Gujarat High Court
B C Kathiria – Food Inspector vs State Of Gujarat on 3 July, 2026
NEUTRAL CITATION
R/CR.A/792/2012 JUDGMENT DATED: 03/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 792 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
୰
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B C KATHIRIA - FOOD INSPECTOR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MAHAVIR JEBALIYA FOR MR ASHISH M DAGLI(2203) for the
Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 3
MR DK MODI(1317) for the Opponent(s)/Respondent(s) No. 5,6,7
MR MD MODI(1318) for the Opponent(s)/Respondent(s) No. 2,4,5,6,7
MR ADITYA JADEJA ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 03/07/2026
JUDGMENT
CHALLENGE:
1. The appellant-original complainant has preferred this
appeal under Section 378 of the Code of Criminal Procedure,
1973 against the judgment and order dated 31.12.2011Page 1 of 30
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passed by the learned Chief Judicial Magistrate, Junagadh
(hereinafter be referred to as “the trial Court”) in Criminal
Case No. 1262 of 1999 whereby the trial Court has acquitted
the respondents accused from the offence punishable under
Sections 2(ix)(k) r/w the provisions of Rule 32(f), Sections 7(1)
(2) and Section 16 of the Prevention of Food Adulteration Act
and Rules framed thereunder.
FACTS OF THE CASE:
2. The facts giving rise to present appeal are that during the
course of his official duty, on 05.08.1998 at about 9:30 a.m.,
the Food Inspector visited M/s. Vimal Agency, Mandvi Chowk,
Junagadh and during the inspection, he purchased a sample of
Balaji Wafers (40 grams), which was kept for sale, for the
purpose of analysis. Upon analysis, the sample was declared
misbranded. It is alleged that the accused sold the said
misbranded food article, which falls within the definition of
“misbranded” under Section 2(ix)(k) of the Prevention of Food
Adulteration Act and violated Rule 32(f). The accused are,
therefore, alleged to have committed offences punishable
under Sections 7(1),(2) and 16 of the said Act.
2.1 After the complaint was filed, summons were issued to
the accused. The accused appeared before the trial Court
through their learned advocate. Copies of the police papers
were supplied to them, and their pleas were recorded at
Exhibits 24 to 29.
2.2 To prove its case the prosecution has produced evidences
which read as under:-
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Sr. Particulars Exh.No.
No.
1 Deposition of the complainant, B.C. Kathiriya. 43
2 Certified copy of the Gazette Notification. 44
3 Affidavit regarding ownership/proprietorship of the 45
firm.
4 Xerox copy of the invoice/bill of Katariya Enterprise. 46
5 Form No. 6. 47
6 Receipt for payment made to the vendor. 48
7 Label Form as prescribed under Rule 15. 49
8 Original Panchnama. 50
9 Copy of Memorandum in Form No. 7. 51
10 S.T. Parcel freight receipt. 52
11 Copy of the Seal Impression. 53
12 Registered A.D. acknowledgment receipt. 54
13 Receipt showing deposit of two parts of the sample with 55
the Local Health Authority (LHA).
14 Receipt acknowledging receipt of the sample by the 56
Public Analyst, Vadodara.
15 Form No. 6. 57
16 Office copy of the forwarding letter. 58
17 Covering letter/list. 59
18 Public Analyst’s Report and Details of Sample. 60, 61
19 Bill, list, and document regarding ownership. 62, 63,
64
20 Form No. 6 regarding collection of sample and covering 65, 66
letter/list.
21 Registered A.D. acknowledgment receipt. 67
22 Letter/list of Balaji Pvt. Ltd. 68
23 Proof of ownership. 69
24 Office copy of the sanction order. 70
25 Memorandum regarding grant of sanction. 71
26 Covering letter forwarding the sanction for filing the 72
complaint.
27 Sanction order. 73
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28 Office copy of the intimation sent to the Local Health 74
Authority, Junagadh.
29 Office copies of notices. 75, 76
30 Letter dated 16-04-1999 issued by the Local Health 77
Authority, Junagadh.
