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Judgment
S.R. Brahmbhatt, J.—The appellant, State of Gujarat has preferred this appeal u/s 378(1)(3) of the Code of Criminal Procedure, 1973 against the order of acquittal dated 30.4.2004 passed by the Learned Judicial Magistrate First Class, Vijapur in Criminal Case No. 79 of 2000 where under the respondents accuseds have been acquitted mainly on the ground of vitiation of the prosecution for want of valid sanction.
The facts in brief leading to file this appeal deserves to be set out as under:
The complainant Food Inspector on 30.7.1999 at about 15:00 hours visited the dairy called Aavkar Dairy at Vijapur in presence of Panch witnesses. The pasteurized standard milk was being sold in 500 m.l pouch and it was being packed. After notifying his intention to collect the sample, picked up two pouches, 500 m.l of each and after pouring the milk in a steel vessel and stirring it properly so as to bring it to the room temperature, purchased 750 m.l. milk for the purpose of analyst. The said milk was poured in equal proportion in three dried, clean and odour less glass bottles in presence of Panch and those bottles were sealed after adding requisite amount of formalin. This entire procedure was done in accordance with law. Thereafter, the sample was sent to public analyst and the remaining part of two samples were sent to the local health authority as the report indicates that the milk was not as per the prescribed standard and found deficient in fat contents. The requisite sanction was obtained u/s 20 of the Prevention of Food Adulteration Act and accordingly the complaint was lodged against the accused for commission of offense punishable under the provisions of the Prevention of Food Adulteration Act. The Court after taking the evidence and appreciating the same, came to the conclusion that the sanctioning authority who had sanctioned lodging of prosecution was a person holding temporary charge of the post. The gentleman namely Yogesh D. Chauhan did not have requisite authorization nor was he appointed under the law for issuing sanction as the Court has discussed in the impugned order that he was appointed from 22nd October, 1999 to 31st March,2001 working in the office of Foods & Drugs Control Administration. The sanction was obtained with a letter dated 29.11.1999 and he was only an in-charge officer when the sanction came to be issued. The Court has recorded the conclusion that the sanction at Exh.86 was therefore accorded by the person holding charge of the post, regular holder whereof was entitled to issue sanction. Relying upon the various decision of this Court came to the conclusions that the sanction was not issued by competent authority and, therefore, the prosecution stood vitiated and passed acquittal order dated 30.4.2004 impugned in this appeal.
Ms. C.M. Shah, learned A.P.P. could not controvert this facts but made feeble attempt to justify the sanction that the person who is entrusted a charge of the post is entitled to issue sanction order also. Shri D.K. Modi, learned advocate appearing for the accused-respondents herein placed reliance upon the decisions cited herein below:
(1). In case of State of Gujarat v. Dhirajlal Amratlal Kansara and Anr. reported in 1975 GLR, 982.
(2). In case of State of Gujarat v. Barkat Ali Pyarali Khoja M/s. Anwarali Pyarali and Ors. reported in 2007 (2) FAC 36.
(3). In the case of The State of Gujarat v. Samirbhai Harishankarbhai Raval reported in 2009(1) FAC 551.
(4). unreported judgment of this Court in case of State of Gujarat v. Abdulkadar Nannamiya Saiyed in Criminal Appeal 480 of 1993 (Coram: Hon''ble Mr. Justice D.K. Trivedi J.) dated 11.9.2001. (5). In the case of State of Gujarat v. Gordhanbai Jasmatbhai and Ors. decided in Criminal Appeal No. 926 of 1999 (Coram: Bankim N. Mehta, J.) dated 29.12.2008.
and contended that the In-charge Officer cannot have authority to sanction prosecution and on that basis, the entire prosecution stood vitiated.
This proposition of law is well established and as learned A.P.P. could not controvert the same by indicating any contrary judgment, this Court is of the view that without dwelling much upon the other aspects, the appeal is required to be dismissed on account of the fact that the order impugned cannot be said to be so perverse so as to call for any interference under the appellate jurisdiction of this Court. Hence the appeal is dismissed.