1. By way of present appeal, the State of Gujarat has challenged the judgment and order dated 17.2.2005 passed by learned Jt. Judicial Magistrate First Class, Navrangpura, Ahmedabad (Rural) in Sessions Case No. 227 of 2000 acquitting the respondents from the charges under Section 2(a)(b), 7 (1)(5) and 16(1)(a),(1) and (1) of Prevention of Food Adulteration Act, 1954.
2. The brief facts arising out of the case are as under :-
That one Y.M. Soni, PW 2, who was working as Food Inspector, visited a shop, namely, Sainath Stores, which belongs to accused No. 2, on 6.11.1997 and purchased three Manikchand Gutkha packets. In accordance with the provision of Prevention of Food Adulteration Rules, the sample were sent for public analysis. It has come on record that, during his investigation the said Manikchand gutkha was found to be produced by Dhariwal Tobbaco Products Ltd. having chamber at J.M. Pune Road, which was purchased by M/s. Ambika Distributor, respondent No. 7 and was sold the same through his nominee accused No. 6 to M/s. Sojas Corporation, of which respondent nos. 2 to 5 are the partners.
On getting report from analyst of Forensic Science Laboratory, it was found that the article was adulterated and the sample of Manikchand gutkha was not complying with the provisions of Rule 62 and 32 (2) of the Rules. One Mr. A.K. Patel, Food Inspector, after receiving sanction from the higher authority, lodged a complaint in the Court of learned Jt. Judicial Magistrate First Class, Navrangpura, Ahmedabad (Rural). Charge was framed by learned Magistrate at Exh.7. The accused persons denied charges and asked for trial.
The learned Judge, after considering the facts of the case, came to the conclusion that respondent nos. 1 to 8 were protected under Section 19(2) of the Act, therefore, they were entitled for acquittal, since they have purchased the article as well as having written warrant in the prescribed form.
3. Accused No. 9, M/s. Dharival Tobbaco Products Ltd. of Vadodara and accused No. 10 is the nominee of respondent No. 1.
4. Shri Neeraj Soni, learned A.P.P. appearing for the State of Gujarat submitted that the learned Judge has erred in coming to the conclusion that the prosecution has failed in establishing that the articles, though, were found to be adulterated, the Trial Court ought to have convicted the accused persons.
5. On the other hand learned Advocate Shri D.K. Modi appearing for respondents has submitted that, qua respondent No. 1 to 8, the case is covered under Section 19(2) of the Act, and as far as respondent nos. 9 and 10 are concerned they are not the manufacturer and therefore, the Trial court has rightly acquitted them from the charges leveled against them.
6. Shri Modi has relied upon the judgment of this Hon'ble Court in the case of Food Inspector vs. Bhagwandas Sunderlal Vatvani, Owner of Firm, Jaishanker Bakery and others reported in 2007(2)FAC 71, and submitted that the case is squarely covered by the same judgment.
7. I have gone through the record and proceedings, and perused the documentary evidence produced on record of the case. As far as respondent nos. 1 to 8 are concerned, it is an admitted fact that the article Manikchand gutkha was sold by accused No. 1, who has purchased the same in packed condition through respondent No. 6, who had purchased the same from respondent No. 7 which is an authorised distributor of Manikchand gutkha.
8. In view of this factual aspect, the Trial court has not committed any error in acquitting the respondent nos. 1 to 8 from the charge. As far as respondent nos. 9 and 10 are concerned, two following aspects emerge from the record that when panchnama Exh. 42 was prepared at shop from a packed box, the name of manufacture on the box was mentioned as Dhariwal Tobbaco Products Ltd. dealing chamber at J.M. Road, Pune- 411004 (India)Dhariwal Group Manikchand.
9. Yogeshchandra Madhusudan Soni, who was examined as PW-2 and who has carried out this but has purchased this article and admitted in deposition, that the name of the manufacture on the box was of Dhariwal Tobbaco Products Ltd,Pune (Exh. 17). The report prepared by Public Analyst under Rule 7(3)of the Rules also mentioned in his report that the name of manufacture is of Pune. In view of this aspect, the respondent no. 9 and 10 can not be teated as manufacturer of the articles, which are found adulterated.
10. In my opinion, the judgment in the case of Food Inspector (supra) is squarely applicable in the present case.
11. It is well settled principle of law that while acquitting an accused a view taken by trial court is possible or plausible, acquittal can not be set aside by substituting its reasons. In present case I do not find any justifiable plausible reason which would convert the acquittal into conviction. I do not find any perversity of facts and law in the judgment delivered by trial court.
12. In view of this, I do not find that the Trial court has committed any error in acquitting of the accused persons. Hence, this appeal is dismissed.
[A.J. DESAI,J.] FH.
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