31 Registered A.D. acknowledgment slips. 78 to 83
32 Deposition of Panch Witness Pareshbhai Rajnikant 117
Shah.
33 Deposition of Witness Vadiraj R. Narendra. 119
34 Copy of the Seal Impression Register/Entry. 120
35 Original slip of the Local Health Authority (LHA). 121
36 Public Analyst’s Certificate. 122
37 Closing Pursis filed by the complainant. 125
2.3 After closure of the evidence, the statements of the
accused under section 313 of the Criminal Procedure Code,
1973 have been recorded wherein the accused denied the
allegations and claimed to be tried. Accordingly, the
prosecution proceeded with the trial.
2.4 After hearing both sides and considering the evidence on
records, the trial Court by impugned judgment and order has
acquitted the accused from all the charges levelled against
them.
2.5 Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal, the appellant original
complainant has preferred present appeal.
3. Heard Mr. Mahavir Jebaliya, learned counsel appearing
for Mr. Ashish M. Dagli, learned counsel for the appellant, Mr.
Modi, learned counsel for respondent Nos. 2, 4, 5, 6 and 7 and
Mr. Aditya Jadeja, learned APP for the respondent No.1. In
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view of order dated 12.07.2022 appeal qua respondent No.3 is
abated.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
4. Learned counsel for the appellant has submitted that the
learned Trial Court, despite the prosecution having proved its
case, erred in passing the order of acquittal. Learned counsel
for the appellant has submitted that the prosecution
established that the sample was purchased and sealed after
strictly following the mandatory procedure prescribed under
law as there was no procedural lapse in the collection or
dispatch of the sample, the learned Trial Court ought not to
have acquitted the accused.
4.1 Learned counsel for the appellant has submitted that the
learned Trial Court has committed a serious error in
discarding the prosecution case merely because the panch
witnesses did not fully support it and significantly, the panch
witnesses did not dispute their signatures on the panchnama,
which corroborates the procedure adopted by the Food
Inspector.
4.2 Learned counsel for the appellant has submitted that, in
his statement under Section 313 of the Code of Criminal
Procedure, the accused merely denied the allegations and did
not examine any defence witness. Further, in view of the
evidence establishing that the sample was misbranded and
that all procedural safeguards were complied with, the order
of acquittal is unsustainable.
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4.3 Learned counsel for the appellant has submitted that the
learned Trial Court has erred in law in holding that there was
a breach of Section 2(ix)(k) of the Prevention of Food
Adulteration Act and Rule 22 of the Prevention of Food
Adulteration Rules.
4.4 Learned counsel for the appellant has submitted that the
complainant purchased 15 packets of Balaji Potato Wafers for
Rs. 90/- from the accused in the presence of panch witnesses.
The purchase receipt and evidence at Exh. 48 establish that
the sale was completed for valuable consideration. Learned
counsel for the appellant has submitted that the sample was
thereafter duly sealed and forwarded by the Food Inspector,
Shri B.C. Kathiria, bearing the signatures of the accused and
the official seal.
4.5 Learned counsel for the appellant has submitted that the
learned Trial Court further erred in holding that Rule 22 was
violated on the ground that each part of the sample weighed
only 200 grams instead of 500 grams. In fact, the evidence
shows that 15 packets of 40 grams each were purchased and
divided into three parts consisting of five packets (200 grams)
each. The Public Analyst accepted the sample and analysed it
without raising any objection regarding insufficiency of
quantity. Therefore, the finding of violation of Rule 22 is
based on a misreading of the evidence and is legally
unsustainable.
4.6 Learned counsel for the appellant has submitted that the
sample divided into three parts of 200 grams each was found
sufficient and fit for analysis by the Public Analyst.
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4.7 Learned counsel for the appellant has submitted that the
learned Trial Court, while passing the impugned judgment
and order, failed to properly appreciate the evidence adduced
by the appellant-original complainant before the Trial Court.
