STATE OF GUJARAT Vs. ASHOKUMAR SHITALDAS FIRM

JUDGEMENT

(1.) The appellant State of Gujarat has preferred the present appeal under section 378 of the Code of Criminal Procedure, 1973 challenging the order of acquittal dated 26/9/1995 passed by learned JMFC, Deesa, in Criminal Case No. 557 of 1983, acquitting the accused of the charges under section 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act' ). This Court (Coram: A.N. Divecha, J) admitted the appeal vide order dated 9/1/1997.

(2.) The record shows that this Court (Coram: D.H. Waghela, J) on 18/7/2002 passed an order that the appeal would abate as far as the Respondent no.2 ? Shitaldas Hotchand is concerned, as he has died. The appeal was ordered to be fixed for final hearing in respect of other original accused No.1 and 3 ? Respondents No. 1 and 3 in regular course.

(3.) The case of the prosecution in short is that the original complainant Food Inspector / Respondent No.4 while serving as such, visited the shop of the accused on 16/10/1982. On 16/10/1982 accused no.2 and 3 were present in the shop and were selling the edibles like peppermint etc. After introducing himself as Food Inspector and notifying his intention of purchasing sample food article of peppermint for analysis, he purchased 900 grms of peppermints which was described in local parlance as ?Penda?. The notice under Rule 12 in Form VI notifying his intention to send the food article for public analysis was issued then and there, and the same was countersigned by the accused no.2. The complainant made payment for the sample food article and obtained the receipt thereof. The receipt is produced at exhibit-19. The bill for purchasing the sample food article is at exhibit-20. The sample food article was divided into three equal parts and collected in a clean, dried, odorless plastic bags. The bags were sealed strictly in accordance with law and the duly filled-in slips were affixed thereon. The entire procedure of collecting sample food into three parts and sealing three sample parts and affixing proper seal etc., were done in presence of panch witness and panchnama was drawn in accordance with law. The panchnama is produced at exhibit-76. The memorandum in Form VII was prepared and one part of the sample food article was sent to the Public Analyst for the purpose of analysis and the specimen of seal used for sealing the container and the memorandum were sent separately by registered post to the Public Analyst. The relevant documents have been produced at exhibit-21, 22 and 23. The remaining two parts of the sample food articles were sent to Local Health Authority as required under law. As the food sample was found to be adulterated on account of presence of non permitted rhodemine B coaltar dye as stated in the report of the Public Analyst dated 12/11/1982 which is at exhibit-29, necessary permission from Local Health Authority was obtained for lodging the prosecution against the accused. The concerned Local Health Authority after perusing the record and material and the report of the Public Analyst issued necessary permission for lodging the prosecution which is produced at exhibit-30. After lodging the complaint the intimation was sent to the Local Health Authority so that Local Health Authority may issue requisite notice under section 13(2) to the accused. A copy of the letter dated 31/3/1983 is at exhibit-31 informing the said authority. The Local Health Authority issued notice on 4/4/1983 in due compliance with section 13(2) of the Act informing the accused that they have a right to make an application within ten days to the court for having the sample further tested at Central Food Laboratory. This notice also, as stated by the complainant, was duly served upon the accused.