STATE OF GUJARAT Vs. IMTIYAJ HAJI ABDUL SATTAR

JUDGEMENT

(1.) The judgment and order of acquittal passed by the learned Judicial Magistrate, First Class, at Dhrol on 15th November, 1990 in Criminal Case No. 356 of 1984 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 respondent-accused of the offence punishable under S.16 read with S.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. One Hariom Surendranath Pandya was working as the Food Inspector at Jamnagar at the relevant time and he was authorised to act for the purposes of the Act within the District of Jamnagar. He visited one shop in the name of Bombay Ice Candy in Jodiya on 27th June, 1984 around 2-00 p.m. in the company of one panch witness. The shop was owned by the respondent-accused and he was in the charge of the shop at the relevant time. Ice Candies were produced therein. The Food Inspector purchased in all 40 Ice Candies from the respondent-accused for the purposes of the Act. The entire quantity so purchased was divided by him into three pArt.To each part was added Formalin of the required strength to the tune of fifty-five (55) drops each. Each part was packed and sealed in a bottle container. One sample container was sent to the Public Analyst at Bhuj by registered post parcel. The memorandum with the specimen seal used for sealing the sample container was separately sent by registered post to the Public Analyst at Bhuj. The remaining two sample containers were forwarded to the Public Health Authority at Rajkot. The report of analysis of the sample received from the Public Analyst showed the sample to be adulterated. Thereupon, after obtaining the requisite consent from the Public Health Authority, the Food Inspector filed his complaint in the Court of the Judicial Magistrate, First Class, at Jodiya on 28th September, 1984. It came to be registered as Criminal Case No. 356 of 1984. The intimation regarding launching of the prosecution, together with a copy of the report of the Public Analyst, was sent to the respondent-accused by a communication of 29th September, 1984. It appears that the respondent-accused took no steps for getting examined by the Central Food Laboratory one of the sample containers lying with the local health authority. The charge against the respondent-accused was framed on 29th August, 1987. He did not plead guilty to the charge. He was thereupon tried. After recording the prosecution evidence and after recording the further statement of the respondent-accused under S.313 of the Code and after hearing arguments, by his judgment and order passed on 15th November, 1990 in Criminal Case No. 356 of 1984, the learned Judicial Magistrate, First Class of Dhrol, Jodiya, acquitted the respondent-accused of the charge levelled against him. That aggrieved the prosecution agency. The State Government has, therefore, preferred this appeal after obtaining leave of this Court under S.378 of the Code for questioning the correctness of the aforesaid judgment and order passed by the learned trial Magistrate.

(3.) Learned Additional Public Prosecutor Shri Divetia for the appellant-State has taken me through the entire evidence on record and has submitted that the learned trial Magistrate was in error in acquitting the respondent-accused on a highly technical ground. It has been urged by learned Additional Public Prosecutor Shri Divetia for the appellant that, after finding the merits of the case in favour of the prosecution, the learned trial Magistrate ought to have realised that there was ample material on record showing full compliance with Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955 (the Rules for convenience) framed under the Act. As against this, learned Advocate Shri Trivedi for the respondent-accused has submitted that the learned trial Magistrate was, on the basis of the material on record, quite justified in coming to the conclusion that Rules 17 and 18 of the Rules were not complied with and the respondent-accused deserved to be acquitted on that count as the said Rules were mandatory in nature. It has been urged by learned Advocate Shri Trivedi for the respondent-accused that the view taken by the learned trial Magistrate is a possible view and, according to well-settled principles governing acquittal appeals, the impugned judgment and order of acquittal passed by the learned trial Magistrate calls for no interference by this Court in this appeal.