NARESH NARUBHA RATHOD vs STATE OF GUJARAT & ANR.

The present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 is filed by the applicant challenging the judgment and order of conviction and sentence passed by the learned JMFC, Rajkot in Criminal Case No.292 of 1995, whereby the applicant-original accused in sentenced to undergo 3 months simple imprisonment and fine of Rs.1,000/- is imposed or to undergo 1

month simple imprisonment in default as well as the judgment and order of the learned Additional Sessions Court, Rajkot dated 02.11.2004 in Criminal Appeal No.9 of 2003 whereby the appeal preferred by the applicant has been dismissed.

The applicant-original accused was a dealer in food articles. The Food Inspector collected samples of ''Chana Dal'' on 09.01.1995 from his shop. The same was sent for analysis to the laboratory. The report reveals that the sample is ''misbranded'' as there was no batch no. or any label containing batch no. over any of the packets that were collected during the visit. Therefore, after obtaining consent from the Health Authority, a complaint was filed by the Food Inspector initially against two accused, i.e. applicant-original accused and his father before the learned Magistrate for the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act for the breach of Rule 32(e) and 32(f) of the Rules. The trial commenced and the charge was framed below Exh.65. Both the accused did not plead guilty and therefore, the trial commenced. The prosecution examined following witnesses:

(i) K.N. Jadav, Food Inspector- Exh. 90,

(ii) Naresh Ranabhai Gandhi, Panch witness-Exh.92

The documentary evidence has also been produced by the prosecution including the report of Public Analyst. The learned Magistrate, vide its judgment and order dated 16.04.2003, has acquitted co-accused-Narubha Bahadursinh Rathod whereas present accused has been convicted for the breach of Section 16(1)(a)(i) of the Act and for breach of Rule 32(e) of the Rules and the sentence is imposed. After elaborately discussing the evidence, the learned Magistrate

has come to the conclusion that the samples of ''Chana Dal'' were collected in presence of applicant. No discrepancy is found from the oral as well as documentary evidence about collection of samples. The learned Magistrate has believed the report of the laboratory that it is misbranded. The competent court has granted consent to prosecute and the prosecution has been able to prove the case beyond reasonable doubt against the applicant-original accused.

The learned Sessions Court has also considered all the contentions raised by the applicant-original accused in the appeal and rejected the appeal by assigning detailed reasons.

Having heard learned advocates for the parties, this Court finds that there is no merit in this revision application. There are concurrent findings arrived at by both the Courts that there is violation of Rule 32(e) of the Rules and the report of the Public Analyst is clear that the samples do not contain either the batch no. or the code no. and that there is no label on the samples that are collected. The Courts below have discussed the evidence in detail and found that the samples have been collected properly and panchnama below Exh.19 has been prepared by following proper procedure. The applicant-original accused could not point out violation of any procedure by the Food Inspector while collecting the samples and/or sending the samples to the Public Analyst. The applicant has also not doubted the veracity of the report of the Public Analyst. Thus, the charge is proved beyond reasonable doubt and there is no merit in this revision application.

The principle contention raised by the applicant-original accused that the provision under Rule 32(e) of the Rules is

declared ultra vires by the Hon''ble Supreme Court in case of Dwarka Nath & Anr. v/s. Municipal Corporation of Delhi, reported in (1971) 2 SCC 314. The said judgment was rendered when earlier provision was in force. After the said judgment, the provision of Rule 32 has been amended by the Central Government vide Notification No.422(E) dated 29.04.1987 (with effect from 29.04.1989). The said amended rules reads as under:

"(e) A distinctive "batch no." or "lot no." or "code no.", either in numerical or alphabets or in combination, representing the batch no." or "lot no." or "code no." being preceded by the words ''Batch No.'' or ''Batch or ''Lot No.'' or any distinguishing prefix. Provided, that in the case of canned food, the "batch no." may be given at the bottom or on the lead of the container but the words ''batch no.'', given at the bottom or on the lead, shall appear on the body of the container."

Thus, the said judgment will not apply after the amendment to the said rule. Moreover, Section 23 of the Act empowers the Central Government to make rules with regard to packing and labelling of any article of food. Thus, the said rule is perfectly within the scope of rule-making power of the Central Government. Under the circumstances, there is no merit even in this contention.

In view of the above, the Court does not find any merit in the revision application, and accordingly, the same is dismissed. Rule discharged. Bail bond stands forfeited. The applicant-original accused shall surrender to undergo the sentence within a period of four weeks from today.