Bipinkumar Laxmanbhai Raval vs State of Gujarat

G.R. Udhwani, J.(Oral)—Rule. Learned APP, Ms. Moxa Thakker waives service for respondent Nos.1 and 2.

Considering the short issue involved in the case, the matter is heard finally today by consent of the parties.

Petitioner is aggrieved by the order dated 19.08.2015 passed by the learned 2nd Additional District Judge, Navsari Camp at Vansda vide Exh.1 in Criminal Appeal No.1 of 2010.

It appears that Criminal Case No.54 of 2005 has been instituted against the petitioner and another. The petitioner was convicted by the trial Court i.e. learned Judicial Magistrate, First Class Court, Vansda, Navsari in Criminal Case No.54 of 2005 on 18.01.2010 for the offences punishable under Sections 16(1)(a)(i), 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 for the breach of Sections 7(i), 7(ii), 7(iii) of the Prevention of Food Adulteration Act, 1954 and Rule 44(c), 50 of Prevention of Food Adulteration Rules, 1955. The learned trial Court has imposed sentence of rigorous imprisonment of 1 year with fine of Rs.2500/- upon the petitioner.

It also appears that the said judgment dated 18.01.2010 was challenged in Criminal Appeal No.01 of 2010 in the District Court, Navsari Camp at Vansda. In the said appeal, the impugned order has been passed by the appellant Court without hearing the appellant, with the following observations in Para-2:-

"2. This matter is 5 years old criminal matter. The appellant - accused have not remain present though notice has been issued against surety. Since 17.11.2012 the accused has declared at Exht.29 that he relieves all his advocates on record and thereafter not remained present. When the matter is taken up for final hearing, the learned A.P.P. Shri A.N.Mistri for the complainant remained present. There is no dispute that the accused is absconding since 2012."

Thus, it appears that the petitioner did not remain present and the argument made by the learned advocate for the petitioner is that matter had appeared suddenly on board after 14 months of its last adjournment.

As noticed in the above quoted para 2, the learned appellate Court observed that since the petitioner was not appearing after retiring his learned advocates since 17.11.2012, notice was issued to surety. However, it is not found by the appellate Court as to whether such notice on the surety was served or not. The petitioner has placed on record the affidavit of surety stating that he had not received any notice in connection with the appeal from the District and Sessions Judge, Navsari or its Registry etc. The surety also asserted that he has not filed any application for withdrawing him as surety in the said appeal.

It also appears from the para 4 of the impugned order that the appellate Court did not examine the matter on merits but proceeded to dismissed It only on the ground that the petitioner was absconding. The inference of the abscondance of the petitioner was drawn on the mere fact of his absence. No attempt was made to take steps under chapter VI for compelling the appearance of the petitioner and declaring him absconder. Therefore, it is argued by the learned advocate for the petitioner that the petitioner cannot be said to be absconding. This Court wonders if notice could be issued to the surety, why no such notice was not issued to the appellant petitioner herein.

Learned advocate for the petitioner undertakes to file undertaking of the petitioner ensuring his presence on each day of hearing of the appeal before the appellate Court. Learned advocate states that the petitioner also undertakes to co-operate with trial Court and not ask for any adjournment unless absolutely necessary.

In above view of the matter and in view of the undertaking of the petitioner, the impugned order cannot be sustained and It is therefore, quashed and set aside. Rule is made absolute with a direction to the petitioner to remain present in the appellate Court ready for the hearing on 28.10.2015. It is also directed that if the appellant intends to engage an advocate, the said exercise shall be done within a week from today. No time for engagement of an advocate will be granted by the appellate Court.

Direct service is permitted.