CR.A/1058/1988 of STATE OF GUJARAT Vs M/S.SHANKERLAL CHATURBHAI(FIRM)& 2 on 24 November 1995

ORAL JUDGMENT:

The then learned Judicial Magistrate, First Class atMehsana, delivering the judgment on 1st October 1988, in CriminalCase No. 1047 of 1987 on his file, acquitted the respondents, ofthe offences under Section 7(1) and Section 16 of the Preventionof Food Adulteration Act. The prosecution being aggrieved haspreferred this appeal.

2. Mr. I.M. Raval is serving as the Food Inspector. On17-12-1986 at 16.30 hours he went to the firm of respondentswhere edible items are sold. The respondents were also sellingconfectionaries. Mr. I.M. Raval suspected that theconfectionaries were of sub-standard and adulterated. Hetherefore purchased confectionary paying the consideration, anddividing the same into three equal parts packed in the covers.The covers were sealed and were then sent to the laboratory for analysis. The expert reported that the confectionaries sent tohim for analysis were adulterated and injurious to the generalpublic. After the receipt of the report necessary papers wereprepared and sanction to prosecute the respondents was obtainedand the complaint then came to be filed before the learnedJudicial Magistrate, First Class at Mehsana, who recorded theevidence adduced by the complainant, and then giving everyreasonable opportunity to both to submit their say, delivered thejudgment and acquitted the respondents. Challenging the judgmentof acquittal, the present appeal has been filed by the State.

3. When the appeal was called out for hearing, though therespondents are served, no one has appeared. I have thereforeheard Mr. Mehta, the learned Additional Public Prosecutorrepresenting the appellant. According to him, the learnedMagistrate disposed of the matter only on one point regardinggrant of sanction to prosecute and that was the error on hispart. Let me mention what made Mr. Mehta, learned A.P.P. toargue in that regard. According to the learned JudicialMagistrate the sanction was defective and that defect was goingto the root of the case. While according the sanction, theauthority empowered to grant sanction ought to have assigned thereason, as to how the prosecution was in the interest of thegeneral public. When those reasons were not assigned accordingto the Judicial Magistrate First Class, the sanction was nosanction in the eye of law, and when that was the case the wholeproceeding was liable to be quashed, and on that ground alone thelearned Magistrate preferred to acquit the respondents.

4. In this case therefore the points that arise forconsideration are not even few, but only one, and it is aboutsanction. Whether while according the sanction the sanctioningauthority is required to assign the reason that prosecution is inthe interest of public has to be determined. It may be stated atthis stage that the learned Magistrate has no doubt delivered thejudgment and held that the confectionaries seized wereadulterated but for coming to the conclusion he has assigned noreason and therefore there is no effective appreciation ofevidence on record on his part and simply he has scrawled. Butthat apart whether acquittal is sustainable on the reason thelearned Magistrate has given, has to be examined.

5. The point is set at rest by this Court as back as in1991. This Court in the case of Harshvadan Dahyalal Sevak, FoodInspector vs. Nareshbhai Devandas Vaghvani & Anr., - 1991 (2)G.L.H.615 had the occasion to deal with the point raised andconsidering all relevant provisions of the Act applicable, thisCourt came to the conclusion that it is not necessary to recordthe reasons while according the sanction to prosecute under thePrevention of Food Adulteration Act. When the point is set atrest by this Court, in view of that decision the order of acquittal recorded by the learned Magistrate cannot be maintainedand the same is required to be quashed. It seems no one drew theattention of this decision to the learned Magistrate, otherwisecertainly the learned Magistrate would have not passed the orderin question.

6. When it is found that reasons are not required to begiven while according the sanction in this case the sanctioncannot be held bad. When the sanction is not bad, the case hasto be judged on the points of facts and law that arise forconsideration, but the same has not been done by the learnedMagistrate below. Consequently, for considering the rivalsubmissions on the points of facts and law that are required tobe determined, the matter will have to be sent back setting asidethe order of acquittal. The appeal is, therefore, required to beallowed. It is accordingly allowed. The judgment and orderacquitting the respondents are hereby set aside. The case besent back to the learned Magistrate for hearing and disposal inaccordance with law. The learned Magistrate shall grantreasonable opportunities to both, and then dispose of the caseaccording to law.

7. The parties to appear before the the learned JudicialMagistrate, First Class at Mehsana on 12th December 1995 at 11.00a.m.......