CR.A/442/1991 of ASHWINBHAI H ACHARYA Vs DAHYALAL AMRUTLAL on 28 November 2002

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL APPEAL No 442 of 1991

For Approval and Signature:

Hon'ble MR.JUSTICE D.K.TRIVEDI

============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- ASHWINBHAI H ACHARYAVersus DAHYALAL AMRUTLAL -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 442 of 1991 MR BP TANNA for Appellant No. 1 NOTICE SERVED for Respondent No. 1 MR KT DAVE APP for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.K.TRIVEDI

Date of decision: 28/11/2002

ORAL JUDGEMENT

#. This appeal is filed by the appellant - original complainant - Food Inspector and challenged the order of learned Judicial Magistrate First Class (Municipal), Rajkot, acquitting the accused for the offences punishable under Sections 7 (i) and 16 (1) (a) (i) of the Provisions of Food Adulteration Act, while disposing of the Criminal Case being Criminal Case No. 269 of 1985 filed by the appellant Food Inspector. When the appellant has filed appeal challenging the order of acquittal, this Court has while granting leave to appeal has admitted the appeal as per order dated 3rd July, 1991. Accordingly, appeal is notified before me for final hearing.

#. Mr. Tanna, learned Senior Advocate has taken me through the paper book consisting of evidence of prosecution witnesses and the documentary evidence on the record of the case and the judgement under challenge. It is the contention of Mr. Tanna that learned Magistrate has committed error while appreciating the document namely sanctioned to prosecute the accused passed by the local authority by holding that the sanctioned to prosecute accused is based without any application of mind and by deciding the issue regarding sanctioned to prosecute, the learned Magistrate has acquitted the accused only on that ground, by holding that the sanctioned to prosecute the accused issued by the authority is not legal and valid. Accordingly, Mr. Tanna has urged that the order of acquittal rendered by the learned Magistrate deserves to be set aside.

#. The respondent accused is duly served and has chosen not to participate this proceedings.

#. I have also heard Mr. K.T. Dave, learned APP, who appeared for the respondent State.

#. Considering the submissions made before me, it transpires from the evidence that the appellant original complainant was working as Food Inspector, attached to Rajkot Municipal Corporation, has purchased a sample of "Raj Mukhvas" from the respondent accused, who was having Pan Masala shop. It is the case of the complainant that while taking such sample of "Raj Mukhwas", he has taken all precautions and followed the necessary procedure prescribed under the Provisions of Food Adulteration Act and Rule (hereinafter referred as "Act" and "Rules" for short) and after purchasing the said article of "Raj Mukhvas", he has also sent the said sample to Public Analysis for analysis and as per report of the Public Analysis, the said substance was found adulterated and it contained addition of Saccharin and according to the opinion of the Public Analysis, the same is contraband under the provisions of Prevention of Food Adulteration Act and Rules.

#. As found from the findings recorded by the learned Magistrate, it is an admitted fact that the sample of "Raj Mukhwas" was contained saccharin and said sample was purchased by the complainant from the shop of the respondent accused and as per Analysis report, there is an addition of Saccharin. The learned Magistrate has also accepted the case of the complainant in respect of the purchase of "Raj Mukhwas" from the accused by following provisions of Act and Rules. However, while examining the order of sanction to prosecute issued by the authority, the learned Magistrate has held that the sanction to prosecute accused as provided under Section 20 of the Act is defective and on that ground, the learned Magistrate has acquitted the accused.

#. Accordingly the point, which this Court is required to consider is only limited to the effect that whether finding recorded by the learned Magistrate by holding that the sanctioned to prosecute respondent accused under the Act is illegal and without application of mind, is proper or nor and accordingly, I have gone through the sanctioned issued by the Competent Authority to prosecute the accused in view of the reports submitted by the Food Inspector. The Trial Court has on examining the said document, namely sanctioned to prosecute the accused issued by the Competent Authority, has held that while issuing such sanctioned, no proper application of mind was there and because of non application of mind to prosecute the accused, the accused deserves to be acquitted from the charges levelled against him. It is also equally necessary for me while deciding this appeal to refer certain provisions of the Act and Rules and accordingly, Section 7 (i), (v) & Section 16 (1) (a) (i), (ii) of the Prevention of Food Adulteration Act is reads as under:- "Section 7 :-Prohibition of manufacture, sale, etc. of certain articles of food. - No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute - (i) any adulterated food.

(ii) xxx xxxx (iii)xxx xxxx (iv) xxx xxxx (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder,

(vi) xxx xxxx