STATE OF GUJARAT Vs. ROHITKUMAR GOPALDAS

JUDGEMENT

(1.) THE appellant State of Gujarat has preferred the present appeal under Section 378 of the Code of Criminal Procedure challenging the impugned order dated 26. 5. 1995 passed by the learned judicial Magistrate First Class, Jamkhambhaliya- Kalyanpur in Criminal case No. 1009 of 1995 acquitting the accused of the charges under Section 7 and 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as 'the Act' for short ). This court granted leave and admitted the appeal vide order dated 6. 11. 1996.

(2.) THE case of the appellant in short is that, the original complainant food Inspector, while serving in the Khambhaliya Nagarpalika, visited the shop of the accused on 11. 4. 1991, at that time the accused was present and selling the goods lying in his shop. The accused seems to have stored oil tins for selling in his godown. The complainant was accompanied by witness shri Bhimji Lalji Goriya and Babulal Mathuradas Jusab Umar. The complainant in fact collected two samples of ground nut oil, one from the open tin and one from the sealed tin. The present appeal is arising out of the sample which was numbered as 2/91. The another sample was numbered as 1/91. After making payment of Rs. 15/- for purchasing the sample food article and obtaining receipt thereof, the said sample of food article was divided into three equal parts and collected in cleaned glass bottles. The cleanliness of the glass bottles were confirmed by the witnesses present on the scene of collection of sample. The sample Food Article in question in the present case was thereafter sealed as required under the law and the necessary signature of all the concerned were obtained. On 12. 4. 1991 one portion of sample food article namely 1/91 and 2/91 were sent to the public Analyst for analysis. It may be mentioned here that the Public analyst did not receive the sample of food article bearing sample No. 2/91. In stead of that, he had received the sample bearing No. 1/91 in duplicate, meaning thereby, through mistake or whatever reason, the sample food article bearing sample No. 2/91 had not reached the Public Analyst in the first instance. The Public Analyst vide his letter dated 4. 5. 1991 informed that he had received only sample bearing No. 1/91 in duplicate and requested vide his letter dated 8. 5. 1991 to the Food Inspector to send the sample bearing No. 2/91 as only the memorandum was received but sample received along with memorandum was bearing number 1/91. The Food Inspector vide letter dated 15. 5. 1991 Ex. 45 informed the Local Health Authority, rajkot that appropriate action be taken for sending one part of the remaining sample No. 2/1991 to the Public Analyst. It appears from the record that vide letter dated 4. 6. 1991 at Ex. 45, the Local Health Authority received a request from the Public Analyst, Bhuj for sending the sample of food article bearing number 2/91. The Food Inspector under his letter dated 6. 6. 1991 sent the copy of the letter of Public Analyst to Local Health authority, Rajkot, the same is exhibited at Ex. 44. The Public Analyst once again sent request letter on 15th June, 1991 to the Local Health Authority, rajkot, which is at Ex. 46 requesting for the sample of the sample No. 2/91. As it appears from the record that Local Health Authority, Rajkot under his letter dated 21st June, 1991 sent second sample bearing No. 2/91 to Public Analyst, Bhuj through S. T. Parcel. The said letter is at Ex. 47. The public analyst sent his report under his letter dated 19. 7. 1991 intimating that the sample food article was adulterated as it was not in conformity with the standard laid down in the Food Adulteration Rules, 1955 (herein after referred to as 'the Rules' for short ). The Food Inspector submitted relevant document along with report of the Public Analyst to the Local health Authority for obtaining appropriate sanction for lodging prosecution. The Local Health Authority has granted sanction vide letter dated 5. 10. 1991. The complaint came to be lodged on 24. 10. 1991 in the court of learned judicial Magistrate First Class, Jamkhambhaliya. After lodging complaint, the Local Health Authority issued a notice on 30. 10. 1991 under Section 13 (2) of the Act. As appears from the record, that notice was received by the accused's wife. The complainant was examined and the plea of denial was recorded and matter had proceeded further. The trial Court has framed two issues namely (i) whether the prosecution proves that accused has committed breach of the provisions of Food Adulteration Act on account of making adulteration in the ground nut oil? (ii) What order? The first issue is answered in negative and the second issue is answered as per order. After discussing the evidence on record, the learned trial Court came to the conclusion that the accused deserves to be acquitted and accordingly he was acquitted vide order dated 26. 5. 1995. The said impugned order is under challenge in the present appeal.

(3.) HEARD Shri K. C. Shah, learned Addl. P. P. for the appellant and Shri h. N. Joshi, learned counsel for the respondent original accused.