By way of present revision application, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the judgment and order of conviction dated 05th August, 2010 passed by the learned Additional City Sessions Judge, Court No.6, Ahmedabad in Criminal Appeal No.113 of 2007 whereby the learned Additional City Sessions Judge has confirmed the judgment and order of conviction dated 23rd August, 2007 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad in Criminal Case No.36 of 2001.
The short facts of the prosecution case is that the complainant is Food Inspector. It is the case of the prosecution that that on 17th June, 2000 at about 11.30 hours the complainant and his peon were standing at Sarkhej octroi toll booth for the purpose of taking specimen of the foods being transported in the vehicles. At that time one temp passed and it was intercepted by the complainant.
When the driver of the tempo was asked about the goods, the driver told that he was on his way to deliver oil tins to Puja Chambers, Vasna, Ahmedabad and further stated that the said goods were purchased by the present applicant. Thereafter the applicant was called to the place. Thereafter, in presence of panch witness, the complainant take sample of oil from one of the tins after paying consideration. It is also the case of the prosecution that after following due procedure of sealing, the sample was sent to the Public Analyst, Ahmedabad for analysis. On examination, the Public Analyst found that the said sample was not in confirmity with the standard prescribed under the provisions of the Prevention of Food Adulteration Act and Rules and the same appeared to be adulterated. Therefore, after following the due procedure, complaint was filed against the present applicant in the Court of learned Metropolitan Magistrate, for the offence punishable under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.
Thereafter the learned Magistrate issued summons to the applicant and then charge was framed; however, the applicant denied the case of the prosecution and claimed to be tried. Thereafter, trial against the applicant commenced. After hearing both the sides, the learned Metropolitan Magistrate vide his impugned judgment and order of conviction dated 23rd August, 2007 convicted the applicant for the offence punishable under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and ordered to undergo rigorous imprisonment for a period of six months and also imposed fine of Rs.1,000/-, and in default of payment of fine, ordered to undergo simple imprisonment for a further period of one month. However, the learned Magistrate acquitted the accused No.2 giving benefit of doubt.
Being aggrieved by and dissatisfied with the said impugned judgment and order of conviction, the applicant has preferred Criminal Appeal No.113 of 2007 in the Court of Sessions. After appreciating the evidence produced on record and after perusing the judgment and order of trial Court, the learned Sessions Judge, Court No.6, Ahmedabad vide his impugned judgment and order dated 05th August, 2010 confirmed the judgment and order dated 23rd August, 2007 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad and dismissed the appeal of the present applicant.
Being aggrieved by and dissatisfied with both the impugned judgment and order of conviction, the applicant has preferred the present revision application.
Heard Mr.D.K. Modi, learned counsel for the applicant, Mr.H.L. Jani, learned Additional Public Prosecutor for respondent No.1-State and Ms.Shaili Kapadia, learned counsel for respondent No.2.
Mr.Modi, learned counsel for the applicant, states that the prosecution has failed to prove its case beyond reasonable doubt against the present applicant. He has contended that the oil tins were recovered at Sarkhej toll booth and not from the place of the present applicant. The said tins of groundnut oil were purchased by the present applicant for the purpose of selling in Ahmedabad. Name of manufacturer was also stated on the label pasted on the tins. Thus, the applicant is the retailer and not the manufacturer or producer of the oil. Therefore, the applicant cannot be convicted for the offence alleged against him. Even the applicant has not taken the delivery of the oil tins. The said tins were packed and were not recovered from the place of the applicant. Hence, if at all the said oil was adulterated, then also the applicant cannot be held guilty. He has further contended that the complainant-Food Inspector has not followed the mandatory provisions contemplated under the Prevention of Food Adulteration Act and Rules. The complainant has not properly followed the provisions of law while sealing and seizing the sample. Both the Courts below have not properly appreciated the evidence produced before them and have passed absolutely unjust orders. He has contended that both the Courts below have not given any cogent and convincing reason for convicting the applicant. Even there are contradiction in the depositions of complainant and panch, which is not properly appreciated by the Courts below. He, therefore, contended that looking to the facts of the case and evidence on record, both the impugned judgment and orders of conviction are required to be quashed and set aside.
As against this, Ms.Shaili Kapadia, learned counsel for the respondent No.2, has contended that the Judgment and Orders of conviction passed by both the Courts below are just, proper and legal and need not require any interference. Both the Courts below have passed the orders after properly appreciating the evidence produced before them. She has further contended that the complainant-Food Inspector has followed the proper procedure while collecting the sample, etc. The sample was seized and sealed properly. She, therefore, contended that the orders of conviction passed by both the Courts below are required to be confirmed by this Hon'ble Court.
I have gone through the orders of conviction passed by both the Courts below. I have also perused the oral as well as documentary evidence led before the Courts below and also considered the submissions made by learned advocates for the parties.
In the present case, groundnut oil is recovered at Sarkhej Octroi tool booth when the same was in transit from Rajkot to Ahmedabad. The applicant is a retailer and has purchased the said oil from its manufacturer at Rajkot for selling it in Ahmedabad. The complainant-Food Inspector had collected the sample at Sarkhej Octroi toll both and at that time, the tins were in packed condition. Thus, when the tins were not recovered at the place of the applicant, and more so when the applicant has purchased the same from its manufacturer, the applicant cannot be held guilty for the offence of Prevention of Food Adulteration Act. Name and address of the manufacturer is mentioned on the tin. The complainant-Food Inspector had intercepted the tins in transit and therefore, the applicant, who has not even received the goods, cannot be held guilty. Therefore, as per the decision reported at 2006(3) G.L.R. 2477 of the Hon'ble Supreme Court of India, accused are entitled to receive benefit of Section 19(2) of the P.F.A. Act. It appears that there are serious lacuna in the oral as well as documentary evidence of prosecution.
The prosecution has miserably failed to prove the case against the applicant. Thus, from the evidence itself it is established that the prosecution has not proved its case beyond reasonable doubt.
In above view of the matter, I am of the considered opinion that both the Courts below have committed grave error in convicting the applicant.
In view of above, present revision application is allowed. The impugned judgment and order of conviction dated 05th August, 2010 passed by the learned Additional City Sessions Judge, Court No.6, Ahmedabad in Criminal Appeal No.113 of 2007 confirming the judgment and order of conviction dated 23rd August, 2007 passed by the learned Metropolitan Magistrate, Court No.6, Ahmedabad in Criminal Case No.36 of 2001 are hereby quashed and set aside. Bail bond, if any, shall stand discharged. Rule is made absolute. Record and Proceedings, if any, be sent back to the Court concerned, forthwith.
(Z.
K. Saiyed, J) Anup Top