused No. 1 was absent while respondent No. 1 herein was present in the said hotel and was running business of selling articles of food prepared from groundnut oil. Thereafter, complainant purchased 400 grams groundnut oil from respondent No. 1-accused at the rate of Rs. 11.00 per kg. from one vessel containing 4 kg. of groundnut oil. Thereafter, complainant called panchas and prepared samples of said groundnut oil as per the provisions of Prevention of Food Adulteration Act ('PFA Act' for short) and sent the same to the Public Analyst for analysis. On receiving report from the Public Analyst, it was found that the sample was adulterated and therefore, after obtaining written consent of the competent authority as required under Sec. 20 of the PFA Act, complainant filed a complaint against both the accused for the offence punishable under Sec. 16(l)(A)(i) of the PFA Act. Both the accused came to be tried by the learned Metropolitan Magistrate, Court No. 6, Ahmedabad, who after appreciating evidence led by the parties, by his judgment and order dated 27-1-1982, acquitted the original accused No. 1 but convicted accused No. 2-respondent No. 1 herein for the said offence and sentenced him to suffer simple imprisonment for 3 months and a fine of Rs. 500.00, in default of payment of fine, to suffer further Simple imprisonment for one month. In appeal, the learned Addl. City Sessions Judge by his impugned judgment and order dated 22-6-1982 passed in Cri. Appeal No. 40 of 1980 allowed the said appeal and quashed and set aside the judgment and order of learned Metropolitan Magistrate and acquitted respondent No. 1 accused. The learned Addl. City Sessions Judge acquitted the respondent No. 1-accused mainly on the ground that the prosecution has failed to explain variance between the report of Public Analyst (Exh. 10) and report of Director of Central Food Laboratory (Exh. 2), that the provisions of Rule 4(2) of the PFA Rules which are mandatory in nature have not been complied with hence the present appeal.

(3.) It has been submitted by the learned Counsel for appellant-original complainant that the learned Addl. City Sessions Judge has committed serious error in acquitting the respondent No. 1-accused on technical ground that the provisions of Rule 4(2) of the PFA Rules have not been complied with While preparing the sample and sending it for analysis to the Director of Central Food Laboratory. The learned Counsel for the appellant has further submitted that the learned Addl. City Sessions Judge was also in error in observing that there is great variance between the report of Public Analyst (Exh. 10) and report of the Director, Central Food Laboratory, Pune (Exh. 2) and the same has not been explained by the prosecution. According to the submission of the learned Counsel for the appellant. Rule 4(2) of the PFA Rules is complied with and further that Rule 4(2) is not mandatory in nature and, therefore, non-compliance of the same will not cause any prejudice to the accused.