State of Gujarat - for and on behalf of J.H. Shah, Food vs Kiritkumar Gopaldas Kakkad Vendor and Owner and Another

S.R. Brahmbhatt, J.—The applicant-appellant State of Gujarat has preferred application and Appeal u/s 378(4) of the Code of Criminal Procedure, 1973 assailing the judgment and order dated 16th July, 2009 passed by the Chief Judicial Magistrate, Rajkot in Criminal Case No. 3179 of 2003 acquitting him u/s 248(1) of the Criminal Procedure Code for the reasons stated thereunder.

Shri M.G. Nanavaty, learned Additional Public Prosecutor for the applicant-appellant was permitted to make submission at length in respect of the grounds urged in appeal for justifying the granting of leave.

This Court is of the view that looking to the judgment impugned in this appeal and when the Court has come to its conclusion for acquitting the accused on various grounds, namely, non-application of mind while giving sanction (2) breach of procedure in collecting the sample and (3) violation of Section 11(1)(c)(i) and when the accused was found to be not liable to be held guilty and accordingly the accused was acquitted, leave is required to be refused for the reasons mentioned hereinbelow:

The facts in brief leading to filing of this appeal as well as leave to appeal deserve to be set out as under:

The original complainant, Food Inspector on 7.1.2003 visited the shop of the accused at Rajkot when the owner of the firm was present in the shop. The complainant had visited their shop in presence of Panch witnesses and the owner was informed with regard to his intention to collect the sample of the commodity in which the accused was dealing. The complainant purchased pure Ghee and after dividing it in three equal parts packed it in three jars and sealed the same in accordance with law. This entire procedure was done in presence of Panch witnesses. One part of the sample was sent to the Public Analyst, Vadodara and remaining two parts were sent to the Local Authority and on receiving the report of the public Analyst that food article was adulterated, the requisite consent was obtained from the competent authority and the complaint was made and after registering the complaint under the Prevention of Food Adulteration Act, Section 30(2), the notice and Public Analyst report was sent by Registered Post A.D. The accused did not opt for having remaining samples examined at the end of Central Food Laboratory. The Court, after recording the evidence and examining the same, came to the conclusion that the accused was entitled to be acquitted as the prosecution failed in establishing its case against the accused. The Court has, on three counts, held that the case of the prosecution failed, namely on the following grounds:

(1) As per the Rule 14 of the Prevention of Food Adulteration Rules, 1955, the containers wherein the sample is to be taken are specifically required to be cleaned and dried by the person collecting the sample in presence of the Panch witnesses. Absence of such procedure would render the sample and collecting procedure vulnerable. The Court has recorded in its finding that the complainant in his cross-examination at page No. 10 has admitted that he had not cleaned the container on the spot before taking the sample in question. The Court has also recorded finding that the complainant at page 11 has admitted that he did not have any instruction nor did he examined otherwise whether the containers were cleaned, dried and whether procedure for taking such sample for such examination is not required to be done. The Court has relied upon the decision of this Court in the case of State of Gujarat v. Rejendrakumar Melabhai Patel decided on 12.6.2006 in Criminal Appeal No. 404 of 1996 and in the case of State of Gujarat through S.S. Patel, Food Inspector and Anr. v. Shyamal Tolaram Kourani decided on 13.5.2009 in Criminal Miscellaneous Application No. 16203 of 2008 in Criminal Appeal No. 3036 of 2008, which are also on the same line.

The second lacuna which was found to be existing in the process of collecting sample was not heating the commodity i.e. pure Ghee before collecting the sample from the entire quantity which was available for selling. The law is no more res integra in this aspect and, therefore, when it has come on record that the sample of Ghee has not been collected after heating it in a given temperature and steering it so as to make it homogeneous representing the entire quantity, the sampling procedure was rightly held to be improper and contrary to law. It is non-application of mind in respect of granting sanction which was actually accorded for mis-branding whereas it was to be sanctioned for adulteration, meaning thereby, it was the case of adulteration but the sanction was granted for misbranding and on that count also the order impugned is just and proper.

The Court is of the view that the order impugned in the appeal does not deserve any interference u/s 378(4) of the Code of Criminal Procedure, 1970. Leave is required to be refused. The application is dismissed.

As the application is refused, the appeal also stands to be refused and hence the same stands dismissed.