It is further submitted that the learned Trial Court passed the
impugned judgment and order without duly considering the
relevant provisions of law as well as the facts and
circumstances of the case.
4.8 Learned counsel for the appellant has submitted that the
wafer packets, namely Balaji Wafers, were manufactured by
respondent No. 7 and supplied through respondent No. 3 (the
distributor) to respondent No. 2 (the retailer). The
complainant visited the retail shop of respondent No. 2 and,
during inspection, found that the Balaji Wafers packets, each
weighing 40 grams, did not bear the date of manufacture,
batch number, or expiry date. Consequently, the said packets
were found to be misbranded. Therefore, the complainant
lodged a complaint before the learned Magistrate under the
aforesaid provisions of the Act and the Rules framed
thereunder.
4.9 Learned counsel for the appellant has submitted that the
report of the Food Analyst clearly opined that the food article
in question was misbranded and the said fact was duly proved
before the learned Trial Court beyond reasonable doubt.
However, the learned Trial Court failed to take this material
aspect into consideration and proceeded to pass the impugned
judgment on the ground of alleged non-compliance with
certain provisions of the Act. It is further submitted that,
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considering the specific allegation of misbranding, the
ingredients of Section 2(ix)(k), read with Sections 7(i) and
7(ii) of the Prevention of Food Adulteration Act, 1954, stood
duly established. However, the learned Trial Court, relying
merely on a technical defence, passed the impugned judgment
and order of acquittal in favour of the present respondents.
4.10 Learned counsel for the appellant has submitted that,
despite the Forensic Science Laboratory (FSL) report
establishing that the sample was misbranded, the learned
Trial Court failed to properly appreciate the said report, the
material evidence, and the facts brought on record while
passing the impugned judgment and order. Consequently, the
impugned judgment and order is illegal, erroneous, unjust,
and contrary to the evidence on record, and therefore
deserves to be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT:
5. On the other hand, Mr. Modi, learned counsel for the
respondents accused has opposed the appeal and submitted
that the impugned judgment and order of acquittal passed by
the learned Trial Court is legal, just, and proper and has been
passed after thorough appreciation of the oral as well as
documentary evidence available on record. The learned Trial
Court has assigned cogent, convincing, and well-reasoned
findings while acquitting the respondents-accused, and the
same does not warrant any interference by this Court.
5.1 Learned counsel for the respondents accused has
submitted that the prosecution has failed to prove the charges
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levelled against the respondents beyond reasonable doubt.
The evidence led by the prosecution suffers from material
contradictions, omissions, and inconsistencies, which create
serious doubt about the veracity of the prosecution case. He
has submitted that the prosecution has failed to establish the
essential ingredients of the alleged offences and has not
produced reliable, trustworthy, and corroborative evidence
connecting the respondent with the commission of the alleged
offence.
5.2 Learned counsel for the respondents accused has
submitted that it is a settled principle of criminal
jurisprudence that the presumption of innocence in favour of
an accused is further strengthened by an order of acquittal.
Unless the findings recorded by the Trial Court are shown to
be perverse, illegal, or contrary to the evidence on record, the
Appellate Court should be slow in interfering with an order of
acquittal. It is submitted that the appellant has failed to point
out any infirmity, illegality, perversity, or misreading of
evidence in the impugned judgment and order. The findings
recorded by the learned Trial Court are based upon proper
appreciation of the evidence and settled legal principles.
5.3 Mr. Modi, learned counsel for the respondents, has drawn
the attention of this Court to the fact that the food article sent
for analysis was potato wafers, which is a proprietary food
item. It is submitted that, since no specific standard or
specification has been prescribed for the said food article
under the Prevention of Food Adulteration Act, 1954 or the
Rules framed thereunder, the case would be governed by Rule
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37A, which reads as under:
“37-A. Manufacture of proprietary foods and infant foods:-
(1) An article of infant milk substitutes/ infant foods whose
standards are not prescribed in Appendix ‘B’ shall be manufactured
for sale, exhibited for sale or stored for sale only after obtaining
the approval of such article of food and its label from Government
of India.
