STATE OF GUJARAT Vs. MAHENDRAKUMAR K MODY

JUDGEMENT

(1.) The present Appeal has been filed by the State, under Section 378 Cr. P.C., against the Judgment and order dated 31.8.1991, rendered in Criminal Case No.466 of 1986 by learned Judicial Magistrate, First Class, Dehgam. This Appeal arising out of the order of discharging the accused before framing of the charge passed by the learned JMFC, allowing the Application Exh.60 in Criminal Case No.466 of 1986, filed by the present respondent No.1 accused Mahendrakumar Khodidas Modi, for discharge on the ground that as per Notification dated 6.9.1985 Shri I.M.Desai was only Public Analyst and automatically the name of Shri P.M. Patel was cancelled and, therefore, he has no authority to sign on the Report, and under Section 13 the said report cannot be treated as an evidence.

(2.) In this matter, originally the criminal complaint was filed by Food Inspector Shri Manilal H. Patel in the Court of learned Judicial Magistrate, First Class, Dehgam, inter-alia stating that on 4.7.1985 at about 16.15 o'clock, he (the complainant), along with Panch witnesses Amrutlal Shah and Haji Gani Suleman, went to the shop of respondent (accused) Mahendrakumar Khodidas and took sample of Black Pepper ("Kala Mari") and sent the same to Public Analyst at Rajkot for analysis. In the Report of Public Analyst it was found that the Black Pepper was adulterated and thereby the respondent (accused) has committed offence under Sections 7 and 16(1)(A)(1) of the Prevention of Food Adulteration Act (for short "PFA Act"). Thereafter, Food Inspector obtained sanction from the Local Authority at Ahmedabad. Before the charge-sheet, at the time of cross examination of the complainant, the respondent filed an Application Ex.60 for discharging him on the ground that as per Notification dated 6.9.1985 Shri I.M.Desai was only Public Analyst and automatically the name of Shri P.M. Patel was cancelled and, therefore, he has no authority to sign on the Report, and under Section 13 of the PFA Act, the said report cannot be treated as an evidence. He has also relied upon the decisions of the Hon'ble Apex Court reported in AIR 1986 SC 2160 and also of this Court reported in 1991 GLR 82.

(3.) It is contended by learned APP Mr. Pandya that the Judgment and order passed by the trial Court is contrary to law and evidence on record; the trial Court has not given cogent and convincing reason for discharging the accused; the order of the trial Court is against the provision of law and learned Magistrate has erred in discharging the accused before framing the charge. There was prima facie case in Public Analyst's Report as Black Pepper, purchased by the Food Inspector, was found adulterated; Mr. P.M. Patel was authorized to give Report in the capacity as Public Analyst. However, these facts have not been considered by the trial Court. The trial Court has wrongly held that the sanction of Local Health Authority is illegal. Mr. Pandya has also contended that from the evidence of Food Inspector it is established that the sanction accorded by the Food Inspector is legal and as per the rules. Learned APP Mr. Pandya has fairly argued that when the prima facie case is made out against the accused then the accused cannot be discharged.