- (1.) THE present acquittal appeal has been filed by the appellant -State of Gujarat under Section 378 of the Criminal Procedure Code against the judgment and order dated 09.03.1988 rendered in Criminal Case No.710 of 1986 by the learned Judicial Magistrate, First Class, Court No.3, Narol, whereby the accused has been acquitted of the charges of offence under sections 7 (1) & 7(5) and 16 (1) (a) of the Prevention of Food Adulteration Act levelled against the respondent accused.
(2.) THE brief facts of the prosecution case are as under: 2.1 It is the case of the prosecution that respondent No.2 on 8.1.1986 took a sample of turmeric powder from the shop of accused, who was dealing with provisional goods and according to the rules framed of the Prevention of Food Adulteration Act. Panchnama was prepared and sample was taken and one sample was sent to the public analyst at Baroda for analysis and the report of the public analyst was that the article of food which was in sample was found to be adulterated and therefore, a complaint was filed against the accused by the respondent No.2. The State of Gujarat is desirous of preferring an appeal against the order of acquittal passed by the learned Judicial Magistrate, First Class, IIIrd Court, Narol. 2.2 After following due procedure under the law and after giving intimation to the accused, in presence of the panch witness the sample was collected. Thereafter, the sample was sent to the laboratory for analysis. The report of the public analyst reveals that the article of food is adulterated. Necessary formalities were completed and after obtaining permission/sanction, complaint was registered against the accused. 2.3 The charge was framed against the accused person, wherein the accused pleaded not guilty. Therefore, the prosecution led oral as well as documentary evidence against the accused. Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 were recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.4 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, acquitted the respondent -accused. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 9.03.1988 rendered in Criminal Case No.710 of 1986 by the learned Judicial Magistrate, First Class, Court No.III, Narol, the appellant State has preferred the present appeal before this Court and led oral as well as documentary evidence.
(3.) HEARD learned APP, Ms.Bhatt appearing for the appellant. Though number of years has elapsed, the accused is not served. Be that as it may, the appeal is taken up for final hearing today. Ms.Monali Bhatt, learned APP submitted that judgment and order of the learned Judicial Magistrate, First Class is not proper, legal and it is erroneous. She has also submitted that the learned Magistrate has erred in law in coming to the conclusion that the complainant has failed to prove that the accused was responsible for selling this adulterated articles. She has further submitted that the learned Magistrate ought to have considered Section 16(1) which makes a clear that any person, who sells adulterated food, liable for the punishment and it is not necessary that he must be the owner of the shop. She has further submitted that learned Magistrate has erred in not considering the fact that the turmeric power was found to be adulterated and the public analyst has also given his report accordingly. She has further submitted that learned Magistrate has erred in law in coming to the conclusion that while taking the sample of food in the presence of panchas the proper procedure has not been followed and the seal of the bottles were not in packed condition. She has further submitted that learned Magistrate has erred in law in coming to the conclusion that the samples of the bottles were not sent to the public analyst. She has further submitted that the learned Magistrate has erred in law in coming to the conclusion that the sample which was taken was according to the quality prescribed under the Rules and therefore it was not adulterated article. She has further submitted that learned Magistrate has not considered the report of the public analyst in this behalf, who has clearly stated that the sample sent to him was found to be adulterated and of lower quality as prescribed under the Rules. She has further submitted that the order of acquittal is even otherwise erroneous, improper and illegal. She has also argued that the learned Magistrate has not considered the evidence of the witnesses. She has argued that Food Inspector has followed the rules prescribed by law and he has also followed the procedure of taking the sample. The food article was seized and sealed properly. She has argued that the learned Magistrate has erred in acquitting the respondent accused on the ground that there is violation of Rule 44(h) of the Prevention of Food Adulteration Rules. She has argued that the learned Magistrate has not properly appreciated deposition of the complainant which clearly shows that the sample has been collected in a neat and clear jar. It is submitted that the learned Magistrate has committed an error in holding that there is violation of Rule 44 (h) of the Rules. It is submitted that the deposition of the complainant clearly shows that vessel / jar was being made neat and clean before the sample has been collected. It is submitted that the learned Magistrate has committed in error in law and facts in not appreciating that the Central Forensic Laboratory clearly shows that the seal of the sample container and outer cover if compared and it was found intact and unbroken. Therefore, the order impugned in this appeal passed by the learned Magistrate requires to be quashed and set aside.;