(2) In case of proprietary foods the name of the food or category
under which it falls in these rules shall be mentioned on the labelExplanation :- For the purpose of this rule :-
(a) and (aa) (infant food & infant) ….. Omitted
(b) ” Proprietary food”, means a food which has not been
standardised under the Prevention of Food Adulteration Rules,
1955″.
5.4 Learned counsel for the respondents has submitted that
in view of the above, “proprietary food” means a food for
which no standard has been prescribed under the Prevention
of Food Adulteration Rules, 1955. Since potato chips (wafers)
are proprietary food and no standard has been prescribed for
the said article under the Act or the Rules, it cannot be said
that the article in question, namely potato wafers, is a
misbranded food article. For that the learned counsel for the
respondents has further referred and relied the provision of
Sections 7, 13 and 16 of the Prevention of Food Adulteration
Act vis a vis Rule 32(f) of the Prevention of Food Adulteration
Rules, 1955, which reads as under:-
“7. Prohibition of manufacture, sale, etc., of certain articles of food.
–No person shall himself or by any person on his behalf
manufacture for sale, or store, sell or distribute–
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed,
except in accordance with the conditions of the licence;
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(iv) any article of food the sale of which is for the time being
prohibited by the Food (Health) Authority [in the interest of public
health;]
(v) any article of food in contravention of any other provision of this
Act or of any rule made thereunder; [or]
[(vi) any adulterant.]”
13. Report of Public analyst.–[(1) The public analyst shall deliver,
in such form as may be prescribed, a report to the Local (Health)
Authority of the result of the analysis of any article of food
submitted to him for analysis.
(2) On receipt of the report of the result of the analysis under sub-
section (1) to the effect that the article of food is adulterated, the
Local (Health) Authority shall, after the institution of prosecution
against the person from whom the sample of the article of food was
taken and the person , if any, whose name, address and other
particulars have been disclosed under section 14A, forward, in
such manner as may be prescribed, a copy of the report of the
result of the analysis to such person or persons, as the case may
be, informing such person or persons that if it is so desired, either
or both of them may make an application to the court within a
period of ten days from the date of receipt of the copy of the report
to get the sample of the article of food kept by the Local (Health)
Authority analysed by the Central Food Laboratory.
(2A) When an application is made to the court under sub-section
(2), the court shall require the Local (Health) Authority to forward
the part or parts of the sample kept by the said Authority and upon
such requisition being made, the said Authority shall forward the
part or parts of the sample to the court within a period of five days
from the date of receipt of such requisition.
(2B) On receipt of the part or parts of the sample from the Local
(Health) Authority under sub-section (2A), the court shall first
ascertain that the mark and seal or fastening as provided in clause
(b) of sub-section (1) of section 11 are intact and the signature or
thumb impression, as the case may be, is not tampered with, and
dispatch the part or, as the case may be, one of the parts of the
sample under its own seal to the Director of the Central Food
Laboratory who shall thereupon send a certificate to the court in
the prescribed form within one month from the date of receipt of
the part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the court
and only one part of the sample has been sent by the court to the
Director of the Central Food Laboratory under sub-section (2B),
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the court shall, as soon as practicable, return the remaining part to
the Local (Health) Authority and that Authority shall destroy that
part after the certificate from the Director of the Central Food
Laboratory has been received by the court:
Provided that where the part of the sample sent by the court to the
Director of the Central Food Laboratory is lost or damaged, the
court shall require the Local (Health) Authority to forward the part
of the sample, if any, retained by it to the court and on receipt
thereof, the court shall proceed in the manner provided in sub-
section (2B).
(2D) Until the receipt of the certificate of the result of the analysis
from the Director of the Central Food Laboratory, the court shall
not continue with the proceedings pending before it in relation to
the prosecution.
