The State of Gujarat has preferred this Appeal under Section 378 of the Code of Criminal Procedure, against the Judgment and order dated 28.2.1995 passed by the learned Special Judge, Panchmahals at Godhara, in Special Case No.5 of 1990, whereby the learned Special Judge has acquitted the respondents - accused from the charges alleged against them.
The short facts of the prosecution case is that on 1.8.1989, the Agricultural Inspector, Dahod, went to the shop of the dealer Murtuja Ismail Titi and taken the sample of fertilizer manufactured by Narmada Agro Chemicals Pvt. Ltd. and after completing necessary procedure the sample was sent to the Fertilizer Analyst Laboratory, Gandhinagar. As per the Report dated 4.8.1989, the sample was found as "not up to the standard prescribed." Thereafter, after obtaining the sanction from the Agricultural Director, the complaint was filed against the respondents in the Court. The said case was registered as Special Case No. 5 of 1990.
The charge was framed against the respondents - accused. The respondents - accused have denied the charges levelled against them. The complainant was examined vide Exh.19. Except the complainant no other witness was examined by the prosecution. Necessary documents were produced. Thereafter, further Statement under Section 313 Cr.P.C. of the respondents - accused were recorded in which they have stated that false case is registered against them. Thereafter, the learned Special Judge vide the impugned Judgment and order acquitted the respondents from the charges levelled against them.
Being aggrieved by and dissatisfied with the Judgment and order dated 28.2.1995 passed by the learned Special Judge, Panchmahals at Godhra, in Special Case No. 5 of 1990, the appellant - State of Gujarat has preferred this Appeal.
Heard learned A.P.P. Ms. Zaveri, appearing on behalf of the appellant - State. Though served, the respondents have not remained present.
Learned APP for the appellant has contended that the trial Court has committed grave error in not believing the case of the prosecution. She has contended that the trial Court has erred in observing that the prosecution has not proved that the sample taken on 1.8.1989 from the shop of the accused in his presence is not as per the standard prescribed. She has contended that the fertilizer purchased by the Inspector is not as per the standard prescribed. She has contended that the trial Court has wrongly observed that the procedure prescribed in Schedule II of the Fertilizer Control Order 1985, more particularly, Part-A, Clause (i)(D) read with clause 2(i) is not properly followed though it is specifically mentioned that when number of bags are 10, sample be selected as per one bag. She has contended that in form No.J the dealer has to certify that the sample has been taken as per the prescribed procedure and has sent the same and in the present case the dealer has signed in form No.J. She has contended that the muddamal is recovered and sealed by the complainant in proper manner, who is Government. However, the said fact is not considered by the trial Court. She has, therefore, contended that looking to the facts and circumstances of the case, the Appeal may be allowed and the Judgment and order of the trial Court may be quashed and set aside.
Other side is duly served, but, has not remained present. I have gone through the Judgment and order of the trial Court. I have also gone through the papers produced before me.
Upon perusal of the papers as well as the Judgment of the trial Court, it appears that the muddamal was sealed and seized by the complainant in absence of panch witness and, therefore, the provision of sealing and seizing of muddamal is not properly followed by the complainant. It has also come in evidence that the sample was taken on 1.8.1989 and at that time it was monsoon season and weather can also change the nature of articles. The learned Judge has also observed that in Panch Mahals, in the year 1989, there was heavy rain fall and due to heavy rain expert analyst cannot give his opinion about the result of sample. The trial Court has also observed that except the complainant, no independent witness has been examined to support the say of the complainant and no documentary is produced to support the case of the prosecution. It is rightly observed by the trial Court that during the seizing and sealing of sample the procedure as prescribed in sub-clause (iv) of section 4, sub-rule (4) is required to be followed and in the present case the same is not followed by the complainant.
I am, therefore, of the opinion that looking to the facts of the case and looking to the fact that no other independent witness has been examined and the muddamal is also seized and sealed in absence of any panch witness, the learned Judge has rightly not believed the case of the prosecution. Even the report of the Chemical Analyzer is also not helpful to the case of prosecution. Therefore, no interference is called for.
In view of above, the Appeal fails and is hereby dismissed. The Judgment and order dated 28.2.1995 passed by the learned Special Judge, Panch Mahals at Godhra in Special Case No.5 of 1990 is hereby confirmed. R & P, if any, to be sent back to the trial Court.
(Z.K.SAIYED, J.) sas Top