The appellant State has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of acquittal passed by the learned Additional Sessions Judge and Judge of Fast Track Court (Main), Mehsana on 17.4.2004 acquitting the respondents accused for the offence under sections 2(i)(a)(h)(j), 7(i) and 16(1) of the Prevention of Food Adulteration Act, 1954 (for short “the Act”). 2. According to the prosecution case, the complainant visited the shop run by the accused in the name of M/s Khodiyar Flour Factory at Unava, Tal: Siddhapur and purchased 450 gm of chilly powder for the purpose of analysis and sent it to Public Analyst, Rajkot. The report of Public Analyst indicated that powder did not conform with the standards and provisions laid down under the Prevention of Food Adulteration Rules, 1955. Therefore, after obtaining sanction to prosecute the accused, the complainant filed a complaint against the accused and it was registered as Criminal Case No.297 of 1992 by learned JMFC at Unjha.
3. After trial, the learned Magistrate convicted the accused. Therefore, Criminal Appeal No.30 of 2001 was preferred by the convicts before the learned Additional Sessions Judge and Judge of Fast Track Court (Main) at Mehsana. After hearing learned advocates for the parties, the lower appellate Court by judgment dated 17.4.2004 set aside the judgment and order of conviction passed by the trial Court and acquitted the accused. Being aggrieved by the said decision, State has preferred this appeal.
4. I have heard learned APP Miss Shah for the appellant and learned advocate Mr. Modi for the respondent accused at length and in great detail. I have also perused R & P of the trial Court.
5. Learned APP Miss Shah submitted that the complainant after following necessary procedure collected sample for analysis and sent it for analysis. She also submitted that the sample was kept in dry, clean and transparent bottles. She also submitted that there was compliance of Rule 14, but the lower appellate Court committed error in recording finding in that regard. She also submitted that the sample taken by the complainant was homogeneous and evidence in that regard was also produced before the trial Court. However, the lower appellate Court committed error in interpreting the evidence and therefore, the impugned judgment is required to be set aside and order of conviction passed by the trial Court is required to be restored.
6. Learned advocate Mr. Modi submitted that the complainant in his oral evidence did not depose about the procedure followed by him in collecting the sample. He also submitted that before taking the sample, the complainant did not stir the food article. Therefore, the sample was not a representative sample and hence, the lower appellate Court was justified in acquitting the accused and no interference is warranted in the impugned judgment. He relied on decision of State Vs. Mahavir reported in 2009 Cri.L.J. 3313 and an unreported decision of this Court (Coram: S.R. Brahmbhatt, J) in Criminal Appeal No.382 of 2010 dated 8.4.2010 and decision of State of Gujarat Vs. Prajapati Amratlal Natvarlal reported in 2008(1) GLR 765.
7. Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean, dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. In order to prove compliance of Rule 14, the complainant examined himself at Exh-78. The witness in his evidence deposed that he purchased 450 gm of chilly powder in presence of Panchas from the accused and filled in, in equal quantity in three transparent clean and dry bottles and it was tightly closed. In the cross examination, the witness admitted that chilly powder was in open tin and other articles of grocery were lying near it. The prosecution also examined Panch witness Patel Pradeepkumar Shankarlal at Exh-12. The panch witness turned hostile and did not support the prosecution case. Therefore, except evidence of complainant, there is no evidence to prove that the complainant collected the food article in clean, dry and transparent bottles. It is not in dispute that the complainant did not depose that at the time of taking the sample, the bottles were cleaned and dried. Therefore, compliance of Rule 14 raises serious doubt. In the decision of Prajapati Amratlal (supra), this Court has held that mere statement of Food Inspector would not amount to compliance with mandatory provisions of Rule 14. In the present case, as observed earlier, except evidence of complainant, there is no evidence that there was compliance of Rule 14. Therefore, the lower appellate Court was justified in acquitting the accused.
8. As regards the contention that representative sample was not collected by the complainant, it appears from the evidence of the complainant that nowhere he has stated that the sample was collected after mixing of chilly powder. In the decision of Mahavir (supra), Delhi High Court has taken a view that when the food article was not mixed with the help of clean and dried jhaba by rotating clock-wise, anti clockwise, the sample cannot be considered to be a representative sample. This Court, in an unreported decision passed in Criminal Appeal No.382 of 2010, took similar view with regard to homogeneous sample. In the present case, there is no evidence that the complainant mixed the powder before taking the sample. Therefore, the sample sent to the Public Analyst for analysis cannot be considered as representative sample and hence, the lower appellate Court was justified in acquitting the accused.
9. In view of above, learned APP has failed to point out any infirmity in the impugned judgment and therefore, the appeal fails and stands dismissed.
shekhar* (BANKIM.N.MEHTA, J.)