(2E) If, after considering the report, if any, of the food inspector or
otherwise the Local (Health) Authority is of the opinion that the
report delivered by the public analyst under sub-section (1) is
erroneous, the said Authority shall forward one of the parts of the
sample kept by it to any other public analyst for analysis and if the
report of the result of the analysis of that part of the sample by that
other public analyst is to the effect that the article of food is
adulterated, the provisions of sub-sections (2) to (2D) shall, so far
as may be, apply.](3) The certificate issued by the Director of the Central Food
Laboratory 3[under sub-section (2B)] shall supersede the report
given by the public analyst under sub-section (1).
(4) Where a certificate obtained from the Director of the Central
Food Laboratory 1[under sub-section (2B)] is produced in any
proceeding under this Act, or under sections 272 to 276 of the
Indian Penal Code (45 of 1860), it shall not be necessary in such
proceeding to produce any part of the sample of food taken for
analysis.
(5) Any document purporting to be a report signed by a public
analyst, unless it has been superseded under sub-section (3), or
any document purporting to be a certificate signed by the Director
of the Central Food Laboratory, may be used as evidence of the
facts stated therein any proceeding under this Act or under
sections 272 to 276 of the Indian Penal Code (45 of 1860).
[Provided that any document purporting to be a certificate signed
by the Director of the Central Food Laboratory [not being a
certificate with respect to the analysis of the part of the sample of
any article of food referred to in the proviso to sub-section (1A) of
section 16] shall be final and conclusive evidence of the facts
stated therein.]”
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16. Penalties.–8[(1) Subject to the provisions of sub-section (1A) if
any person–
(a) Whether by himself or by any other person on his behalf,
imports into India or manufacturers for sale or stores, sells
or distributes any article of food–
(i) which is adulterated within the meaning of sub-clause (m)
of clause (ia) of section 2 or misbranded within the meaning
of clause (ix) of that section or the sale of which is prohibited
under any provision of this Act or any rule made thereunder
or by an order of the Food (Health) Authority;
(ii) Other than an article of food referred to in sub-clause (I),
in contravention of any of the provision of this Act or of any
rule made thereunder, or
(b) whether by himself or by any other person on his behalf,
imports into India or manufacturers for sale or stores, sells or
distributes any adulterant which is not injurious to health; or
(c) prevents a food inspector from taking a sample as authorised by
this Act; or
(d) prevents a food inspector from exercising any other power
conferred on him by or under this Act; or
(e) being a manufacturer of an article of food, has in his
possession, or in any of the premises occupied by him, any
adulterant which is not injurious to health; or
(f) uses any report or certificate of a test or analysis made by the
Director of the Central Food Laboratory or by a public analyst or
any extract thereof for the purpose of advertising any article of
food; or
(g) whether by himself or by any other person on his behalf, give to
the vendor a false warranty in writing in respect of any article of
food sold by him.
he shall, in addition to the penalty to which he may be liable under
the provisions of section 6, be punishable with imprisonment for a
term which shall not be less than six months but which may extend
to three years, and with fine which shall not be less than one
thousand rupees:
Provided that–
(i) if the offence is under sub-clause (I) of clause (a) and is with
respect to an article of food, being primary food, which is
adulterated due to human agency or is with respect to an article of
food which is misbranded within the meaning of sub-clause (k) of
clause (ix) of section 2; orPage 13 of 30
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(ii) if the offence is under sub-clause (ii) of clause (a), but not being
an offence with respect to the contravention of any rule made
under clause (a) or clause (g) of sub-section (1A) of section 23 or
under clause (b) of sub-section (2) of section 24,
the court may, for any adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for
a term which shall not be less than three months but which may
extend to two years, and with fine which may extend to two years,
and with fine which shall not be less than five hundred rupees:
Provided further that if the offence is under sub-clause (ii) of
clause (a) and is with respect to the contravention of any rule made
under clause (a) or clause (g) of sub-section (1A) of section 23 or
under clause (b) of sub-section (2) of section 24, the court may, for
any adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment for a term which may extend to
three months and with fine which may extend to five hundred
rupees.][(1A) If any person whether by himself or by any other person on
his behalf, imports into India or manufactures for sale, or stores,
sells or distributes–
(i) any article of food which is adulterated within the
meaning of any of the sub-clause (e) to (l) (both inclusive) of
clause (ia) of section 2; or
(ii) any adulterant which is injurious to health,
he shall, in addition to the penalty to which he may be liable under
the provisions of section 6, be punishable with imprisonment for a
term which shall not be less than one year but which extend to six
years and with fine which shall not be less than two thousand
rupees:
Provided that if such article of food or adulterant, when consumed
by any person is likely to cause his death or is likely to cause such
harm on his body as would amount to grievous hurt within the
meaning of section 320 of the Indian Penal code (45 of 1860), he
shall be punishable with imprisonment for a term which shall not
be less than three years but which may extend to term of life and
with fine which shall not be less than five thousand rupees.]
