State of Gujarat vs Husenali Najarali Huda and Others

S.R. Brahmbhatt, J.—The appellant State of Gujarat has preferred this appeal u/s 378 of Criminal Procedure Code against the order of acquittal passed by learned JMFC, Sanand passed in Criminal Case No. 525 of 1986 on 20/10/2000.

The facts in brief leading to filing of this appeal deserve to be set out as under.

It was the case of the original complainant that the respondent No. 1 has a shop dealing in groundnut oil, vanaspati etc. The complainant visited the shop along with panchas on 21/9/1985 at 14.30 hours. After notifying respondent No. 1 his intention to collect sample of groundnut oil, he purchased 450 gram groundnut oil (Family Brand) sample and as per the provision of law applied seal etc. after packing the same. The accused No. 2 was the distributor. On production of bill 11/2 dated 15/9/1982 it could be ascertained that accused No. 2 is the same distributor who supplied the oil to accused No. 1. Accused No. 3 is producer of the said oil and they are producing family brand groundnut oil at Sanand.

The complaint was lodged on 31/5/1986. Charge was framed and after recording of plea of not guilty, trail was commenced. The Court framed points of determination and ultimately came to the conclusion that there was breach of mandatory provision of Rule 4(4) of The Prevention of Food Adulteration Rules 1955. Accordingly the Court has held that acquittal was warranted as Section 20 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as ''PFAA'' for brevity) had not been complied with in as much as the competent authority has to accord its sanction after application of mind and at that time the validity of the report which is made basis for according sanction is also assuming importance. In the instant case the court has recorded that the Public Analyst Shri P.M. Patel who examined sample on 18/10/1985 and as the notification concerned is placed on record indicating that said Shri P.M. Patel had been appointed as public Analyst from 6/3/1984. The subsequent notification dated 6/9/1985 by which Shri I.M. Desai came to be appointed for entire State and earlier appointments of Public Analysts have been rescinded. In view of that the public analyst who has done the examination on 18/10/1985 namely Shri P.M. Patel would not have the authority to examine the same and as the report of said Shri Patel could not have been made basis for issuance of sanction, and as the sanctioning authority did not apply its mind the prosecution case is stated to be vitiated and the acquittal was pronounced vide impugned order dated 20/10/2000.

Shri D.K. Modi, learned Counsel appearing for the respondents submitted that the reasonings adopted by the court cannot be found to be in any way faulty as the concerned documents, namely report of the public analyst and notification indicating the date of appointment, and subsequent notification indicating appointment of Shri I.M. Desai and the factum of revoking earlier notification are on record; and on that basis it can well be said that at the given point of time the same was examined by the public analyst who had no authority to examine the sample. These factors have not been adverted to sanctioning authority and that has vitiated entire prosecution which includes lodging of complaint. Therefore, the order impugned cannot be said to be in any way perverse calling for interference u/s 378 of Cr.P.C.

Shri Maulik Nanavaty learned APP submitted that this appeal is u/s 378 of Cr.P.C., and the accused have a right to establish their case based upon the documents available, but for the reasons that are not adverted to by the court for justifying the order of acquittal.

Shri Modi in support of his submissions has relied upon decision of this Court in case of Clemant Chhotalal Cristian Vs. Parshottam Savjibhai Parmar and Another, another decision of this Court in case of State of Gujarat Vs. Prajapati Amratlal Natvarlal, and another decision of the Apex Court in case of State of Orissa v. Rabindra Sahu reported in 2006 (1) FAC 200 and submitted that the certificate issued by the Central Food Laboratory also go to show that the provision of Rule 4(4) of the Rules have not been complied with. Rule 4 clearly provides that concerned authority is not to rest contended only on account of examining the seals and comparing with them with the specimen impression of the seal, but has to tally the same in respect of both the sample container as well as outer cover. In the instant case, relying upon the certificate dated 17/7/1986 Shri Modi submitted that the language employed is that the seal of sample container were intact. Seal of outer cover on sample is intact and tallied with specimen impression of seal annexed with copy of memorandum forwarded separately. This language clearly indicate that concerned authority did not compare and tally seal of the original container which is a mandatory provision made under Rule 4(4) of the Rules.

This Court way back in 1992 has decided this issue in Clemant Chhotalal Cristian Vs. Parshottam Savjibhai Parmar and Another, which has been reproduced by this Court in State of Gujarat Vs. Prajapati Amratlal Natvarlal, that provision of law which relate to it and which confer even the smallest safeguard on the accused must be construed strictly and not liberally. Therefore non comparison of the seal as stated in the judgment has affected evidentiary value of the certificate issued by the Director, Central Food Laboratory and thus the conviction based upon it cannot be sustained.

Shri Nanavaty, learned APP could not controvert this proposition of fact & law both.

This Court heard learned Counsels for the parties, perused the record & proceedings and paper book containing relevant documents.

This Court is of the view that the appeal deserves to be dismissed not only on the ground of lack of valid sanction or vitiation of sanction, but also on the grounds which have been canvassed at the Bar in respect of breach of Rule 4(4) of the Rules. Rule 4(4) is required to be set out as under:

Analysis of food sample:

(1) xxx xxx xxx xxx

(2) xxx xxx xxx xxx

(3) xxx xxx xxx xxx

On receipt of a package containing a sample for analysis, the Director or an Officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.

In view of this, it becomes clear that comparison of both the containers seal are required to be made. The certificate contains the following:

The seals on sample container were intact. The seals on outer cover of sample parcel were also intact and tallied with the specimen impression of seal enclosed with copy of memorandum forwarded separately.

Thus the language employed by Director of CFL clearly leaves room for valid inference that the seals on inner container were not tallied and compared. In other words it can well be said that their exist lack of positive evidence on the part of the prosecution to show that the Director of CFL did comply with provision of Rule 4(4) of the Rules and compared both containers and seals thereof with specimen impression receipt. In view of this, this Court is of the view that the appeal is required to be dismissed as the acquittal order cannot be said to be in any case perverse, calling for any interference. Appeal is therefore dismissed. Bailable warrants issued against the respondents/original accused shall stand cancelled.