Navnitlal Vadilal Shah vs State of Gujarat and Another

J.C. Upadhyaya, J.—The challenge in this Criminal Revision Application preferred u/s 397 read with Section 401 of the Code of Criminal Procedure (''Cr.P.C.'', for short) is to the judgment and order rendered by learned Additional Sessions Judge, Bharuch in Criminal Appeal No. 3 of 1999 on dated 13.9.2002 whereby the order of conviction and sentence recorded by learned Judicial Magistrate First Class, Bharuch (''JMFC, Bharuch'', for short) on 23.3.1999 in Criminal Case No. 19566 of 1997 came to be confirmed. Learned JMFC, Bharuch by his judgment and order dated 23.3.1 999 recorded conviction of in all six accused persons wherein the petitioner was accused No. 1 for the offence punishable u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (''Act'', for short) and so far as petitioner accused No. 1 is concerned, he was sentenced to undergo S.I for one year and fine of Rs. 5000/- and in default, S.I for two months for the aforesaid offence. Original accused Nos. 3,4 and 6 were also awarded the identical sentence whereas the original accused No. 2 and 5 being Private Limited Companies, were awarded the sentence of only fine. All the accused persons, including the present petitioner accused No. 1 challenged their conviction before Sessions Court, Bharuch by preferring two different criminal appeals u/s 374 of the Cr.P.C. The petitioner preferred Criminal Appeal No. 3 of 1999. By judgment and order dated 30.9.2002, Sessions Court, Bharuch dismissed both the appeals. This has given rise to the present Criminal Revision Application preferred by original accused No. 1 Navnitlal Vadilal Shah.

The prosecution case in nutshell was that the respondent No. 2 Mr. N.A. Shah the Food Inspector (''FI'', for short) visited the shop of the petitioner at 3 pm on 4.6.1996 and collected the sample of 375 grams of Cotton Seed Oil from the tight packed tin of oil. At the time of search and seizure, it was revealed that the petitioner had purchased the oil tins from accused No. 2 Umada Proteins Pvt. Ltd. and accused Nos. 3 and 4 were its Directors. It was further revealed that the refined cottonseed oil came to be manufactured by original accused No. 5 Govardhan Oil Mill (P) Ltd. At the relevant time original accused No. 6 Manishbhai Teli happened to be its owner. After performing due procedure prescribed under the Act the sample was collected and packed, and ultimately, the sample was found to be adulterated, respondent No. 2 FI filed a criminal complaint against the six accused persons including the petitioner - vendor in the Court of learned JMFC, Bharuch. Learned JMFC, Bharuch after recording the evidence in this case, recorded the conviction of all the accused persons including the petitioner, and ultimately, conviction order came to be confirmed by the Sessions Court.

Learned advocate Mr. Pardiwala for Mr. K.B. Anandjiwala for the petitioner submitted that both the subordinate Courts lost sight of an important question of law contained under Sub-section 2 of Section 19 of the Act. That even admittedly and as per the case of the prosecution, FI has collected the sample from the tight packed oil tin bearing the label of its manufacturer and a zerox bill was also seized. It is submitted that considering the Sub-section 2 of Section 19 of the Act and the evidence on record, the ingredients contained in the provision have been duly complied with and in that case, the trial Court and the first Appellate Court should have observed that the petitioner - vendor shall not be deemed to have committed an offence under the Act.

3.1 Reliance was placed upon the case of State of Gujarat v. Bipinkumar Vadilal Shah and Ors. decided by this Court on 25.2.2000 in Criminal Appeal No. 683 of 1991. Therefore, it is submitted that the revision petition may be allowed.

Per contra, learned Additional Public Prosecutor, Mr. Kodekar for the respondent submitted that there is a concurrent finding of two subordinate Courts to the effect that the zerox bill is not proved and cannot be looked into as an evidence. My attention was also drawn to some of the observations made by Sessions Judge, Bharuch in the impugned judgment that even if the zerox bill Mark ''A'' is considered, the description of oil mentioned in the bill does not tally with the label pasted on the tin. It is further submitted that the label pasted on the tin does not contain any express warranty. Therefore, it is submitted that the trial Court rightly recorded the conviction of the petitioner and the Sessions Judge rightly confirmed the same and the revision petition deserves dismissal.

