IMPORTANT POINT
When mandatory provision of Rule is not followed by prosecution, then Trial Court can acquit accused person.

JUDGMENT (ORAL)

J.C. Upadhyaya, J.—The petitioner-Navinchandra Himmatlal preferred this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure (Cr.P.C.) challenging the legality and validity of the judgment and order rendered by the Ld. Addl. Sessions Judge, Ahmedabad City on 18.8.2000 in Criminal Appeal No. 9/1995, whereby the Ld. Addl. Sessions Judge confirmed the judgment and order rendered by the Ld. Metropolitan Magistrate, Court No.8, Ahmedabad, on 13.12.1994 in Criminal Case No. 138/1989 whereby the petitioner was convicted for the offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (for short ‘the Act’) and sentenced to undergo rigorous imprisonment (for short ‘RI’) for six months and to pay fine of Rs.1,000, in default of payment of fine, to undergo further RI of one month.

2. The prosecution case, in nutshell, is that the respondent No. 2 Mr. H.H. Dave, Food Inspector, Ahmedabad Municipal Corporation on 18.11.1988 at 7.20 a.m., visited the shop of petitioner. Navinchandra Himmatlal and collected sample of cow-milk from the shop. When the sample was analyzed by the Public Analyst, it was opined to be not in conformity with the standards laid down under the Prevention of Food Adulteration Rules (for short ‘the Rules’) and was found to be adulterated.

2.1. After obtaining necessary sanction for the purpose of launching criminal prosecution, the respondent No. 2 Food Inspector, filed criminal complaint in the Court of the Ld. Metropolitan Magistrate, which was registered as Criminal Case No. 138/1989. Since the petitioner accused did not plead guilty and claimed to be tried, the respondent No.2 Food Inspector adduced his oral and documentary evidence. He was examined by the trial Court as PW1 at Ex. 25. One witness Nirav Kapoor was examined as PW 2 at Ex. 27 and the Peon of the Food Inspector, namely Babaji Thakore PW 3 was examined at Ex. 26. The defence examined Public Analyst Mr. Bharatbhai Desai at Ex. 29. After considering the oral and documentary evidence on record, the Ld. Metropolitan Magistrate, by virtue of the impugned judgment and order rendered on 13.12.1994, came to the conclusion that the Food Inspector proved the case beyond any reasonable doubt. There was no violation of any of the mandatory requirements laid down under the Act and the Rules. Ultimately he recorded conviction of the petitioner-accused for the offence punishable under section 16 read with Section 7 of the Act and awarded the sentence as referred above.

3. Being aggrieved and dissatisfied with the order of conviction recorded by the trial Court, the petitioner-accused preferred Criminal Appeal No. 9/1995 before the Sessions Court, Ahmedabad City. After considering evidence on record and the submissions made on behalf of both the sides, Ld. Addl. Sessions Judge, by impugned judgment and order dated 18.8.2000, dismissed the appeal preferred by the petitioner-accused and confirmed the order of conviction and sentence rendered by the Ld. Metropolitan Magistrate, Ahmedabad. This has given rise to the present revision application under section 397 read with Section 401 of the Cr.P.C.

4. I have heard the arguments of learned advocate Mr. KV Shelat for the petitioner, Ld. APP Mr. HL Jani for the respondent No. 1 State and Ld. Advocate Mr. SY Chhaya for the respondent No. 2 Food Inspector.

5. Ld. Advocate Mr. Shelat for the petitioner submitted that the mandatory requirements laid down under Rule 14 of the Rules have not been duly and fully complied with. Considering the entire evidence on record including deposition of Food Inspector, there is nothing that at the time of collecting sample of cow-milk in the sample bottles, he had cleaned those sample bottles or that the same were cleaned in his presence. It is further submitted that before collecting the sample of milk from a milk can, admittedly the milk in the can was not stirred by the Food Inspector