STATE OF GUJARAT Vs. HARESHBHAI T PARMAR

JUDGEMENT

(1.) AGAINST the judgment and order dated 31st May, 1985 passed by the Court of learned Chief judicial Magistrate, Bharuch in Criminal Case no. 14231 of 1984, whereby the learned magistrate convicted both the accused for the offences punishable under Section 7 (1)read with Section 16 (1) (A) (i) and sentenced the accused No. 1 simple imprisonment for six months and fine of Rs. 2. 000/- in default of payment of fine further simple imprisonment for three months and sentenced the accused No. 2 simple imprisonment till rising of the Court and fine of Rs. 1,000/- in default of payment of fine, simple imprisonment for one month; the accused preferred criminal Appeal, being Criminal Appeal no. 43 of 1985, before the District and Sessions court, Bharuch. The learned Sessions judge, vide judgment and order dated 6. 10. 1986, reversed the order of conviction and sentence and acquitted the accused of the offences charged against them. The learned Sessions Court found that mandatory procedure of sending specimen of sample as per the rules is not followed. The learned Additional Sessions Judge relied upon a decision reported in the matter of food Inspector, Mangalore Corporation v. A. G. Suvarna. It is observed in the said judgment that: "it therefore follows from the fact that the recitals in the report of the Public analyst in so far as they relate to the condition of the seals and comparison of these seals in the prescribed form are in excess of the rule-making power, and same being in print form cannot be regarded as record of the notes of observations made by the Public analyst or the officer authorized by him in this behalf. The recitals in his behalf are, therefore, neither by themselves substantive evidence, much less the evidence of the facts stated therein," (emphasis supplied)Relying upon the observations in the said judgment, the learned Additional Sessions judge was pleased to observe that provisions of Rule 7 (1) are mandatory and public Analyst has to follow the same meticulously. Perusing the report on record regarding seals being intact were in written format form and therefore, actual comparison of seals was done by Public Analyst, cannot be presumed. In the instant case, though mr. I. M. Desai was Public Analyst, he himself has not carried any analysis and the person who has undertaken the analysis, whether in fact has compared the seals or not is not borne out from the record. On this ground, the learned Additional Sessions judge was pleased to reverse the conviction of both the accused.

(2.) THE learned Public Prosecutor contended that insistence of actual recording recitals regarding comparison of seals and specimen is contrary to the spirit of Section 114 of the Evidence Act. He relied upon observations of Hon'ble Supreme Court in the matter of State of Himachal Pradesh v. Narendrakumar and another. In the said judgment, the Hon'ble Supreme Court observed in paras 6 and 7 that: para 6:

(3.) WE have gone through the judgment of the Hon'ble Supreme Court and considered the submissions made at the bar. The facts of the present case were in full agreement with the law laid down by the Apex court. Thus, observations of the learned sessions Judge while reversing the conviction were as such not justified in the light of above referred judgment. However, considering the facts of this case, the accused were running a small restaurant and samples were collected way back on 10. 10. 1984. They were convicted on 31. 5. 1985 and in the appeal, which they have preferred, they were acquitted by judgment of learned Sessions Judge on 6. 9. 1986. It is required to be noted that the learned sessions Judge acquitted the accused considering the law which was obtaining at that time.