STATE OF GUJARAT Vs. BARKAT ALI PYARALI KHOJA

JUDGEMENT

(1.) HEARD Mr. A. Y. Kogje, ld. APP, appearing on behalf of the appellant-State.

(2.) THIS is an appeal against the order of acquittal dated 11th September, 2002 recorded by the ld. Judicial Magistrate First Class, Dhandhuka. The original accused nos. 1 to 3 are partners of a business firm, from where the sample of food article i. e. edible groundnut oil, was drawn by the complainant-Food Inspector and the original accused no. 4 is the manufacturer i. e. Madhuram Industries, Mangrole. Undisputedly from a packed tin of groundnut oil where 15 k. g. of groundnut oil was packed, the complainant drew the sample in accordance with rules and the same was sent for analysis to Public analyst. As per the report of the Public Analyst, the groundnut oil was not in accordance with the standards prescribed under the Prevention of Food adulteration Act, 1954 (hereafter referred to as 'the Act') and, therefore, it was declared adulterated within the meaning of the said Act. The ld. trial judge after appreciating the stand taken by the accused persons including the manufacturer, acquitted th accused holding that the prosecution has failed to establish the charge beyond reasonable doubt. Of course, the learned Judge has specifically held that no infirmity is found in drawing land packing the sample sent to the Public Analyst but it was not possible for the Court to ignore one fact that the same was drawn from a branded packed tin manufactured by the respondent-orig. accused.

(3.) HAVING considered the order under challenge, this Court is not in agreement with the finding recorded by the Id. Judicial Magistrate First class, whereby it is also held that the authority who accorded sanction to prosecute the respondents-accused persons was not authorized to accord sanction. So the point of validity of sanction was very well raised by the learned counsel appearing for the respondents and this point is argued at length before the ld. trial Judge while dealing with the argument advanced on behalf of the accused. The learned Judge has referred to the relevant order dated 10th November, 1987 (paragraph no. 21 of the judgment) and the contents of the order (Government Resolution referred to by the learned judge) are considered in the background of the deposition of Mr. J. D. Naykar. It emerges that the Additional Commissioner was promoted to the post of Deputy Commissioner i. e. higher position and, therefore, actual post of Deputy Commissioner was lying vacant and Mr. Naykar was asked to remain In-charge till the regular appointment is made. At that time, Mr. Naykar was Senior Drug Inspector. The learned Judge after referring to certain decisions has held that Mr. Naykar was not Additional Commissioner at the relevant point of time and, therefore, the sanction accorded by him cannot be said to be a valid sanction within the meaning of Section 20 of the Act. It would be beneficial to refer to the observations made by this court in the decision in Criminal Appeal No. 299 of 1996 in the case of state of Gujarat v. Keshaji Dadaji Thakor. The learned Judge has reproduced relevant observations in his judgment (at running page no. 29 ). For the sake of brevity and convenience, I would like to reproduce the relevant part of the said decision, which is as under : it is well settled that where a statutory duty is to be performed by a duly appointed designated officer of a certain rank and not by his subordinate, even if subordinate is temporarily performing the duties of the office of the superior, section 19 of the Bombay general Clauses Act, 1904, could not and does not, have the effect of making and appointing or substituting the subordinate in place of the superior irrespective of the language of the statute in question. The statute has imposed a certain duty on an officer of certain status and experience with a due sense of responsibility and circumspection and he has to apply his mind for granting the necessary sanction to file the complaint against the accused person. In the case before me only the medical officer (Health), was duly authorised by the Municipal Corporation to grant necessary sanction, whereas the record reveals that the Deputy medical Officer Shri Vyas had accorded the sanction to prosecute the respondent-accused. In view of what has been stated above, the sanction to prosecute the respondent-accused was not in accordance with law, and hence, the appeal fails and is dismissed,