S R RAVAL Vs. VIJAYBHAI JIVATRAM LAKHVANI

JUDGEMENT

(1.) AHMEDABAD Municipal Corporation through its Food Inspector, has preferred this application under section 378 (4) of the Criminal Procedure Code, 1973 (hereinafter referred to as the 'code' for brevity) seeking special leave to maintain the appeal preferred against the judgment and order of acquittal passed by learned Metropolitan Court no. 8, Ahmedabad dated 17/12/2005 in PFA Criminal Case No. 146 of 2002. acquitting the opponent/ original accused of the charges under Section 7 and 16 of the Prevention of Pood Adulteration Act, 1954 (hereinafter referred to as the 'act ). This Court (Coram: S. R. Brahmbhat,j) on 14/9/2006 issued notice. In response to the notice Shri. Modi learned counsel appears for opponent no. 1 / original accused.

(2.) HEARD learned counsels of the parties. It was contended on behalf of the applicant that the trial court has erroneously passed order of acquittal on the ground that the prosecution has failed in establishing compliance with mandatory provision of Section 13 (2) of the Act. It is contended on behalf of the applicant that the notice under section 13 (2) of th Act had in fact been issued in the known address of the accused/opponent no. 1, and when the signature on the postal acknowledgment due was not legible, it was not open to the trial court to come to the conclusion that the notice had not been served. It is submitted on behalf of the applicant that, therefore, this application deserve to be allowed and special leave need not to be granted and the appeal be admitted.

(3.) SHRI. Modi, learned counsel appearing for the opponent no. 1/ original accused has submitted that the leave deserves to be refused in view of the fact that it is established on law by now that even if the postal acknowledgment due card bears signature purported to have been that of the accused and, if it is not established beyond doubt that the accused had received notice under section 13 (2) of the Act, it can well be said that the notice under section 13 (2)had remained unserved. Shri. Modi has relied upon decision of this Court in Criminal Appeal No. 882 of 1992 (Coram: D. A. Mehta, J) decided on 1/ 12/2000 in support of his submission that, when the acknowledgment of registered post was available on record and when it was not possible to ascertain with certainty as to who is the recipient of the postal envelop on account of signature not being legible, then the version of the defence that the envelop containing notice under section 13 (2) had not been served deserved to be accepted. Shri. Modi has invited this Court's attention to para-7 of the judgment, which is set out as under:-7. In the present case, on perusal of the record it is found that the local Health Authority had sent statutory notice under section 13 (2) on 12/9/1985 along with the report of the Public Analyst. The acknowledgment of registered post is available on record and i have gone through the acknowledgment as well as the same has been seen by learned counsel of both the sides and it is not possible to ascertain and say with certainty as to who is the recipient of the postal envelope, signature being not legible. In these circumstances, there is no option but to accept the version of the defence that it has not received statutory notice along with the report of the Public analyst and that the prosecution has failed to establish the nexus with the person who is in receipt of postal envelope sent by the local authority with the accused, and further, that such person was authorised to receive such communication on behalf of the accused. Thus, the case of the prosecution would fail on this count also and it is rightly held so by the Trial Court.