Kantibhai Motibhai Limbachiya vs Ganeshlal Ambalal Soni and Others

J.C. Upadhyaya, J.—Being aggrieved and dissatisfied with the impugned judgment and order rendered by the Ld. Judicial Magistrate First

Class, Navsari, [for short ''the Ld. Magistrate''] on 19/12/1996 in Criminal Case No. 4091 of 1992, the original complainant-Food Inspector Mr.

K M Limbachiya preferred this appeal u/s 378 of the Code of Criminal Procedure [for short ''Cr. P.C'']. By virtue of the impugned judgment and

order, the Ld. Magistrate was pleased to acquit the original accused Nos. 1 and 2, who are respondents Nos. 1 and 2 herein, from the charge of

commission of offence punishable u/s 16 read with Section 7 of the Prevention of Food Adulteration Act [for short ''the Act''].

The prosecution case, in nutshell, is as under:

2.1. The appellant - original complainant Food Inspector visited the shop of the accused Nos. 1 and 2 and collected sample of coriander powder

for the purpose of analysis. The sample was sent to Public Analyst and it was revealed that the sample did not conform to the standard laid down

under the Act and the Rules. After obtaining necessary sanction for the purpose of filing complaint before the trial Court, the complainant Food

Inspector launching the prosecution, the appellant-Food Inspector filed complaint in the Court of the Ld. Magistrate, which came to be registered

as Criminal Case No. 4091 of 1992. The Ld. Magistrate framed charge against the respondents-original accused Nos. 1 and 2 for the offence

punishable u/s 16 read with Section 7 of the Act, to which they did not plead guilty and claimed to be tried. Therefore, the complainant adduced

his oral and documentary evidence. After the completion of the oral evidence adduced by the prosecution, the Ld. Magistrate recorded further

statements of both the accused u/s 313 of the Cr. P.C and they denied generally all the allegations levelled against them by the prosecution and

stated that they were falsely implicated in this case. After appreciating the evidence on record and considering the submissions made on behalf of

both the sides, the Ld. Magistrate recorded acquittal of both the accused persons. Hence, the original complainant-Food Inspector preferred this

appeal challenging the order of acquittal.

Ld. Advocate Mr. Patel for the appellant submitted that the trial Court recorded the acquittal mainly on the ground that the Public Analyst did

not sign the report of analysis on the date on which the analysis was made. It is submitted that this Court in the case of State of Gujarat Vs.

Vishramdas Virumal, held that the report of the Public Analyst cannot be ignored without examining the Public Analyst as a witness either by the

Court or the accused raising the doubt about the correctness of the report only on the ground that the report is signed by the Public Analyst later

on and not on the date on which sample was analyzed. My attention was also drawn to the decision rendered in the case of Kantibhai Motibhai

Limbachiya v. Amratlal Nyalchand Shah decided by this Court on 29/12/2008 in Criminal Appeal No. 259 of 1998 and other allied appeals. Ld.

Advocate Mr. Patel, therefore, submitted that the impugned judgment and order recording the acquittal of the respondents-accused deserve to be

set aside and the matter is required to be remanded to the trial Court to consider this part of the evidence regarding correctness of the report of the

Public Analyst. Therefore, it is submitted that the appeal may be allowed and the matter be remanded.

On behalf of respondent No. 3-State, Ld. APP Mr. M.R. Mengdey supports the submissions advanced by learned advocate for the appellant.

I have considered the records and proceedings of the trial Court in the context with the submissions made on behalf of both the sides.

Considering the impugned judgment and order rendered by the Ld. Magistrate, it transpires that the acquittal came to be recorded solely on the

ground that the report of the Public Analyst is signed by the Public Analyst later on and not on the date on which the sample was analyzed. In this

connection, considering the case of Vishramdas Virumal [supra], the judgments and orders of this Court relied upon by the trial Court were

questioned in the reference made to the Division Bench and ultimately the question referred to the Division Bench of this Court was answered in

the following terms:

A report of the Public Analyst delivered u/s 13(1) of the Prevention of Food Adulteration Act, 1954 declaring on analysis of a sample of food to

be ""adulterated"" or ""misbranded"" cannot be ignored without examining the Public Analyst as a witness either by the Court or the accused raising a

doubt about the correctness of the report only on the ground that the report is signed by the Public Analyst later on and not on the date on which

sample was analyzed.

In light of the ratio laid down in Vishramdas''s case [supra], this Court in the case of K.M. Limbachiya v. A.N. Shah decided on 29/12/2008 in

Criminal Appeal No. 259 of 1998 and other allied appeals, set aside the orders of acquittal recorded by the trial Court with specific direction to

the trial Court to proceed with the original criminal case in accordance with law and decide it as expeditiously as possible by remanding the matter.

In view of the above discussions, I am of the considered opinion that correctness of the report of Public Analyst cannot be ignored without

examining the Public Analyst as a witness either by the Court or the accused. In this view of the matter, it is apparently clear that the trial Court has

committed serious error while passing the impugned judgment and order.

For the foregoing reasons, the appeal is allowed and the impugned judgment and order rendered by the Ld. Magistrate on 19/12/1996 in

Criminal Case No. 4091 of 1992 recording the acquittal of the respondents-accused for the offence punishable u/s 16 read with Section 7 of the

Act is hereby set aside and the matter is remanded to the trial Court with the direction that the trial Court shall proceed with the matter in

accordance with law and decide it as expeditiously as possible. Record and proceedings be forthwith forwarded to the trial Court.