Gujarat High Court Case Information System Print CR.MA/1915/2010 3/ 6 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 1915 of 2010 In CRIMINAL APPEAL No. 340 of 2010 ========================================================= STATE OF GUJARAT & 1 - Applicant(s) Versus V C THOMAS - Respondent(s) ========================================================= Appearance : MR. M.G. NANAVATY, ADDL PUBLIC PROSECUTOR for Applicant(s) : 1 - 2. None for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/03/2010 ORAL ORDER
(1) This application for seeking leave to appeal is taken out by the State under Section 378(4) of the Code of Criminal Procedure, 1973 for seeking leave to challenge the order of acquittal dated 15th September,2009 passed by the Judicial Magistrate First Class, Ahmedabad (Rural) in Criminal Case No.2692 of 1999 whereunder respondent-original accused was acquitted of the charge of committing offence under Section 16 of the Prevention of Food Adulteration Act,1954 (hereinafter referred to as PAF Act for the sake of brevity).
(2) The Court has heard learned Additional Public Prosecutor for the applicant and perused the impugned order. The Court has also perused the testimony of the Food Inspector, certified copy whereof is also produced on record along with the other relevant material. The law in respect of collecting the sample and the issuance of notice to the accused under Section 13(2) of the PFA Act has now become crystallized. After perusal of the testimony of the Food Inspector, this Court is of the view that the order of acquittal does not deserve to be disturbed in any manner and, therefore, the leave itself is not required to be granted for the following reasons namely:-
(2.1) The concerned complainant Food Inspector on 5th July, 1999 visited the restaurant run by the accused where from the accused was selling edibles and preparing food described in the complaint. The Food Inspector found 6 to 8 k.g. of curd kept in a refrigerator. On inquiring with the vendor in respect of the curd, he replied that the curd is made of buffalo milk and it was being sold as plain curd as it was mentioned in the menu, which was kept in the restaurant. After notifying the intention to collect the sample food article for examination and after mixing the entire quantity of curd and making it homogeneous so as to represent the entire quantity, Food Inspector purchased 600 gms. of curd with the help of bowl and it was emptied in steel vessel. The price for the curd Rs.48/- was paid. The curd, which was thus taken into the steel vessel was, thereafter, divided into three parts and poured into the dried odourless glass bottles with the help of steel ladle. This entire procedure was carried out in presence of Panch witness. The requisite formalin was added into the bottles and the bottles were sealed in accordance with law. One part of the sample food article was sent to the public analyst for examination and remaining two parts were sent to the Local Health Authority. The food article was found to be adulterated and hence after obtaining sanction from the competent authority, the complaint came to be lodged on 4.10.1999. The Local Health Authority was informed about filing of the complaint. Local Health Authority in turn issued notice to the accused under Section 13(2) of the PFA Act . However, it was stated that the acknowledgement receipt indicating receipt of the notice by the accused was not received back by the office, which was informed to the Local Health Authority vide letter at Exh.46. In reply to this, the Local Health Authority informed that there was a correspondence with the Postal department in this behalf. However nothing came out on record and the trial began and ultimately the Court came to the conclusion that there was no positive evidence with regard to compliance with Rule 14 of the Prevention of Food Adulteration Rules and no proof with regard to service of the notice under Section 13(2) of the PFA Act upon the accused. As both these provisions are mandatory in nature, no evidence indicative of their compliance.
(3) The acquittal order dated 15.9.2009 is sought to be assailed in this leave to appeal application as well as appeal under Section 378 of the Code of Criminal Procedure. The testimony of the Food Inspector could not prove due service of notice issued by Local Health Authority to the accused under Section 13(2) of the PFA Act . The Food Inspector has also testified to the effect that it is true that the sample bottles, in which the sample article was collected had not cleaned on the spot. At this stage, it is required to be noted that apart from the aforesaid testimony of the Food Inspector, there was no evidence to establish due compliance of Rule 14 and Section 13(2) of the PFA Rules and Act. The Court has also recorded that no evidence with regard to cleaning of the vessel. It has also come on record that cleaning of all the vessels employed for collecting the sample ought to have been carried out by the concerned. In the instant case, the curd in question was collected with the help of bowl, no evidence had come forward with respect to cleaning the same. The ladle was used for collecting the sample, no evidence is coming forward with regard to cleaning of ladle and with regard to bottles as could be seen from the testimony of the Food Inspector, no positive evidence has come on record. The order of acquittal which is based upon such finding of the Court cannot be said to have been resulted into miscarriage of justice so as to call for any interference under Section 378 of the Code of Criminal Procedure. The leave therefore does not deserve to be granted and accordingly the application for seeking leave to appeal is rejected. When the application is rejected, the appeal itself would not survive and accordingly the appeal also stands dismissed.
(S.R.BRAHMBHATT,J.) Vahid Top