At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE D.C. GHEEWALA & THE HONOURABLE MR. JUSTICE J.P. DESAI
For the Appearing Parties: K.J. Sethna, K.K. Chokhavala, Advocates.
(1) Rasiklal Mohanlal Shah serving as a Food Inspector Navsari Nagar Palika Navsari in the year 1979 (hereinafter referred to as the complainant) went to the shop of Mohanlal Narandas Gandhi (hereinafter referred to as the accused) on 21-2-1979 and demanded a sample of Vanila Ice-cream in the presence of another person who was called upon to act as a panch. The sample was accordingly given by the accused and it was divided into three parts as per the requirement of the Prevention of Food Adulteration Rules (hereinafter referred to as the rules) and also sealed as per the requirement of the said rules. Slips were affixed on the said three bottles on which necessary particulars were mentioned also as per the requirements of the rules. One of the sealed bottles alongwith the memorandum in the prescribed form alongwith the specimen seal was sent to the Public Analyst for analysis. The remaining two sample bottles were sent to the local Health Authority namely District Health Officer at Valsad. The Public Analyst on analysis of the sample found that it did not confer to the standard laid down under the rules. Public Health Authority was moved for according sanction to prosecute the accused for offences punish able under sec. 7 read with sec. 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The sanction was granted by the said authority and thereafter complaint was filed against the accused by the complainant in the Court of Judicial Magistrate First Class Navsari on 31/03/1979. The accused pleaded not guilty to the charge and claimed to be tried. The learned Judicial Magistrate after appreciating the evidence recorded before him reached a conclusion that the guilt of the accused was established and accordingly convicted and sentenced him to Rigorous Imprisonment for 6 months and to pay a fine of Rs. 1000.00 in default to further R.I. for one month. The accused being dissatisfied with the said judgment of conviction and sentence filed Criminal Appeal No. 8 of 1980 in the Court of Sessions Judge Valsad at Navsari. The learned Sessions Judge Valsad at Navsari who heard the appeal accepted the request made by the original accused in writing at Ex. 11 to call for the two sample bottles which were sent to the Local Health Authority to find out whether the said bottles were properly sealed and packed or not. The learned advocate who appeared for the original complainant in the appellate Court objected to this application. He made an endorsement I object. The learned Sessions Judge did not pass any speaking order below the said application but only directed that a summons be issued as prayed for. The summons was accordingly issued to the Local Health Authority to send some conversant person with two sample bottles. The District Health Officer directed one Shri C. B Mehta District Sanitary Inspector Health Department of his office to go to the Sessions Court as per the said summons and he accordingly went to the Sessions Court on 28-5-80 and produced the packet containing two sealed bottles with a written pursis Ex. 14. The learned Sessions Judge on perusing the evidence and on examining the bottles which were produced before him reached a conclusion that the conviction of the accused was not proper on the evidence recorded before the learned Magistrate. He accordingly allowed the appeal. Being dissatisfied by the said judgment of acquittal rendered by the learned Sessions Judge the original complainant has filed this appeal.
(2) The learned advocate Shri K. K. Chokhavala appeared on behalf of the original complainant before this Court. He vehemently and very rightly contended that the course adopted by the learned Sessions Judge in calling for the bottles was highly illegal and improper. He also very rightly contended that no record was kept about opening the packet and as to what was observed after opening the packet and only in the judgment certain observations are made in that regard. We may mention here that the rojnama of the Criminal Appeal dated 28/05/1980 shows that on that day sealed packet was produced and it was ordered to be kept with Nazir in muddamal room and the appeal was fixed for hearing on 4-6-80. The rojnama of 4-6-80 shows that the muddamal bottles were produced by the Nazir in the Court and arguments were heard and the bottles were sent back to Nazir and the matter was adjourned for judgment and the judgment was then delivered on 30-6-80. It is pertinent to note that it is nowhere mentioned in the rojnama that the bottles were opened on a particular date. The learned Sessions Judge also has not kept any other record to show as to when the packet was opened and when the seals were opened and in whose presence. The course adopted by the learned Sessions Judge with due respect to him in calling for the bottles on such an application without considering as to how the bottles can be called for was highly improper. The accused did not challenge the report of the Public Analyst before the trial court even though he was entitled to do so as per the provisions of the Act. Sec. 13(2) of the Act makes a provision giving a right to the accused to make an application to the Court within a period of 10 days from the date of receipt of the copy of the report to get the sample analysed by the Central Food Laboratory. The accused did not make any such request before the trial Court. He was thus satisfied with the report of the Public Analyst. In view of this it is surprising that on such a request made by the original accused the learned Sessions Judge granted that request without giving any reasons whatsoever as to why he was inclined to grant that request. Even if he was inclined to grant that request he should have asked the learned Counsel of both the parties to be present and should have opened the packet in their presence and prepared something like a memorandum or minutes to show that the said packet was opened in the presence of concerned advocates and should have made a note as to what was revealed on opening the packet. An opportunity also should have been given to the complainant to call the complainant to show him t
Please Login To View The Full Judgment!
he said sample bottles and seek clarification from him before taking into consideration the condition of seal etc. when they were produced before the Court. The course adopted by the learned Sessions Judge is illegal and highly objectionable arid we strongly disapprove the same. We will keep aside the observation made by the learned Sessions Judge of what he saw on opening the packet while dealing with this appeal. We propose to dispose of this appeal only on the material which was on the record of the trial court ignoring what transpired in the Sessions Court after calling for the bottles and oPening them. (The rest of the judgment not material for the reports.) Appeal dismissed.