[(1AA)] if any person in whose safe custody any article of food has
been kept under sub-section (4) of section 10, tampers or in any
other manner interferes with such article, he shall be punishable
with imprisonment for a term which shall not be less than six
months but which may extend to two years and with fine which
shall not be less than one thousand rupees.
2[(1B) if any person in whose safe custody any article of food has
been kept under sub-section (4) of section 10, sells or distributes
such article which is found by magistrate before whom it is
produced to be adulterated within the meaning of sub-clause (h) of
clause (ia) of section 2 and which, when consumed by any person,Page 14 of 30
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is likely to cause his death or is likely to cause such harm on his
body as would amount to grievous hurt within the meaning of
section 320 of the Indian Penal Code (45 of 1860), then
notwithstanding anything contained in sub-section (1AA), he shall
be punishable with imprisonment for a term which shall not be less
than three years but which may extend to term of life and with fine
which shall not be less than five thousand rupees.](1C) if any person contravenes the provisions of section 14 or
section 14A, he shall be punishable with imprisonment for a term
which may extend to six months and with fine which shall not be
less than five hundred rupees.
(1D) if any person convicted of an offence under this Act commits a
like offence afterwards, then without prejudice to the provision of
sub-section (2), the court, before which the second or subsequent
conviction takes place, may order the cancellation of the licence, if
any, granted to him under this Act and thereupon such licence
shall, notwithstanding anything contained in this Act or in the rules
made thereunder, stand cancelled.
(2) if any persons convicted of an offence under this Act commits a
like offence afterwards it shall be lawful for the court before which
the second or subsequent conviction takes place to cause the
offender’s name and place of residence, the offence and the penalty
imposed to be published at the offender’s expense in such
newspapers or in such other manner as the court may direct. The
expenses of such publication shall be deemed to be part of the cost
attending the conviction and shall be recoverable in the same
manner as a fine.
[16A. Power of court to try cases summarily.–Notwithstanding
anything contained in the code of Criminal Procedure, 1973 (2 of
1974), all offences under sub-section (1) of section 16 shall be tried
in a summary way by a judicial Magistrate of the first class
specially empowered in this behalf by the State Government or by
a Metropolitan Magistrate and the provisions of sections 262 to
265 (both inclusive) of the said Code shall, as far as may be, apply
to such trial:
Provided that in the case of any conviction in a summary trial
under this section, it shall be lawful for the Magistrate to pass a
sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the
course of, a summary trial under this section, it appears to the
Magistrate that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be passed
or that it is, for any other reason, undesirable to try the case
summarily, the Magistrate shall after hearing the parties, record
an order to that effect and thereafter recall any witness who mayPage 15 of 30
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have been examined and proceed to hear or rehear the case in the
manner provided by the said Code.”
Rule 32. Package of food to carry a label :- Every package of food
shall carry a label and unless otherwise provided in these rules,
there shall be specified on every label :
(f) the month and year in which the commodity is manufactured or
prepacked;
Provided that in case of package weighting 20 g or less andliquid
products marketed in bottles which are recycled for refilling,
particulars under clause (b) need not be specified.
