DALPATSINH GUMANSINH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE applicant, by way of this application has prayed to quash and set aside the order dated 06. 10. 1997 passed by the learned Additional City Sessions Judge, Ahmedabad in Criminal Appeal No. 19 of 1997, whereby the said appeal was dismissed and the order dated 28. 01. 1997 passed in Criminal Case No. 33 of 1989, by the learned Metropolitan Magistrate was confirmed.

(2.) THE short facts of the case are that on 24. 05. 1988, at around 1000 hours, an inspection was carried out at the shop of the applicant by the Food Inspector of the respondent-State. After following necessary procedure, the said authority purchased cow milk from the applicant. Thereafter, the said milk was sent to the Public Analyst for examination. On examination, the milk so purchased was found to be adulterated. 2. 1. Therefore a complaint with respect to the aforesaid offence was filed against the applicant under the provisions of the Prevention of Food Adulteration Act, 1954 before the Court of Metropolitan Magistrate, Ahmedabad, which was registered as Criminal Case No. 33 of 1989. The learned Magistrate, after hearing the parties and after considering the evidence on record, held the applicant guilty for the offence punishable under Section 7 of the Act and vide order dated 28. 01. 1997, imposed penalty of R. I. for one year and fine of Rs. 2,000/- and in default of payment of fine, S. I. for a further period of three months. 2. 2. Being aggrieved and dissatisfied with the aforesaid order, the applicant preferred an appeal being Criminal Appeal No. 19 of 1997 before the Court of learned Additional Sessions Judge, Ahmedabad. The learned Sessions Judge after hearing the parties and after considering the evidence on record, vide order dated 06. 10. 1997 dismissed the said appeal. Hence, this application.

(3.) THE learned counsel for the applicant has contended that the sample was drawn on 24. 05. 1988 and the Public Analyst has given the report on 27. 06. 1988. The complaint was filed in the Court on 17. 07. 1989. She has further contended that thereafter another sample was sent to the Central Food Laboratory on 28. 07. 1989, which was analyzed on 30. 08. 1989. She has, therefore contended that sample analyzed after 15 months from the drawl, may result in deficiency in quality of the sample. In support of her contention, she has placed reliance upon the decision of this Court in the case of State of Gujarat v. Ganeshbhai Chamnaji Raval reported in 1997 (2) GLR pg. 1391 [1997 (2) GCD pg. 430], wherein, the Court has held as under : "7. As rightly submitted by learned Additional Public Prosecutor Shri Divetia for the appellant-State, the Central Food Laboratory in its certificate at Exhibit 31 has clearly indicated that the sample was in a condition fit for analysis. It transpires therefrom that the sample was received by the Central Food Laboratory on 9th June, 1988. It was taken by the Food Inspector on 18th January, 1988. It thus becomes clear that it was received in the Central Food Laboratory more than four months after its purchase by the Food Inspector from respondent-accused No. 1 from the restaurant belonging to respondent-accused No. 2. In view of the aforesaid binding ruling of the Supreme Court in the case of Ghisa Ram (supra), that sample would not have remained fit for analysis. If in the report at Exhibit 31, the sample was found to be in a condition fit for analysis, it was an extraordinary circumstance, and as such it was necessary for the prosecution to have examined the analyst from the Central Food Laboratory to prove that it remained in a condition fit for analysis even after expiry of four months from the date of its purchase by the Food Inspector on 18th January, 1988. No analyst from the Central Food Laboratory at Gaziabad has been examined in this case to prove that the sample received by it was in a condition fit for analysis though more than four months had elapsed from the date of its collection on 18th January, 1988. In that view of the matter, an inference will have to be drawn to the effect that the sample received in the Central Food Laboratory on 9th June, 1988 was not in a condition fit for analysis in view of the aforesaid binding ruling of the Supreme Court in the case of Ghisa Ram (supra ). "