STATE OF GUJARAT Vs. PUNABHAI RAMABHAI MACHHI

JUDGEMENT

(1.) HEARD Shri. K. C. Shah, learned APP for the appellant and Shri. E. E. Saiyed, learned counsel for the respondent. 1. The appellant State of Gujarat has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 31-1-1996, recording acquittal of the accused/ present respondent in Criminal Case No. 438 of 1987 by learned JMFC, Lunawada. The leave to appeal was granted by this court on 30-10-1996 and it was ordered to be expeditiously heard. The original complainant one Shri. Kantibhai A. Patel, Food Inspector, godhra, Panchmahals has stated in his complaint that he was duly appointed Food Inspector vide Government Gazette dated 19-5-1983.

(2.) ON 20-3-1987 at about 7. 00 O' Clock in the morning at Lunawada near the cross road of Jawaharbaug in the presence of panch Shri. Ranchhodbhai Saburbhai Bhoi, he intercepted the accused (Respondent) who was riding a bicycle with buffalo milk in two canes, on the doubt that he was carrying adulterated milk. He has further stated in his complaint that he informed the original accused that he is the Food Inspector and he himself purchased milk for sending it for analysis. The complainant has further stated that he purchased the milk from one of the canes from the accused after making payment of rs. 3-00 i. e. the price of the milk and in presence of panch he issued receipt thereof and the receipt was counter signed by the panch also. Thereafter, he divided the milk into 3 equal quantity and packed the same in 3 clean glass bottles whereon he applied the seal and signature etc, and also obtained signature of the panch in accordance with provisions of Prevention of Food Adulteration Act, 1954 ( hereinafter referred to as the 'act' ). The Local Health Authority, nadiad was also informed about sending of one sealed bottle for public analysis. As per the report of the Public Analyst the sample-milk appeared to be adulterated milk and, therefore, on 11-5-1987 all the papers were presented along with report of the Public Analyst to the local Health Authority for obtaining his sanction for institution of prosecution against the accused for offense under section 7 (1) (v), section 16 (1) (a) (i) of the Act. The concerned Local Health Authority, nadiad issued the necessary sanction/consent vide order dated 16-51987 and accordingly the complaint was lodged on 27-5-1987 which came to be registered as Criminal Case No. 438 of 1987. The charge was framed by learned Magistrate on 18-11-1992 which is at exhibit 75. The accused was charged with commission of offence under section 7 punishable under section 16 of the Act. The accused pleaded not guilty to the charges and claimed to be tried. The original complainant Shri. Kantibhai Ambalal Patel as prosecution witness gave deposition at exhibit-54. The witness has deposed that he has been duly appointed Food Inspector and he has produced notification of his appointment which is at exhibit-55. He has deposed that when he was working at Godhra as Food Inspector on 20-3-1987 at about 6. 30 to 6. 45 in the morning near Jawaharbaug cross road he along with one food Inspector Shri. Solanki, his helper Shri. Baria and Shri. Patel were present near hotel of Ranchhodbhai Saburbhai Bhoi. He has further deposed that he introduced himself to said Ranchhodbhai that he is the Food Inspector and obtained his consent for being acting as panch witness. At 7. 00 clock the accused was passing by with 2 canes of buffalo milk when he was intercepted and after giving him proper introduction and notifying him that he was intending to collect sample for analysis, he collected 750 m. l. Of buffalo milk from one cane and requisite notice in form No. 6 was issued to the respondent accused. This notice was served upon respondent accused in presence of panch witness. Said notice is produced and marked as exhibit-56. The 750 m. l. Milk was taken in a clean steel vessel on payment of Rs. 3-00 for which necessary receipt was obtained from the accused. In that receipt also the accused and panch witness have affixed their signature which is at exhibit-57. The complainant has stated in his deposition that he divided 750 m. l. Milk in 3 equal part and poured into clean glass bottles and poured 20 drops of formulene in each of the bottles and duly sealed the bottles with air tight lead and affixed necessary seals with proper signatures etc. Thereafter the complainant has deposed that on 21-3-1987 and 22-3-1987 being public holidays one sample was sent to Public Analyst on 23-3-1987 along with memorandum in form No. 7 through his helper Shri Baria and in another seal cover the remaining samples were sent along with memorandum to the Local health Authority, Nadiad. The samples were received in a sealed bottles by the public analyst, receipt to this effect has been produced at exhibit-64 of the record. The receipt issued by the Local Health authority for receiving remaining 2 samples is exhibited at exhibit-66. The complainant further deposed that the public analyst found that the sample was not in conformity with the standards laid down and therefore the same was found to be adulterated. The report and the papers were produced before the Local Health Authority for seeking his sanction for institution of the prosecution against the accused respondent. Local Health Authority vide its letter dated 16-5-1987 issued written permission/sanction for instituting the prosecution against the complainant accused which is at exhibit-70. Thereafter the complaint was lodged before the Court on 27-5-1987 and the complainant identified his signature on the complaint. After filing of the said complaint the Local Health Authority, Nadiad sent a notice affording an opportunity to the accused for having the sample further checked by the Central Food Laboratory as per section 13 of the Act which is at mark 54/1.

(3.) IN his cross examination the complainant has denied the suggestion that the samples were not taken in presence of panch. He has further denied that the hotel owner Ranchhodbhai Saburbhai Bhoi who was acting as panch had not been present at the time of incident. He has denied the suggestion that the steel vessel in which the milk was collected from the cane was not cleaned. He has denied the suggestion that the bottles wherein the milk was poured for sending it to the analyst were not cleaned. He has further denied the suggestion that the preservative was dropped by him was not properly dropped. He has further denied that the bottles were not properly sealed by him. It is important to note that the complainant has in his cross examination stated that he did not remember the name of the Food Inspector who had accompanied him. The complainant in his cross examination has stated that he was accompanied by 2 helpers namely Shri. D. S. Baria and Shri. B. M. Patel. He has admitted that the bottles were usually cleaned in his office and samples are collected and they are sealed. He has further admitted that cleaning of bottles is done by his helper. He has admitted that he does not know who had cleaned the bottles. He has admitted in his cross examination that the bottles were not cleaned in his presence.