STATE OF GUJARAT Vs. KISHORKUMAR BHIKHABHAI

JUDGEMENT

(1.) The State of Gujarat has preferred this Criminal Appeal under section 378 of the Code of Criminal Procedure, 1974, challenging the judgment & order dated 25- 6-1991 passed by learned JMFC, Gondal in Criminal Case No. 725 of 1988 acquitting both the respondents (original accused) of the offence under section 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act'). Leave for appeal came to be granted and the appeal was admitted (Coram: K.J. Vaidya, J) vide order dated 7-4-1992.

(2.) Shri. Dinkarrai Vajesankar Mehta, Food Inspector, Gondal Municipality, Gondal - the complainant filed the complaint against the respondents - original accused No. 1 and 2 for commission of offence under section 7 and punishable under section 16 of the Act. The complainant Food Inspector on 15-6-1988 visited business place of the accused wherein the accused, while selling the food article prepared out of milk i.e. popularly known as candy (kulfy), after issuing necessary notice for collecting sample for sending it for analysis he collected sample of candy for sending it for analysis. The sample was divided into 3 equal parts and thereafter the bottles were sealed in accordance with law and obtained necessary signatures as required under the law. One part of the sample was sent to the Public Analyst, Bhuj and remaining 2 parts of the same were forwarded to Local Health Authority at Rajkot. As the samples were found to be adulterated and not in conformity with the standards the entire record was submitted before the Local Health Authority, Rajkot for obtaining appropriate sanction for lodging prosecution against the accused. The Local Health Authority, Rajkot Circle accorded its sanction in writing recorded clearly that he had studied the entire record and the Public Analyst's report dated 15-7-1988 and other relevant papers which were presented to him and after detailed studies of the same the sanction was being accorded. Thereafter the complaint was lodged. After lodging the complaint necessary notices under section 13(2) of the Act were issued to both the accused and the receipts were obtained. As the accused pleaded not guilty to the charges the matter proceeded further. The learned trial judge has framed 2 issues, namely (1) whether it is proved that the food article candy was adulterated ? And (2) what final order ?. The learned Magistrate has answered the first issue in the negative and the second as per his order.

(3.) The complainant Dinkarrai Vajesankar Mehta is examined and his deposition is recorded at exhibit-32. Panch witness Dinesh Gopalbhai is examined and his deposition is recorded at exhibit-34, the required statutory written notices for collecting sample and copy thereof is produced at exhibit-19, the panchnama is produced at exhibit-21, the forwarding letter sent to the Public Analyst is at exhibit-23, the receipt of the letter and 'sample is at exhibit-24, the report of the Public Analyst is produced at exhibit-26, the necessary consent under section 20 of the Act is at exhibit-29 and the notice under section 32 is produced at exhibit-30 and receipt of the said notice is at exhibit 31 and 32. The charge sheet is produced at exhibit-36. The deposition of the complainant indicates clearly that there was due compliance with the provisions of the Act and the Rules in collecting the samples, forwarding the same and receiving the report of the Public Analyst and obtaining consent for lodging the prosecution. It is important to note at this stage that in cross examination only one suggestion was made to the complainant on behalf of the defence that the sanction at exhibit-29 does not show as to how sample of the food article was adulterated and the sanction at exhibit-29 does not disclose as to under which provisions of the Act the offence was committed and that the sanction is silent about the same being granted in 'public interest. It was recorded that there was no further cross examination. So far as panch witness's deposition is concerned, he supports the version of the complainant and it is important to note that there was no cross examination of this witness by the defence.