ARVIND KUMAR MANIALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HEARD Mr. S. R. Divetia, learned Counsel appearing for the applicant-accused and Ms. D. S. Pandit, learned A. P. P. appearing for the opponent-State. None has appeared for the complainant-opponent No. 2.

(2.) BY means of filing the present Criminal Revision Application, the applicant (original accused) (hereafter to be referred to as "the accused") has assailed the legality and validity of the order of conviction and sentence passed by the learned metropolitan Magistrate (Court No. 8), City of Ahmedabad in Criminal Case no. 32 of 1989, whereunder, the accused has been convicted for offence punishable under Sec. 7 read with Sec. 16 (l) (a) of the Prevention of Food adulteration Act, 1954 (hereafter to be referred to as the "p. F. A. Act" ). Learned trial Judge has imposed fine of Rs. 1,000/- upon the accused and in default of payment of fine, the accused is sentenced to further imprisonment of 15 days. The order of conviction and sentence was challenged by way of an appeal by the accused before the City Sessions Court at Ahmedabad and the order of conviction and sentence passed by the learned trial Judge was confirmed by the learned Additional Sessions Judge (Court No. 14), City of Ahmedabad by judgment and order dated 16th March, 1999 while dismissing the Criminal Appeal no. 16 of 1995 filed by the accused.

(3.) MR. Divetia has taken me through the findings recorded by both the courts below as well as relevant part of evidence recorded during the course of the trial. Submission of Mr. Divetia is two-fold. First submission is that the order of conviction recorded by the learned trial Judge as confirmed by the learned Additional City Sessions Judge under challenge are erroneous and the accused deserves acquittal on the ground that guilt ought not to have been recorded on the strength of the report of the Central Food Laboratory when the same is based on finding recorded by microscopic examination of chilli powder sent as sample for analysis. Further points are also argued by Mr. Divetia. But he has mainly concentrated on this aspect and has submitted that examination of sample of chilli powder only by use of microscope is not valid and scientific test; that the Rules framed under the P. F. A. Act also do not provide for such examination and the finding recorded on the strength of microscopic examination of sample of chilli powder ought not to have been accepted as sufficient evidence against the accused and the accused could have been given benefit of doubt. It is also contended by Mr. Divetia that there is breach of mandatory Rules 14 and 16 of Prevention of Food Adulteration Rules. But it is not a matter of dispute that sample was drawn by the complainant from the accused and the same was initially sent for analysis to the Public Analyst in accordance with law and the Rules framed under the P. F. A. Act. On receipt of finding from the Public Analyst, the accused exercised his privilege and had prayed that sample be sent to the Central Food Laboratory for analysis and both the Courts below obviously were supposed to consider the report of Central Food Laboratory. There was no scope for any of the Court even to read the first report of the public Analyst. Report of C. F. L. Exh. 4 shows that : "sample does not conform to the standard of chilli powder laid down in Item A. 05. 05. 01 of P. P. A. Rules, 1955 in that sample shows admixture with wheat starch. Test for starch is also positive. Sample is, thus, adulterated. " This finding is based on other findings recorded by the Analyst of C. F. L. Gaziabad. For the purpose of present judgment, the finding recorded in Column Nos. 6 and 12 are relevant. In Column no. 6, it is recorded that : "test for presence of starch (Iodine reaction); positive. " In Col. No. 12, it is mentioned that : "microscopic examination : sample showed presence of foreign starch identified as wheat starch. " Both the courts below were supposed to test the evidentiary value of this document Exh. 4 and have recorded concurrent findings in this regard.