Provided also that such declarations shall be given on the label of
multipiece package either on the label of multipiece package or in
a separate slip inside the multipiece package in such a manner that
the same is readable even without opening the package.
Provided further that in case of carbonated water containers and
the packages of biscuits, confectionery and sweets, containing
more than 60g, but not more than 120g, and food packages
weighing not more than 60g. particulars under clauses (d) and (e)
need not be specified.
Provided also that in case of packages containing bread and milk
including sterilised milk, particulars under clause (e) need not be
specified.
Provided also that in case of any package containing bread or
liquid milk, sterilized or Ultra High Temperature treated milk, Soya
milk, flavoured milk, any package containing dhokla, bhelpuri,
pizza, doughnuts, khoa, paneer or any uncanned package of fruits,
vegetables, meat, fish or any other like commodity which has a
short shelf life, the date, month and year in which the commodity is
manufactured or prepared or prepacked shall be mentioned, on the
label:
Provided also that in case of package containing confectionery
weighing 20g. or less, the particulars under this clause need not be
specified.”
5.5 It is also further contention raised by Mr. Modi, learned
counsel that the complainant appellant herein has not
produced the copy of the label nor the packet before the
concerned trial Court at the time of conducting of the trial
and therefore also, it is clearly violation of the settledPage 16 of 30
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principle of law, as enunciated by this Court vide order dated
29.07.2009 in case of Ahmedabad Municipal Corporation
through Food Inspector, D.G. Patel vs. Abid Hussain
Abdul Majid Ansari and another passed in Criminal Appeal
No.3173 of 2008 wherein this Court held as under:-
“1….Even as three samples were taken, the Food Inspector did not
produce other samples or labels before the Court, even in the case
of alleged mis-branding and thus, the Court was deprived of
primary and direct evidence of mis-branding…..”
5.6 Mr. Modi, learned counsel for the respondents, submitted
that proprietary food is governed by Rules 37A and 37B of the
Prevention of Food Adulteration Rules. He submitted that
where no specific standard has been prescribed under the
Prevention of Food Adulteration Act and the Rules, it is
sufficient if the label mentions the name of the proprietary
food and its category. According to him, the packet of Balaji
Wafers contains the requisite particulars on its label. He
further submitted that potato chips (wafers) fall within the
category of proprietary food, as no standard has been
prescribed for the said article either under the Act or the
Rules.
5.7 In support of his submissions, learned counsel Mr. Modi
placed reliance upon the judgment dated 16.02.2010 passed
by a Coordinate Bench of this Court in the case of V.B.
Chauhan v. Umeshbhai Manubhai Modi in Criminal
Appeal No. 2255 of 2009, wherein the Court, in paragraph
9 of the judgment, held and observed as under:
“9. I have gone through the judgment and order passed by the Trial
Court and have also perused the oral as well as documentary
evidence produced before me and also considered the submissionsPage 17 of 30
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made by the learned advocates of both the sides. On going through
the judgment and order passed by the Trial Court and the papers
placed before me, I am of the opinion that the Trial Court has not
committed any error in not believing the case of the prosecution. It
is observed that prosecution has failed to establish that the
accused no.2 is the owner of New Mahakali Product and Deepa
Sales Agency and to prove the said fact, the prosecution has not
examined any independent witness. As per Rule 37(a) and (b) of
the Rules, no standard is fixed for Peas (Vatana). It is an
agricultural product and thus, Peas (Vatana) is Proprietary Food.
As per the definition of the Proprietary Food, only category of food
and name is required to be mentioned on the label, which is
already there on the label. Thus, the prosecution has failed to
prove the case against Respondents-accused. It is also observed
that the prosecution has failed to prove that the complainant has
followed the provision of Section 20 of the Act. It is also observed
that the prosecution has miserably failed to prove its case beyond
reasonable doubt against the respondents-accused. I find that the
findings recorded by the Trial Court are absolutely just and proper
and in recording the said findings no illegality or infirmity has been
committed by it. The learned Judge has rightly come to the
conclusion that the prosecution has miserably failed to prove the
case against the respondents-accused.”
