ASHWINBHAI H ACHARYA Vs. JAYESHBHAI MADHUBHAI CHEVADAWALA

JUDGEMENT

(1.) THE appellant - Food Inspector of rajkot Municipal Corporation has challenged the judgment and order dated 18. 11. 2008 of learned JMFC, Rajkot in Food Criminal Case no. 179 of 1999, whereby the respondent was acquitted of the charge of offences punishable under Sections 7 and 16 of the Prevention of Food Adulteration Act. I954 (forshort "the act"), only on the ground that the consent or sanction granted for initiating the prosecution was without application of mind. The only thing against the consent under section 20 of the Act was that incorrect rule was mentioned in the order and that issue was admittedly directly covered by judgment of this Court in State of Gujarat v. Imtiyaz Haji abdul Sattar (1997 Criminal Law Journal 42421. wherein it is categorically held that the consent order under Section 20 of the Act need not record any reason for granting consent for prosecution. The consent envisaged in the provisions of Section 20 of the Act as condition precedent to prosecution is a written consent for instituting the prosecution under the Act and not a consent for prosecuting the accused for a specific offence. However, in the facts of the present case, the order granting consent (Ex. 50)clearly mentioned Sections 2 (ix) (k) and Rule 32 (e) in the last column of the form indicating the alleged offence and also recorded discussion with the complainant to indicate proper application of mind. Apart from that, it may be erroneous to elevate the status of consent to that of sanction and defeat the prosecution in view of the spirit and purpose of the Act as also the spirit and purpose of the provisions of Section 465 of Cr. P. C, by finding out one or the other error or omission in the letter of consent. Reference in that regard may be had to State of Gujarat v. Chandraprakash K. Sindhi [1999 F. A. J 383]. Any lapse, error or omission in mentioning the Section or Rule for the violation of which prosecution was authorized could not be a ground for acquitting the accused person. Therefore, the impugned judgment is illegal and erroneous to that extent.

(2.) HOWEVER, the appeal could not be allowed and conviction could not be recorded in view of other factual aspects, which were not duly dealt with by the trial Court, and which were argued by learned Counsel. Mr. Bhatt before this Court. Perusing the record and Proceedings of the case, it was seen that, according to the Food Inspector himself and the analysis report, it was not a case of adulteration of the food article but it was a case of misbranding and violation of rule 32 (e) and (f ). The samples of the food article, i. e. potato wafers were taken from the place where the food article was being produced and, according to Food Inspector himself (exh. 33), the premises did not bear any signs or a sign-board indicating that the wafers were packed or sold at that premises. Instead it appeared to be a residential house in which frying was done on big stoves and where workers were working, from where the samples were taken. The panch, who was brought by the Food Inspector specifically for the purpose of witnessing the process of taking samples and sealing it for the purpose of analysis, turned hostile and did not support the prosecution case before the Court. In such circumstances, the defence of the respondent that the samples taken by the Food Inspector were yet to be properly packed and made ready for selling was plausible and the version of the prosecution did not inspire sufficient confidence to convict the respondent on the basis of inconsistent and insufficient evidence.

(3.) THEREFORE, while allowing the appeal to the extent that the impugned judgment was based upon untenable ground of violation of Section 20 of the Act, the acquittal is recorded and confirmed on the factual basis as aforesaid. The appeal is disposed accordingly. (Appeal is disposed accordingly)