DILIP B MODI v. RAMESHBHAI ZINABHAI AHIR & Ors.

Judicial Magistrate, First Class, Gandevi, has been set aside and the acquittal has been recorded in the impugned judgment and order.

2. The facts of the present case, briefly summarized, are that the appellant-Mr. Dilipkumar B. Modi, working as Food Inspector at Billimora, had collected sample of milk from the accused, who was a milk vendor, on 29.3.1989 at about 8.30 near Mahadevnagar and sent it for analysis to the Food & Drugs Laboratory, Vadodara. On the basis of the report made by the Food and Drugs Laboratory, Vadodara dated 5.4.89, the sample of the milk was found not as per the required norms as prescribed under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') and the rules framed thereunder. A complaint was lodged for the offence under sec. 7(1) and sec. 16 of the said Act. The learned Judicial Magistrate, First Class, Gandevi, on the basis CR.A/62919/1996 JUDGMENT of the complaint, issued summons and framed charges for the offence at Exh. 34. The accused claimed to be tried. Therefore, evidence was recorded and further statement of the accused under Sec. 313 of the Cr.P.C. was also recorded. Thereafter defence witness was also examined. On the basis of the material and evidence, the learned Judicial Magistrate, First Class, Gandevi, by his judgment and order dated

15.9.1993 recorded the conviction of the accused for the offence under sec. 7(1) of the Act and imposed imprisonment for 6 months and fine of Rs. 1,000/- as per sec. 16 of the Act.

3. The aforesaid order came to be challenged by way of Criminal appeal no. 30/93 before the Court of learned Addl. Sessions Judge, Valsad at Navsari, and the learned Judge, after hearing the learned advocates for both the sides, and on appreciation of evidence, passed the impugned judgment and order dated 21.4.1995 recording the acquittal of the accused. It is this judgment and order which has been assailed by the appellant in the present appeal on the grounds, inter alia, that the learned Addl. Sessions Judge erred in appreciating the material and evidence on record. It is contended that the learned Addl. Sessions Judge ought to have appreciated that the respondent accused had sold buffalo milk. The appellant- CR.A/62919/1996 JUDGMENT Food Inspector, after stirring it up, found it to be adulterated and thereby the society at large is affected by consuming such adulterated milk and, therefore, the benefit of doubt ought not to have been given to the accused. It is also contended that as the sample milk was given by the accused himself to the Food Inspector, the question of properly stirring it up and making it homogeneous did not arise and on the basis thereof the benefit of doubt given to the accused was not justified and therefore the acquittal recorded by the learned Addl. Sessions Judge is erroneous, improper and in fact he ought to have confirmed the order passed by the learned Judicial Magistrate, First Class, Gandevi.

4. Learned advocate Mr. Y.V. Shah for the appellant referred to the material and evidence on record including the report of the Public Analyst. Learned advocate Mr. Shah submitted that the sample of the buffalo milk was taken by the appellant Food Inspector after due intimation and the sample was given by the accused himself and therefore there was no question of not stirring it properly or not making it homogeneous. Learned advocate Mr. Shah for the appellant submitted that, as it is reflected from the impugned judgment of the learned Addl. Sessions Judge, on most of the points he CR.A/62919/1996 JUDGMENT has accepted the contentions and only on the aspect about drawing of the sample, whether it was properly stirred up and made homogeneous or not, he has given the benefit of doubt to the accused, which is erroneous. For that purpose, learned advocate Mr. Shah also referred to the details and submitted that as per the report of the Food & Drugs Laboratory, Vadodara, dated 5.4.89, produced at Exh. 24, it has been found to be adulterated and is not as per the prescribed standard. Milk fat has to be 6% whereas it has been found to be 4%. Similarly, milk solid fat has to be 9%. Instead of that it has been found to be 8.7%, which clearly suggests that it was adulterated. Learned advocate Mr. Shah submitted that once the sample was said to have been properly taken and when the sample has been given by the accused himself, this aspect of properly stirring it up or making it homogeneous would not be a relevant ground for reversing the order of conviction passed by the learned Magistrate in the trial court and thereby the learned Addl. Sessions Judge has wrongly given the benefit of doubt, recording acquittal of the accused.

