The petitioner has filed this Criminal Revision Application under Section 397 of the Code of Criminal Procedure, 1973 and challenged the judgement and order dated 17.8.2004 passed by learned Additional Sessions Judge, Fast Track Court, Panchmahals in Criminal Appeal No. 72 of 2000 confirming the judgement and order of conviction passed by learned Judicial Magistrate First Class, Kalol, on 13.10.2000 in Criminal Case No. 175 of 1995 convicting him for the offences under Sections 16(1)(a)(i), 2(ia) (a),(b),(c) and (m) and Sections 7(i) and
(v) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") and Section44(h) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "the Rules") and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs. 500/-, in default to undergo imprisonment for one month.
2. According to the prosecution case, the complainant Food Inspector visited shop of accused Dineshkumar Navneetlal Parikh on 6.9.1994 at about 11.30 p.m. and purchased samples of turmeric powder weighing 600 grams for Rs. 14.40 for the purpose of analysis. The turmeric powder was filled in three bottles in equal proportion and they were sealed. Panchnama in that regard was drawn. One of the samples was sent to Public Analyst at Bhuj after following the procedure prescribed under the Act. The Public Analyst's report found the sample adulterated. Therefore, after obtaining sanction to prosecute, complaint was filed for the aforesaid offences.
3. The trial Court after recording evidence convicted the appellant by its judgement and order dated 13.10.2000. Therefore, the accused preferred appeal but the lower appellate Court dismissed the appeal and confirmed the judgement and order of conviction passed by the trial Court. Being aggrieved by the said decision, the petitioner has approached this Court by filing this Revision Application.
4. I have heard learned advocate Mr. Y.M. Thakkar for the petitioner and learned A.P.P. Mr. N.J. Shah for the respondent State at length and in great detail. I have also perused the copy of the evidence supplied by learned advocate for the petitioner.
5. It appears from the record that prosecution was launched against two accused and both the accused were convicted by the trial Court. Therefore, the accused filed appeal against their conviction but the appeal also came to be dismissed. Therefore, the accused/convicts approached this Court by filing the present Criminal Revision Application. During the pendency of the Revision Application, petitioner Dineshkumar Navneetlal Parikh died and therefore learned advocate did not press the Revision Application filed by the said petitioner.
6. Learned advocate Mr. Thakkar mainly submitted that the Courts below committed error in convicting the petitioner accused as there was breach of mandatory provison of Rule 14. He submitted that according to the Rule, sample of food for analysis is required to be taken in dry clean bottles or jars or in any other suitable containers and in case of dry substance they are required to be carefully sealed to avoid entry of moisture but the prosecution failed to prove that the food article was collected in clean dry bottles. He also submitted that according to the prosecution case spoon used for collecting the food article was cleaned by peon but the said peon has not been examined. There is breach of mandatory provision and hence the Courts below committed error in convicting the petitioner. Therefore, present Revision Application is required to be allowed. He relied on the decisions of this Court in the case of STATE OF GUJARAT VS. BHUPENDRA M. MEHTA reported in 1999(1) GLH 227 and STATE OF GUJARAT VS. LAGHADHIRBHAI VAGHJIBHAI PRAJAPATI reported in 2009(1) Crimes 1 (Guj).
7. Learned A.P.P. Mr. Shah submitted that the witness examined by the prosecution has deposed that the bottle was clean and dry and this was ascertained by the panchas. Therefore, there was due compliance of mandatory provision of Rule 14. Hence the Courts below were justified in passing the impugned judgements and order of conviction and no interference is warranted in the impugned judgements.
8. Under Rule 14 samples of food for the purpose of analysis are required to be taken in clean dry bottles and shall be closed sufficiently tight to prevent leakage or evaporation and in case of dry substance to prevent entrance of moisture the bottles are required to be carefully sealed. In order to prove compliance of this mandatory requirement, prosecution examined PW-1 Poonamchand Revabhai Panchal at Exh. 12. According to the witness, the sample of food article was filled in transparent dry and clean bottles with the help of dry and clean spoon. The witness was extensively cross-examined. In the cross-examination the witness deposed that the spoon was cleaned on previous day by his helper V.S. Damor. The witness also deposed that the bottles were issued to him on the previous day and admitted that the clerk issuing the bottles did not clean them in his presence. In view of this evidence, there is no cogent and convincing evidence to show that the sample of food article was collected in clean and dry bottles.
9. As regards spoon the witness deposed that his helper Mr. Damor cleaned the spoon on the previous day but the prosecution did not examine Mr. Damor to prove that the spoon was cleaned and dried.
10. In the decision of State of Gujarat Vs. Bhupendra M. Mehta (supra) this Court in paragraph 9 observed as under:
"Mr.
Vora submitted that a specific question was put about the cleaning of the bottles, but there is no answer by the witness and what is stated is that the bottles were lying in his custody for eight days. Therefore, the bottles were cleaned or not, is not established by the prosecution. He further submitted that the Food Inspector has not stated that he himself has cleaned it or under his supervision the bottles were cleaned and thereafter, the bottles were properly kept. It is required to be noted that duty is cast upon the prosecution not only to comply with the mandatory provision of law by using clean and dry bottles for storing the sample but also to satisfy the Court by leading evidence at the Trial Court that the bottles used were clean and dry. In the case of M.B. RISALDAR VS. RADHESHYAM reported in 21(2) GLR 136, this Court has observed as under:
"Even I feel that when a witness testifies to the effect that the glass bottles were cleaned and dried, a mere visual appearance to the naked eye may not be sufficient sometimes. If no questions might have been put to him as to how he can say that the glass bottles were cleaned and dried, probably the matter would have ended there. But he has given out that the peon had cleaned and dried the bottles and put them into the cupboard. In this state of evidence, it was the duty of the prosecution to examine that peon to show that the bottles were properly cleaned and dried and they were put into the cupboard and properly closed."
11. The same view is taken in the decision STATE OF GUJARAT VS. LAGHADHIRBHAI VAGHJIBHAI PRAJAPATI (supra). In view of this settled legal proposition in the present case the prosecution failed to prove compliance of mandatory requirement. Therefore, the Courts below committed error in convicting the petitioner. Therefore, the present Criminal Revision Application is required to be allowed and the impugned judgements and orders passed by the trial Court and the lower appellate Court are required to be set aside.
12. In the result, the Criminal Revision Application is allowed. The judgement and order of conviction and sentence passed by learned Judicial Magistrate First Class, Kalol, on 13.10.2000 in Criminal Case No. 175 of 1995 for the offences under Sections 16(1)(a)(i), 2(ia) (a),(b),(c) and (m) and Section 7(i) and (v) of the Prevention of Food Adulteration Act, 1954 and Section44(h) of the Prevention of Food Adulteration Rules, 1955 and the judgement and order passed by learned Additional Sessions Judge, Fast Track Court, Panchmahals on 17.8.2004 in Criminal Appeal No. 72 of 2000 confirming the judgement and order passed by the trial Court are set aside. The petitioner Pinalkumar Dineshchandra Parikh is acquitted of the offences charged against him. The petitioner is on bail. His bail bond stands cancelled. Fine, if any, paid is ordered to be refunded to him.
(BANKIM N. MEHTA, J) (pkn) Top