JAYANTILAL LAXMANBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE Revisionist herein challenges the judgment and order rendered by Sessions Court, Surendranagar, on 6th March, 2003, in Criminal Appeal No. 14 of 1987. The said appeal arose out of a judgment and order rendered by learned Judicial Magistrate, First Class, Surendranagar, on 31st August, 1989 in Criminal Case No. 1304 of 1985.

(2.) THE Revisionist was running a Parotha House and the Food Inspector of Surendranagar Nagarpalika visited the said Parotha House on 16. 10. 1984 around 11. 15 A. M. and suspected that the curd served to the customers at the Parotha House was not upto the standards required under the Prevention of Food Adulteration Act, 1954 (Act" for short ). He, therefore, purchased 600 grams of curd by paying Rs. 4. 50 ps. , divided the same into three equal parts and put each part in three cleaned glass bottles and added 16 drops of formalin to the contents of each of the bottles. Then he shook the bottles and sealed them as per the procedure prescribed under the law. The sample was sent to Public Analyst who, in turn, found that the sample did not conform to the required standards under the Act. Subsequently, after following the necessary procedure, a complaint was lodged in the Court of Judicial Magistrate, First Class, Surendranagar. The Trial Court found that the evidence was clinching and, ultimately, recorded conviction of the Revisionist under Section 16 (1) (a) (i) of the Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 1000/-, in default, to undergo further simple imprisonment for one month by judgment and order dated 31st August, 1987 in Criminal Case No. 1304 of 1985. 2. 1 The said judgment and order was challenged before Sessions Court, Surendranagar, by preferring Criminal Appeal No. 14 of 1987. A point was raised before the Appellate Court that the sample, which was collected, cannot be said to be homogeneous representative sample of the stock, as it was not churned before drawing the sample. The Appellate Court did not accept the said contention on the ground that the said point was not raised before the Trial Court. Ultimately, the Appellate Court dismissed the appeal confirming the judgment and order of the Trial Court by judgment and order dated 6. 3. 1993. This has given rise to the present Revision Application.

(3.) LEARNED Advocate, Ms. Sheth, for the appellant submitted that the Appellate Court committed an error in not accepting the contention as it would go to the root of the case. She submitted that in the light of the decisions rendered by this Court in Vallabhbhai Popatbhai v. State of Gujarat, 2005 (2) GLR 1518 and Mansinh Chhajuram Yadav and Another v. State of Gujarat, 1985 GLH 782 as also in the light of decision rendered by the Apex Court in Food Inspector, Municipal Corporation, Baroda v. Madanlal Ramlal Sharma and Another, 1983 GLH 333, churning of curd is essential to ensure that the sample is homogeneous because milk and milk preparations like curd will have a tendency of settling fat on the top. She, therefore, submitted that this revision application may be allowed and the Revisionist may be acquitted by setting aside the judgments and orders of both the Courts below.