5. Learned advocate Mr. Shah submitted that on other counts the findings are not justified and, therefore, the order of the learned Addl. Sessions giving the benefit of doubt to the CR.A/62919/1996 JUDGMENT accused for recording acquittal is erroneous, which is challenged in the present appeal.

6. Learned advocate Mr. Sunil Patel appearing for the respondent original accused submitted that though the learned Magistrate has recorded the conviction, in the appeal preferred by the respondent original accused before the Sessions Court, the learned Addl. Sessions Judge has recorded the acquittal giving the benefit of doubt to the accused. Therefore, he submitted that if, on appreciation of evidence, two views are possible, this court may not interfere with the order recording the acquittal. He also referred to the material and evidence on record and submitted that the sample was not taken by the appellant-Food Inspector himself by properly stirring it up and it is admitted that he had asked the accused to give the sample, which would again imply that the accused as a layman may not have taken necessary precaution or care which is required for the purpose of collecting sample. Therefore, in fact, it was obligatory for the appellant Food Inspector to draw the sample properly as required under the provisions of law, that is, the Act and the rules framed thereunder. He also referred to Sec. 10 and the rules which provide about taking sample. Therefore, it was submitted that CR.A/62919/1996 JUDGMENT if the sample itself has not been collected properly and made it homogeneous before it was collected, the report is likely to be misleading. Learned advocate Mr. Patel has also submitted that in any event the report does not suggest about adulteration by any other material or anything else except that the fat content is less. It is not as per the standard prescribed, but as per the report also, there is no further admission of adulteration and therefore the impugned judgment and order passed by the learned Addl. Sessions Judge recording the acquittal is just and proper.

7. He also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Food Inspector, Municipal Corporation Baroda, v. Madanlal Ramlal Sharma and anr., reported in AIR 1983 SC 176 and also the judgment of this Court in the case of Vasantray J. Khamkati v. State of Gujarat & anr. reported in 2003 (4) GLR 3013 and emphasized the observations made that, if there is no evidence to indicate that the milk was stirred at the time of collecting sample, it cannot be said that the sample collected represented the full quantity of the milk and, therefore, the mandatory rule has been violated and the accused is entitled for acquittal. CR.A/62919/1996 JUDGMENT

8. Learned APP Mr. K.T. Dave, referring to the judgment relied upon by learned advocate Mr. Sunil Patel in the case of Vasantray J. Khamkati (supra), submitted that the facts are different. However, he conceded that in the facts of the present case, it is admitted that the sample of the milk was given by the vendor himself, i.e., the accused, and it has not been collected by the appellant-Food Inspector. He also stated that the report suggested that the fat content is not conforming to the standard prescribed but there is no other adulteration.

9. In view of the rival submissions and also on appreciation and scrutiny of the evidence, which has been referred to by both the sides, it is required to be considered as to whether it would call for any interference with the impugned judgment and order recording acquittal passed by the learned Addl. Sessions Judge reversing the judgment and order of conviction passed by the learned Judicila Magistrate, First Class, Gandevi, in Criminal Case No. 1854/89 dated 15.9.1993.

10. For appreciating the evidence, a few undisputed facts are required to be noted. The main thrust of the argument of CR.A/62919/1996 JUDGMENT learned advocate Mr. Shah for the appellant is that on most of the points the learned Addl. Sessions Judge has accepted the contentions except on the aspect of collection of sample that it was not made homogeneous at the time of collecting it and, therefore, the benefit of doubt is given to the accused, which is erroneous. He has emphasized that milk vendor himself had given the sample and therefore there is no question of not stirring it properly and report of the Public Analyst at Exh. 24 clearly suggests that it was adulterated as the fat content was not as per the standard prescribed under the law.

