JUDGMENT :

1. Heard learned APP Ms. Jirga Jhaveri for the appellant – State and learned advocate Mr. Gnanesh G. Bhatt for Mr. Gaurang Bhatt, learned advocate for the respondent No. 1 at length.

2. The State has filed this acquittal appeal challenging the judgment and order dated 29.09.2009 passed by the learned Chief Judicial Magistrate, Surendranagar in the Criminal Case No. 54 of 2003 for the offences punishable under Sections 3 read with Section 7 of the Essential Commodities Act, 1955 for breach of provisions of para (16) of Drugs Price Control Order, 1955 read

3. Facts in short giving rise to the present appeal are as under:-

3.1 According to the complainant Drug Inspector Shri G.C. Patel, it is the case of prosecution that respondent-accused Rafiq Samsuddinbhai Kabani is residing at A/1, Salimnagar Society, B/h. Gitanagar Society, Deshal Bhagtani Vav, 80 feet Road, Surendragar and having his medical store in Kothari Complex, Surendranagar. According to the complainant, on 24.06.1999, one Prakashbhai Raval, resident of Surendranagar visited office of Assistant Commissioner, Food and Drug Control Administration, Surendranagar and lodged a complaint against respondent-accused for charging higher rate of medicines and produced copy of Case Memo bearing No.1443 dated 23.06.1999 and accordingly, statement of said Prakashbhai Raval was recorded by complainant, Drug Inspector, wherein he has agreed to accept rates as stated in bill. Thereafter, on 08.07.1999, notice was issued to respondent-accused asking for explanation, wherein by letter dated 13.09.1999 submitted his reply and stated the fact that due to calculation mistake, through oversight this thing has happened and prayed for mercy. It is further case of the prosecution that thereafter, by letter dated 30.09.1999, report was made to Commissioner, Food and Drug Control Admn. Gandhinagar, wherein by letter dated 17.06.2000, Office of the Commissioner, Food and Drug Control Admn. Gandhinagar directed to take appropriate steps against respondent-accused. Thereafter, on the basis of direction issued by the Office of Commissioner, Food and Drug Control Admn. Gandhinagar, statement of Shri Prashant P. Sheth of M/s. Harshit Medical Agency, Surendranagar, partner Bharatbhai J. Patel of M/s. Patel Drug House, Surendranagar, owner Suryakant Himmatlal Shah of M/s. Champshi Sukhlal & Sons, who sold medicines to respondentaccused were recorded on 13.02.2001. On the basis of bill issued by them, it appears that Actifed Plus Syrup, Bectidox Tablet and Calpol Tablets were admissible for 6% ST AND 1% octroi and DOM DT Tablets was admissible for 7% ST and 1% octroi, inspite of that, accused has demanded and accepted rate more than prescribed under the Act, and thereby, committed breach of provisions of para (16) of Drugs Price Control Order, 1955, which is punishable under Section 3 read with Section 7 of Essential Commodities Act, 1955 and accordingly, charge-sheet was filed before the Trial Court.

3.2 On receipt of complaint, notices were issued to the respondent. The respondent had appeared before the Court and denied the charges framed against them and claimed to be tried.

3.3 Learned Magistrate, after appreciating necessary evidence laid down by prosecution was pleased to acquit the respondent by his judgment and order of acquittal dated 29.09.2009 for the alleged breach of provision of para (16) of Drug Price Control Order, 1955, which is punishable under Section 3 read with Section 7 of Essential Commodities Act, 1955, and therefore, State of Gujarat has preferred present appeal under Section 378(4) of the Code of Criminal Procedure, 1973 against the order of acquittal.

4. Learned APP Ms. Jirga Jhaveri for the State has also taken different grounds including the ground in nut-shell that the judgment and order passed by the learned Magistrate is contrary to law. Further, learned Magistrate did not consider the provisions of para (16) of Drug Price Control Order, 1955, which is punishable un