STATE OF GUJARAT Vs. SHANTILAL MANGILAL SHAH

JUDGEMENT

(1.) I have heard Mr. H.L. Jani, learned APP appearing for the appellant State. Learned counsel appearing for the respondents are absent. It appears that this appeal has been listed suddenly on account of some administrative exigency and therefore, learned counsel appearing for the respondents -original accused may not be even aware about listing of the appeal. On perusal of the papers, the Court found that it is possible for the Court to hear and decide the appeal with the assistance of learned APP for the appellant State and therefore, the Court has decided to hear this appeal. The parties are referred to in their original position as were before the trial court, i.e. Appellant as "complainant" and respondents as "accused".

(2.) THE present appeal is filed by the appellant State challenging the judgment and order of acquittal dated 10th May, 1999, passed by the learned Judicial Magistrate First Class, Shihori, whereby the respondents -accused came to be acquitted from the offences punishable under Sec.7[i] read with Sec. 16[1][a][i] of the Prevention of Food Adulteration Act, 1954 in Sessions Case No. 151 of 1995. According to the prosecution, complainant Food Inspector Shri A.G. Patel had drawn sample of edible groundnut oil from the shop of accused no.1. At that time, accused no.1 was present at the shop. There were three packed tins branded with sticker of brand; "Prabhat Double Filtered" groundnut oil of 15 kg each. On insistence of the complainant, one of the packed sealed tin was opened and sample was drawn from the said tin. According to the prosecution, these three packed sealed tins of groundnut oil were purchased by accused no.1 from accused no.2 having his wholesale business at Deesa. Accused no.2 was running his business in the name and style of "Prakash Traders". Complainant found that this groundnut oil was manufactured by M/s. Prabhat Industries having its business place near Power House, Town -Dhoraji, Taluka -Rajkot and accused no.3 was nominee of the manufacturer. Prosecution examined the complainant and other witnesses to prove the charge against the accused but after evaluating the evidence and relevant legal aspects pointed out to the trial court, the learned trial Judge came to a conclusion that all the three accused deserved acquittal. It is the said order of acquittal which has been challenged in the present appeal.

(3.) LEARNED trial Judge has recorded acquittal on three major grounds; accused nos. 1 and 2 have been acquitted by the trial court on the ground that as both of them were having purchase bill and at the time of drawing of sample, tin of 15 kg groundnut oil was sealed, under implied warranty, and therefore, the accused nos. 1 and 2 were benefit of doubt and it was held by the trial court they cannot be linked with sub -standard or alleged adulterated sample of the good article drawn in the process by the complainant; second ground was that report of the Central Food Laboratory [CFL] was not exhibited on account of material infirmity. There is no reference as to on which date the sample was analyzed and therefore, contents of the report could not be looked into. When the sample was sent for analysis to the CFL, report of Public Analyst, obviously was not required to be read as per the settled legal position and therefore, it was not either legal or proper for the court to convict the accused. Third ground of acquittal was that there was no evidence on record to show that while sending sample to the CFL, necessary procedure was followed by the Court sending the sample for analysis, more particularly as per the scheme of sub -rule [3] of Rule 4 of Prevention of Food Adulteration Rules, 1955. Sample was drawn in the year 1994. It must have been examined by CFL after the same was received by the CFL after 5th June, 1995 and any time prior to 19th July, 1995. True it is that there is no reference as to within how much period groundnut oil is required to be analyzed. Opinion of the CFL showed thus;