STATE OF GUJARAT Vs. GANESHBHAI CHAMNAJI RAVAL

JUDGEMENT

(1.) The judgment and order of acquittal passed by the learned Judicial Magistrate, First Class, at Radhanpur on 14th March, 1989 in Criminal Case No. 265 of 1988 is under challenge in this appeal by leave of this Court under Sec. 378 of the Code of Criminal Procedure, 1973 (the Code for brief). Thereby, the learned trial Magistrate acquitted the respondents herein of the offence punishable under Sec. 16 read with Sec. 7 of the Prevention of Food Adulteration Act, 1954 (the Act for brief).

(2.) The facts giving rise to this appeal move in a narrow compass. The Food Inspector of the District of Banaskantha went to one Sarvottam Restaurant at Radhanput at about 12-00 noon on 18th January, 1988. Respondent-accused No. 1 was in charge of the restaurant, presumably as servant, and respondent-accused No. 2 was its owner. The Food Inspector, in presence of two panch witnesses, purchased from respondent-accused No. 1 a sample of curd to the tune of 600 gms. The former divided the sample into three parts and in each part he added Formalin of the required strength to the tune of 16 drops each. Each part of the sample was separately packed and sealed in a container. One container was sent to the Public Analyst at Baroda for analysis and report. The other two containers were sent to the local health authority, for safe custody. The report of the Public Analyst showed the sample to be adulterated. Thereupon, after obtaining the consent of the local health authority as required under Sec. 20 of the Act, the Food Inspector filed his complaint in the Court of the Judicial Magistrate, First Class, at Radhanpur on 5th April, 1988, charging the respondents-accused with the offence punishable under Sec. 16 read with Sec. 7 thereof. It came to be registered as Criminal Case No. 265 of 1988. Thereafter, the local health authority sent to the respondents-accused the intimation regarding launching of the prosecution, together with the report of the Public Analyst, by his letter of 21st of April, 1988. That was received by the respondentsaccused on 28th April, 1988. They thereafter applied to the Court on 5th May, 1988 for sending one sample to the Central Food Laboratory for its analysis and report in exercise of their right under Sec. 13(2) of the Act. It appears that one container of sample was sent by the Court to the Central Food Laboratory at Gaziabad on or about 27th May, 1988. The Central Food Laboratory at Gaziabad gave its report on 30th June, 1988 with its opinion that the sample was found adulterated. Thereafter, the charge against the respondents-accused was framed on 6th September, 1988. Neither respondent-accused pleaded guilty to the charge. They were thereupon tried. After recording the prosecution evidence and after recording the further statement of each respondent-accused under Sec. 313 of the Code and after hearing arguments, by his judgment and order passed on 14th March, 1988 in Criminal Case No. 265 of 1988, the learned Judicial Magistrate, First Class, at Radhanpur, acquitted the respondents-accused of the charge levelled against them. That aggrieved the prosecution. The State of Gujarat has thereupon preferred this appeal after obtaining leave of this Court under Sec. 378 of the Code for questioning the correctness of the aforesaid judgment and order of acquittal passed by the learned trial Magistrate.

(3.) Learned Additional Public Prosecutor Shri Divetia for the appellant has taken me through the entire evidence on record in support of his submission that the learned trial Magistrate was in error in acquitting the respondents-accused of the offence with which they were charged merely on a technical ground. According to learned Additional Public Prosecutor Shri Divetia for the appellant, the learned trial Magistrate ought to have convicted and sentenced the respondents-accused as their guilt was proved by the prosecution beyond any reasonable doubt. As against this, learned Advocate Shri R. N. Shah for respondent-accused No. 2 has submitted that there was inordinate delay on the part of the complainant in launching the prosecution and again inordinate delay on the part of the local health authority in giving intimation of launching the prosecution together with the report of the Public Analyst which caused great prejudice to the respondents-accused in as much as they could exercise their right of getting the sample analysed by the Central Food Laboratory when the sample of curd might not have remained fit for analysis. Relying on the binding ruling of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram, reported in AIR 1967 SC 970, learned Advocate Shri Shah for respondentaccused No. 2 has submitted that the sample of curd would remain fit for analysis after adding preservative only for four months if kept in a room temperature and only for six months if kept in a refrigerator. In the instant case, runs the submission of learned Advocate Shri Shah for respondent-accused No. 2, no evidence is led as to whether or not the sample was kept in a refrigerator by or on behalf of the local health authority after the two containers of sample were entrusted to him by the Food Inspector. In that view of the matter, according to learned Advocate Shri Shah for respondent-accused No. 2, the sample might not have remained fit for analysis and, in absence of examination by the Analyst of the Central Food Laboratory at Gaziabad, it ought to be presumped that the sample was not fit for analysis. Relying on this factual position, it has been urged by learned Advocate Shri Shah for respondent-accused No. 2 that the respondents-accused have rightly been acquitted by the learned trial Magistrate.