D.G.PATEL, FOOD INSPECTOR vs MUKESHBHAI DHULALA PATEL & ANR.

The present appeal under Section 378 of the Code of Criminal Procedure, 1973 arising out of judgment and order of acquittal dated 08.06.2006 passed by learned Metropolitan Magistrate, Court No.8, Ahmedabad in Criminal Case No.116 of 2004 whereby the respondent No.1 came to be acquitted of the offence punishable under Section 16(1)A(I) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954.

The facts in brief giving rise to the present appeal are that the appellant who is working as Food Inspector in Ahmedabad Municipal Corporation visited the shop of the respondent No.1 on 03.09.2004 along with his peonPunjalal B. Mevada. Sample of cow milk was purchased and was sent for analysis after following due procedure. The report of the Public Analyst reveals that the cow milk was adulterated. The appellant, therefore, filed a complaint against the respondent No.1 in the Court of learned Metropolitan Magistrate, Court No.8, Ahmedabad of the offence punishable under Section 16(1)A(I) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954.

The learned Magistrate on the conclusion of the trial acquitted the respondent as he found that mandatory provisions of Section 14(A) were not followed.

The appellant being aggrieved by and dissatisfied with the impugned judgment and order of acquittal has preferred the present appeal.

I have heard Mr. Chintan Gandhi, learned advocate for M/s. R.J. Rawal Associate for the appellant, Mr. D.K. Modi, learned advocate for the respondent No.1 and Mr. K.L. Pandya, learned APP for the respondent No.2State.

Mr. Chintan Gandhi, learned advocate for the appellant relying upon Section 27 of the General Clauses Act, 1897 and submits that unless the contrary proved, it has to be presumed that the notice along with the report of the public analyst was served upon the respondent No.1. He, therefore, urges that the learned trial Magistrate has rightly held that there is no violation of Section 13(2) of the Act.

Mr. Gandhi, learned advocate has vehemently urged that the learned Magistrate ought not to have acquitted the respondent No.1 on the ground that the mandatory provision of Section 14 of the Act are not followed. He submits that the evidence of the appellant and P.W. 2 has stated in their evidence before the Court that the sample of cow milk was collected in dry cleaned glass bottle which they had collected while leaving from shop of the respondent No.1. It is his further submission that the learned Magistrate has committed an error in nonbelieving the reliable evidence of the appellant and P.W. 2. He, therefore, urges that the appeal may be allowed and the respondent No.1 may be convicted.

Mr. Gandhi, learned advocate for the appellant in support of his contention, he has placed reliance unreported decision of this Court in the case of Gangadhar Y. Ramekar v. Mukeshbhai B. Shah, 1999 (1) GLH 237. The decision of this Court in the case of Gangadhar Y. Ramekar (supra) relied on by Mr. Gandhi, learned advocate for the appellant is not applicable on facts of the present case. As in that case, the complainant could not identified the signature of the accused concerned on the acknowledgment slip, and therefore, the learned Magistrate recorded a findings that the complainant had fail to prove that the notice and the public analyst report was served upon the accused concerned is required under Section 13(2) of the Act. In the case on hand, it is undisputed fact that as it is evident from Exhibit11 acknowledgment slip and notice of public analyst report was received by one Mr. Ashokbhai.

Mr. D.K. Modi, learned advocate for the respondent No.1 has supported the impugned judgment and order. He further submits that the mandatory provisions of Section 13(2) are as the breach of the report of analyst with the notice prescribed under Section 13(2) were not duly served upon the respondent No.1. It is his submission that Exhibit11 acknowledgment slip shows that the report and the notice were served upon one Ashokbhai on which fact is also admitted by the appellant in his crossexamination. He further submits that the appellant has not produced any evidence to show that the said Ashokbhai was authorized by the appellant to receive the notice or that he received the notice on behalf of the respondent No.1. Relying upon the decision of the Supreme Court in the case of Rameshwar Dayal v. State of U.P., 1996 SCC (Cri) 75, and a decision of this Court in the case of Rajeshkumar Chandulal Shah v. Babubhai Joitaram Patel, 2007(2) FAC 203 and unreported decisions of this Court in the case of State of Gujarat v. M/s. Mafatlal Kantilal, Criminal Appeal No.882 of 1992, dated - 01.12.2000, State of Gujarat v. Jagdishkumar R. Thakkar, Criminal Appeal No.666 of 1990, dated23.10.1996, State of Gujarat v. Dhulabhai Atabhai, Criminal Appeal No.204 of 1979, dated - 08.12.1980, State of Gujarat v. Kanaiyalal Harijivan Viradiya, Criminal Appeal No.873 of 1991, dated 05.12.2008.