I have examined the record and proceedings in context with the submissions made by the rival sides.

Examining the record of the case, it clearly transpires that the FI collected sample from the tight packed tin containing refined cottonseed oil. If the panchnama, Exh.34, is considered in this respect, the situation will become more clear and in the panchnama, it is clearly stated that the sample was collected from the tight packed tin containing a label �Vikram Brand� 15 Kg.weight, Page No. 162, Manufacturing date June, 1996 and as Manufacturer �Govardhan Oil Mill Pvt. Ltd., Kadi� was mentioned. In the panchnama, it is further mentioned that the FI inquired the petitioner about the merchant from whom he purchased the oil, and in the panchnama, it is clearly stated that the reply given was that the same was purchased from Umada Proteins Pvt. Ltd. - original accused No. 2. Even the zerox bill No. 3052 dated 28.6.1996 came to be seized in support of the above statement made by the petitioner before the FI.

6.1 It is further pertinent to note that relying upon the above aspect of the matter, the sanction was accorded by the Local Health Authority to launch prosecution against all the six accused persons, including the Vendor, Distributing Company and Manufacturing Company and their partners, and ultimately, even the respondent FI lodged complaint before the trial Court against all these six accused persons.

6.2 The above discussions would suggest that not only the sample was collected from the tight packed tin containing the refined cottonseed oil, but even on the basis of the information by the petitioner and upon the seizure of the zerox copy of bill and upon perusal of the label pasted on the tin, the prosecution was launched against all the six accused persons. The trial Court and the first Appellate Court only observed that since the bill was a zerox copy and was not original, no reliance can be placed upon the bill. I am of the opinion that both the subordinate Courts erred in arriving at such finding and erred in not properly appreciating the evidence on record. As stated above, the purchase of the tight packed oil tins from the distributor is not merely the defence of the petitioner, but it is the case of the prosecution.

Examining such situation emerging from the evidence on record and considering Bipinkumar Vadilal''s case (supra), it clearly transpires that in the said case sample was collected from sealed and packed packet of chilly powder. The vendor was given benefit of the provisions contained under Sub-section 2 of Section 19 of the Act. Sub-section 2 of Section 19 of the Act runs as under:

19(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves-

(a) that be purchased the article of food-

(i) in a case where a license is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer;

(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and

(b) that the article of food while in his possession was properly stored and that the sold it in the same state as he purchased it.

7.1 In the aforesaid ruling, reference was also made to Section 14 of the Act and considering the proviso attached to Section 14, it is clearly mentioned that bill, cash memorandum or invoice in respect of sale of any article of food shall be deemed to be a warranty given by such a manufacturer or distributor. Various rulings delivered by different High Courts, including this Court were relied upon and discussed, and ultimately, it was observed that the accused - vendor in that case has proved to the satisfaction on principle of Preponderance of Probability that he purchased the goods from the accused No. 2 under the bill and he gave a sample of chilly powder from that very sealed packet of chilly powder, and ultimately, he was given benefit of the provisions contained under Sub-section 19(2) of the Act.

Considering the facts and situation emerged from the evidence on record in the instant case and considering the panchnama, evidence of FI and the submissions made on behalf of both the sides, I am of the opinion that the ration laid down in Bipikumar''s case (Supra) fully applies to the facts and circumstances in the instant case.

In view of the above discussions, I am of the opinion that the trial Court erred in recording the conviction of the petitioner - original accused No. 1 for the offence for which he came to be charged and the Sessions Court, Bharuch erred in confirming his conviction and sentence. The criminal revision petition, therefore, merits acceptance.

For the foregoing reasons, the criminal revision application is allowed. The impugned judgment and order rendered by learned Additional Sessions Judge, Bharuch on 30.9.2002 in Criminal Appeal No. 3 of 1999 whereby the impugned judgment and order rendered by learned JMFC, Bharuch on 23.3.1999 in Criminal Case No. 19566 of 1997 came to be confirmed wherein the petitioner accused No. 1 was convicted for the offence punishable u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 and was awarded sentenced to undergo S.I for one year and to pay fine of Rs. 5000/- and in default to further undergo S.I for two months are hereby set-aside. Petitioner - accused No. 1 is acquitted of all the charges levelled against him. Fine, if paid, be refunded to him. His bail bond shall stand cancelled. Rule is made absolute.