STATE OF GUJARAT Vs. ANIL CHAMPAK LAL

JUDGEMENT

(1.) - The learned counsels have been permitted to advance their submissions at length on the merits of the matter while examining the same for granting leave to appeal. Learned APP Shri patel has produced on record the relevant papers pertaining to Criminal Case No. 1489 of 1992. The same are ordered to be taken on record.

(2.) BRIEF facts leading to filing this appeal and leave to appeal are set out as under: the concerned Food Inspector/original complainant on 25. 9. 1990 at about 12. 15 hrs visited the business premises of the accused run in the name and style of Shri Nathji Stores in Petlad. The food Inspector in presence of panch witness purchased 600 grams Bengal gram Flour i. e. Besan in common parlance on payment of Rs. 7. 20. After notifying his intention to have the sample tested by the Public Analyst, issued notice under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the rules' for brevity) in Form No. VI. The sample food was divided into three equal parts and collected in odourless clean glass bottles and the bottles were sealed in accordance with law. In presence of panch the panchnama was drawn. On the next day i. e. 26. 9. 1990 one part of the food sample was sent to Public Analyst at Vadodara for the purpose of analysis in accordance with law. The specimen impression of seal and memorandum of seal was also sent separately. The remaining two parts of the sample was sent to Local Health authority as required under the law. The Public Analyst opined the sample to be adulterated on account of presence of 'maize starch' and therefore the requisite papers were prepared for obtaining sanction for lodging prosecution for commission of offence under section 7 and 16 of the Prevention of food Adulteration Act, 1954. (hereinafter referred to as the 'act' for brevity ). The sanction was accorded against both the accused and accordingly the complaint came to be lodged in the court of learned JMFC, Petlad, which came to be registered as Criminal Case no. 1489 of 1992. The accused denied the charge and claimed to be tried. The trial Court recorded the evidence and also further statements of the accused, who denied the case of the prosecution. The trial Court came to the conclusion that the prosecution failed in establishing its case against the accused and therefore acquitted the accused of the charge of commission of offence punishable under Section 7 and 16 of the act vide its order dated 15. 10. 2004, which is impugned in the present leave to appeal and the appeal.

(3.) SHRI Patel, learned APP has submitted that the trial Court acquitted the accused mainly on the ground that the prosecution did not establish due compliance with mandatory provision of Rule 14. This being a finding unsustainable in view of the evidence on record, the order of the trial court is perverse and therefore the same deserves to be quashed and set aside. Shri patel has invited this Court's attention to the testimony of the Food Inspector wherein he has stated that as the bottles appeared to be very clean and neat therefore they were not cleaned at the spot while collecting the sample. This being an evidence on record, the trial court ought not to have held that there was non-compliance with mandatory provision of Rule 14 of the Prevention of Food Adulteration Rules 1955. Shri patel has submitted that as the commission of offence is established the appropriate punishment deserves to be inflicted upon the accused. Shri Patel has further submitted that the error in coming to the conclusion that there was possibility of tampering with the sample as there is difference between the opinion of the Public Analyst which has said that the sample food article was adulterated on account of presence of maize starch, whereas the Director of Central food Laboratory (CFL) in his opinion / report stated that the sample was adulterated on account of presence of Khesari. If the sample was not tampered with then there cannot be this kind of difference in the opinion by two authorities. Shri Patel has submitted that this reasoning of the trial Court is unwarranted and contrary to the established position of law and therefore the same deserved to be reversed. Shri patel has submitted that once the report of the Director of CFL was available on record, unequivocally declaring the sample food article to be adulterated, then, it was not open to the trial Court to take into consideration the report of the Public Analyst for inferring any kind of tampering with the seal of the sample food article pack. Shri patel has submitted that in absence of any evidence leading to a reasonable presumption about tampering with the seal of food article, the trial Court's reasoning is perverse and therefore the same deserves to be quashed and set aside.