STATE OF GUJARAT Vs. MOHANBHAI NANJIBHAI

JUDGEMENT

(1.) THE State of Gujarat has preferred this leave to appeal and appeal under Section 378 of the Code of Criminal procedure, 1973 (herein after referred to as the 'code' for brevity) seeking leave to challenge the order of acquittal dated 30/12/2004 passed by learned jmfc, Gondal in Criminal Case No. 547 of 1988, acquitting the respondent/ original accused no. 2 of the charge of commission of offence under section 7 and 16 of the provisions of Food Adulteration Act 1954 (herein after referred to as the 'pfa Act' ). On 27/11/2006 after hearing the learned app, this Court (Coram: S. R. Brahmbhatt, J) called for records and proceedings of Criminal Case no. 547 of 1988 from the trial court which has been received and placed before this Court today. The facts leading to preferring leave to appeal and the appeal deserve to be set out in brief as under.

(2.) THE original complainant Food Inspector at the relevant time while discharging his duties as such in the Rajkot District, on 15/12/1987 visited the grocery and provision store of original accused no. 1, which was run in the name and style of Milan Stores at Kotada Sanghani. The panch witness was called at that place. After introducing himself as Food Inspector he inquired as to who was owner of the shop. Accused no. 1 who was present in the shop informed the food inspector that he was owner of the shop. The grocery items bags were lying in the shop. In one jute bag turmeric powder was stored. The food inspector issued notice in form no. 6 under Rule 12 notifying his intention to collect turmeric powder for analyzing the same by Public Analyst as it appeared him to be adulterated. The office copy of form no. 6 notice signed by vendor and the panch witness is produced at exhibit-46. The food inspector purchased 680 grams of turmeric in powder form on payment of Rs. 12-00 in cash. The receipt was issued by the vendor and the same is produced at exhibit-47 and cash memo is produced at exhibit-48. The turmeric powder was thereafter transferred in to three dried, odourless glass jars/bottles and the same were tightened with air tight corks so as to prevent it from getting mixed with outside particles. The requisite seal containing the number and serial number etc. came to be fastened to the bottles. The Local Health Authority code number, serial number etc. were also pasted on the bottles. The entire proceedings of collecting sample and sealing the same was carried out in presence of the panch and the panchnama was drawn. The vendor was inquired as to where from the turmeric was purchased, the bill dated 9/12/1987 at exhibit-49 was produced by the vendor right then. The panchnama is at exhibit-50. On 15/12/1987 food inspector prepared memorandum in form no. 7 and also prepared the specimen copy of the seal used to seal the bottles and sent one sample to the Public Analyst at Bhuj and also sent specimen copy of seal used to seal the sample subsequently. Local Health Authority was also intimated about the collection of the sample and handed over the remaining portion of the sample food article. The correspondence in this respect have been produced on record. As the sample food article was opined to be adulterated due to presence of coal tar dye and starch, requisite sanction was sought from Local Health Authority for prosecuting the original accused no. 1 and 2. Accused no. 2 was informed of as to who was owner of the firm and accused no. 2 sent letter at exhibit-58 intimating that he was owner of the firm. Thus the permission for prosecuting accused no. l as vendor and no. 2 as producer was sought which came to be granted by competent authority and the same has been exhibited on the record. During pendency of trial it appears that accused no. 1 had died and therefore the trial qua him had abated and in respect of accused no. 2 it had commenced and came to its logical conclusion.

(3.) AFTER the trial, the trial court has come to the conclusion that accused no. 2 cannot be held responsible or guilty of commission of offence of selling adulterated food article to accused no. 1 as the link which is sought to be established for roping the accused no. 2 is very much weak and not proved beyond doubt. The trial court has also held that the prosecution has failed in proving due compliance with mandatory provision of Rule 14 in respect of employing clean and odourless jars and or bottles for collecting sample food article.