He submits that because of the non service of the notice and report of the public analyst, the respondent No.1 is deprive of his valuable right and has caused the serious prejudice to him, and therefore, the respondent No.1 cannot be convicted on account of violation of mandatory provision of Section 13(2).

He further submits that the appellant has admitted in his crossexamination that the sample collected from the shop of the respondent No.1 was second sample. He, therefore, submits that the appellant has not produced any evidence before collecting the sample from the respondent No.1, the appellant had cleaned the bottle. He, therefore, submits that the learned trial Magistrate has rightly acquitted the respondent No.1 on the ground of violation of required mandatory provision of Section 14. He, therefore, urges that the appeal may be dismissed.

Mr. Chintan Gandhi, learned advocate for the appellant in rejoinder relied upon Section 27 of the General Clauses Act, 1897 submits that a document required to be served by registered post is deemed to be served, if, it is properly addressed by prepaying and unless contrary is proved. In support of his submission he has relied upon the decision of this Court in the case of Gangadhar Yashvant Ramekar v. Mukeshbhai B. Shah and Others, 1999 (1) GLH 237. 12. Mr. K.L. Pandya, learned Additional Public Prosecutor adopts the argument canvassed by Mr. Gandhi, learned advocate for the appellant.

The Supreme Court in the case of Rameshwar Dayal (supra) has held that non supply of report of public analyst along with notice as required under Section 13(2) of the Act serious prejudice is caused to the accused in his defence.

In the case of Rajeshkumar Chandulal Shah (supra), and in various other decisions relied upon by Mr. Modi, learned advocate for the respondent No.1. Similar view is taken by this Court.

Section 13(2) of the Act postulates that copy of public analyst report shall be served upon the accused person so as to enable him to get the sample analyzed by Central Food Laboratory. If the provision of this Section are not followed, as per the settled proposition of law enunciated by the Supreme Court and various decision of this Court causes serious prejudice to the accused in his defence.

In the present case, the appellant in his crossexamination, had admitted that the report of the public analyst and notice under Section 13(2) was sent by RPAD which was received by one Mr. Ashokbhai. The acknowledgment receipt Exhibit10 is signed by Mr. Ashokbhai. The prosecution has not produced any evidence to establish that said. Mr. Ashokbhai was in any way concerned with the respondent No.1 or that he was authorized to accept the notice on behalf of the appellant. Section 27 of the General Clauses Act and decision of this Court in the case of Gangadhar Yashvant Ramekar (supra) cannot come to the rescue of the appellant. Section 13 sub Section(2) of the Act requires that the notice under Section 13(2) of the Act and report of the public analyst shall be served upon the accused. Indisputably, such a notice is served upon one Ashokbhai and since the appellant has not established that said Mr. Ashokbhai was authorized to receive the notice on behalf of the appellant, the wishes of Section 27 of the General Clauses Act and decision of this Court in the case of Gangadhar Yashvant Ramekar (supra), it cannot be presumed that notice and the report of public analyst was served upon the respondent. I am, therefore, of the view that the breach of mandatory provision of Section 13(2) of the act is palpably evident, therefore, conviction cannot be recorded against the respondent No.1.

In view of this evidence of the complainant the breach of mandatory provision of Section 13(2) of the Act is palpably evident, and therefore, the conviction cannot be recorded against the respondent No.1. 17. The scope of the acquittal appeal is limited and if plausible and reasonable view is taken by the trial Court, same cannot be substituted by another plausible view in appeal.

Though, the learned trial Magistrate has recorded impugned judgment and order of acquittal in favour of respondent No.1 on the ground of nonobservance of mandatory provision of Section 14 of the Act, when upon the perusal of the record, it is found that mandatory provision of Section 13(2) are not complied with by the appellant, the acquittal though recorded on the ground of nonobservance provisions of Section 14 of the Act cannot be interfered with in this appeal.

For the foregoing reasons, this appeal fails and is hereby dismissed.

Record and Proceedings, ordered to be transmitted to the Tribunal forthwith.