STATE OF GUJARAT Vs. ROHIT KUMAR GOPALDAS

JUDGEMENT

(1.) THE appellant State of Gujarat has preferred this appeal under section 378 of the Criminal Procedure Code, 1973 (herein after referred to as the Code for brevity, challenging the order of acquittal passed by learned JMFC, Khambhalia, dated 26/5/1995 in Criminal Case no. 891 of 1991 acquitting the respondent / original accused of the charge of commission of offences punishable under Section 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as SPFA Act ).

(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 Mathurdas Jusab Umar. The complainant in fact collected two samples of groundnut 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 1/91. The another sample was numbered as 2/91. After making payment of Rs. 1500 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 shown to 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. It deserve to be noted at this stage that, in fact this complainant had collected two samples, namely sample bearing no. 1/91 and sample bearing no. 2/91 from this very accused and in respect of both the samples separate criminal complaints came to be filed being Criminal Case No. 891 of 1991 which was in respect of sample bearing no. 1/91 and Criminal Case No. 1009 of 1995 which was in respect of sample No. 2/91. The trial court in separate judgments dated 26/5/1995 acquitted the accused in both the cases and therefore two appeals came to be filed. The appeal being Criminal appeal No. 765 of 1996 contained challenge to the judgment and order of acquittal passed by the trial court in respect of sample bearing no. 2/91. This Court has dismissed the same on account of prosecution's failure in proving its case beyond doubt (Coram: S. R. Brahmbhatt, J) vide judgment and order dated 6/9/2005. The present appeal being Criminal Appeal No. 785 of 1996 had not been listed at that time, and therefore, it remained pending which is being disposed of by the present judgment.

(3.) FEW facts in respect of sample no. 2/91 forming part of criminal case No. 1009/95 deserve to be put up so as to have clear picture of the obtaining circumstances. That, 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. Instead 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 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 form the record that vide letter dated 4/6/1991 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 copy of the letter of Public Analyst to Local Health Authority, Rajkot. The Public analyst once again sent request letter on 15th June, 1991 to the Local health Authority, Rajkot, requesting for the sample of the sample No. 2/91. 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 standards 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 12/8/1991. The complaint came to be lodged on 20/8/1991 in the court of learned JMFC, Jamkhambhaliya. After lodging complaint, the local Health Authority issued notice on 23/8/1991 under Section 13 (2) of the Act. As it 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 the matter had proceeded further. The trial Court has framed two points for determination, namely (1) 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 point is answered in negative and the second point is answered as per order. After discussing the evidence on record, the learned trial court came to the conclusion that the accused deserve to be acquitted and accordingly he was acquitted vide order dated 26/5/1995. The said impugned order was under challenge in the acquittal appeal.