11. However, Sec. 10 of the Act, which refers to the powers of the Food Inspector, clearly suggests that he has been authorized to take sample of an article of food from any person and it is the duty and obligation cast upon the Food Inspector to collect the sample as prescribed by the law, that is, in compliance with the mandatory requirement of the Act as well as the Rules. In the facts of the present case, admittedly, the sample was given by the vendor. Therefore, the vendor as a layman may not have stirred it properly for the purpose of sample and the appellant-Food Inspector as a competent officer and aware about the provisions of law was obliged to collect the sample properly after stirring it and CR.A/62919/1996 JUDGMENT making it homogeneous. It is this aspect which will go to the root of the matter inasmuch as, if the sample itself was not properly collected, it could have been not properly reflected in the report of the Public Analyst at Exh. 24.

12. Reliance placed by learned advocate advocate Mr. Patel on the judgment of this court in the case of Vasantray J. Khamkati (supra) is also required to be appreciated. In that case also, it was regarding collection of sample of milk and this court recorded that there is no evidence to indicate that the milk was stirred at the time of taking the sample. It is required to be appreciated that in that case before this court the sample was collected by the Food Inspector himself and yet it was found that it was not stirred properly and made homogeneous and therefore the findings of the court below were reversed. It is also required to be appreciated that before collecting the sample, it has to be made homogeneous and thorough mixing of the milk with the proper instrument would make it a representative sample of the entire quantity and as it has not been done in the facts of the present case, the impugned judgment and order recording acquittal giving the benefit of doubt by the learned Addl. Sessions Judge cannot be said to be erroneous or perverse. CR.A/62919/1996 JUDGMENT

13. Therefore, on appreciation and scrutiny of the evidence on record, it is evident that the view taken by the learned Addl. Sessions Judge recording the acquittal is not perverse and this court is in agreement with the ultimate conclusion arrived at and recorded by the learned Addl. Sessions Judge. Therefore, it may not be further necessary to elaborate on this aspect and scrutinize the evidence.

14. Moreover, it is also well-settled that if two views are possible on the basis of the evidence and the view taken by the court below is possible and reasonable, then this court would not interfere with the acquittal. It is required to be appreciated that in the facts of the present case there are two different views expressed by the courts below inasmuch as the trial court, i.e., the learned Judicial Magistrate, First Class, Gandevi, has recorded conviction of the accused and thereafter the accused preferred appeal being Misc. Criminal Application No. 30/93 before the court of the learned Addl. Sessions Judge, Valsad at Navsari, who has recorded acquittal giving the benefit of doubt to the accused. Therefore, there are 2 views already expressed on appreciation of the evidence and this itself would suggest about the possibility of two CR.A/62919/1996 JUDGMENT views.

15. Therefore, as observed by the Hon'ble Apex Court in the case of Shingara Singh v. State of Haryana & Anr. reported in AIR 2004 SC 124, if two views are possible on the basis of the evidence and the view taken by the trial court is possible and reasonable, then this court would not interfere with the acquittal.

16. The said view has also been subsequently reiterated and confirmed by the Hon'ble Apex Court. The Hon'ble Apex Court in the case of State of Goa v. Sanjay Thakran & anr., reported in (2007) 3 SCC 755 has observed, referring to the scope of interference by the appellate court, that the appellate court can review the evidence and interfere with the order of acquittal only if the approach of the lower court is vitiated by some manifest illegality or the decision is perverse and the court has committed a manifest error of law and ignored the material evidence on record. In the facts of the present case, it cannot be said that there is such an error in recording the acquittal by the learned Addl. Sessions Judge.

17. Therefore, in view of the discussion made hereinabove, the impugned judgment and order passed by the learned Addl. Sessions Judge is possible, reasonable and on appreciation of evidence, this court is of the opinion that the conclusion arrived at CR.A/62919/1996 JUDGMENT is just and proper and is not inclined to interfere with the acquittal recorded by the learned Addl. Sessions Judge. Therefore, the impugned judgment and order dated 21.4.1995 passed in Criminal Appeal No. 30/93 by the learned Addl. Sessions Judge, Valsad at Navsari, recording the acquittal, giving the benefit of doubt, is hereby confirmed and the present appeal is required to be dismissed. In the result, the present appeal stands dismissed. (hn) (Rajesh H. Shukla, J.)