STATE OF GUJARAT Vs. NAVALKISHOR DAMODARDAS PATEL

JUDGEMENT

(1.) The learned Judicial Magistrate First Class Bhavnagar appears to hold the view that it is easier for a camel to pass through the eye of a needle than for an owner of an oil mill who sells adulterated oil in packed tins and pleads guilty to it to enter the gates of a jail. This view has been taken by the learned Magistrate notwithstanding the fact that barely three months back the same mill-owner was charged for a similar offence under the relevant section of the Prevention of Food Adulteration Act 1954 (referred to as the P.F.A. Act hereafter) to which he pleaded guilty and had been sentenced to pay a fine of Rs. 180.00. In the background of these facts a notice was issued by the Court in exercise of powers under sec. 439 of the Code of Criminal Procedure to opponents accused Nos. 1 and 2 to show cause why the sentence of fine of Rs. 1000/should not enhanced.

(2.) On July 29 1970 at about 10-00 a.m. Saiyed Mohmad Allarakh Food Inspector of Bhavnagar Municipality purchased a sample of groundnut oil after observing the necessary formalities. Ex. 22 the Panchnama made at the time of the seizure shows that at the time of the raid there were about 98 tins of oil nearby the two storage tanks. In one storage tank there was ground-nut oil stock of about 50 tins. From the 48 packed and sealed tins a sample of 400 grams was taken. This sample was forwarded to the Public Analyst at the Public Health Laboratory Bhuj - Kutch. The analysis made by him disclosed that the ground-nut oil contained in the sample bottle did not conform to the specified standards in two respects. It further disclosed that non-edible oil namely castor oil was found present in the sample. Thereupon the opponents along with four other persons were prosecuted for offences punishable under sec. 7(i) & (ii) of the P.F.A Act. Shri H. C. Sheth Judicial Magistrate First Class Bhavnagar by his judgment and order dated September 15 1971 convicted the opponents-accused Nos. 1 and 2 for the offences with which they were charged and sentenced each of them to suffer rigorous imprisonment for six months and to pay a fine of Rs. 10001.00. The opponents appealed to the Sessions Court. The learned Sessions Judge Bhavnagar came to the conclusion that the sanction for the prosecution on the basis of which the prosecution was lodged was defective. He accordingly allowed the appeal and acquitted the opponents. The Municipality of Bhavnagar approached the High Court by way of Criminal Appeal No. 182172 and called into question the order of acquittal rendered by the learned Sessions Judge. The matter came up for hearing before a Division Bench of this High Court on July 10 1973 Inter alia it was argued that the sanction to prosecute was granted by Shri Thakorebhai acting in his capacity as in-charge Health Officer and that accordingly the sanction was invalid. The Division Bench negatived this contention in terms upon taking the view that sec. 20(1) of the P.F.A. Act authorised a local authority to sanction the prosecution and having regard to the provisions contained in the Gujarat Prevention of Food Adulteration Rules 1961 referred to as the Gujarat Rules a person empowered to carry out the duties of a Health Officer had the competence to grant sanction in view of rule 4 read with rule 2(c). Reliance was placed on the definition of Health Officer contained in rule 2(c). In this connection at the end of the discussion it has been observed by the High Court as under :

(3.) The opponents were served with a notice in exercise of powers under sec. 439 of the Code of Criminal Procedure to show cause why the sentence imposed by the learned trial Magistrate should not be enhanced. Mr. D. O. Vyas has appeared in response to the notice and has urged that this High Court should not disturb the sentence imposed by the learned trial Magistrate in exercise of its revisional powers.