5.8 Mr. Modi, learned Counsel has also referred and relied
upon the decision of this Court dated 25.09.2024 passed in
Criminal Appeal No. 1132 of 2006 in case of Nalinbhai H.
Vyas, Food Inspector Versus Kishorbhai Ghelaram
Khushlani for Paris Confectionary Works and
Vishnuprasad C. Dodiya vs. Surendrakumar Mohanlal
Thakkar reported in 1994 (1) GLR 487, wherein the this
court has in identical facts passed the order dismissing the
appeal and confirming the order of trial court.
5.9 In view of the aforesaid facts and circumstances, it is
submitted by Mr. Modi, learned counsel for the respondents
submitted that the present appeal is devoid of merits and
deserves to be dismissed. The impugned judgment and order
of acquittal passed by the learned Trial Court therefore
deserves to be confirmed.
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ANALYSIS
6. I have perused the relevant documents and material
placed on record. I have also gone through the record and
proceeding of the appeal as well as the impugned judgment
and order passed by the trial Court.
7. Upon perusal of the impugned judgment and order, as
well as the submissions advanced by the learned advocates for
both sides, the issues that arises for consideration before this
Court are as under:-
Whether the learned Trial Court, while appreciating the
evidence of the prosecution witnesses, has committed
any error of law or fact?
Whether the impugned judgment and order of acquittal
suffers from any illegality or perversity?
8. In view of the above, it would appropriate to first
consider the facts of the case. On 05.08.1998, at about 9:30
a.m., the complainant, Shri B. C. Kathiria, who was serving as
a Food Inspector with the Junagadh Municipality, visited the
premises of respondent No. 2 in the presence of the panch
witnesses and other officials for the purpose of inspection.
During the inspection, he found one carton containing packets
of Balaji Wafers, each weighing 40 grams. Upon examination
of the packets, it was found that the date of manufacture,
batch number, expiry date, and other mandatory particulars
were neither mentioned nor printed on the packets.
9. Therefore, the complainant lodged a complaint before
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the learned Magistrate alleging the commission of offences
punishable under Section 2(ix)(k), read with Rule 32(f) r/w
Sections 7(i) and 7(ii), r/w Section 16 of the Prevention of
Food Adulteration Act, 1954, and the Rules framed
thereunder.
10. The sample was sent to the Food Laboratory for analysis,
and the report received by the complainant revealed that the
sample was found to be misbranded. Upon receipt of the said
report, the complainant prepared the necessary proposal and
sought sanction from the competent authority to institute
prosecution against the present respondents by filing a
complaint before the competent Court.
11. Thereafter, the sanctioning authority, upon considering
the material placed before it, accorded sanction for the
prosecution of the respondents for the alleged offences.
12. Now, on perusal of the impugned judgment and the
documentary evidence produced by the appellant-original
complainant, as well as upon a careful examination of the
deposition of the complainant, it appears that the learned
Trial Court found certain infirmities in the documentary
evidence produced by the complainant. On that basis, the
learned Trial Court disbelieved the case of the appellant-
original complainant and consequently passed the impugned
judgment and order.
13. On perusal of the record, it appears that the complaint
was filed alleging breach of the provisions of Section 2(ix)(k),
read with Rule 32(f) r/w Sections 7(i) and 7(ii), r/w Section 16
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of the Prevention of Food Adulteration Act, 1954, and the
Rules framed thereunder relating to misbranding.
14. For that it is appropriate to refer Section 7(ii) of the
Prevention of Food Adulteration Act, which reads as under:-
“7. Prohibition of manufacture, sale, etc., of certain articles of food.
–No person shall himself or by any person on his behalf
manufacture for sale, or store, sell or distribute–
(i) xxx
(ii) any misbranded food;”
15. On a plain reading of Section 7(ii) of the Act, it is evident
that the allegation pertains to the sale of a misbranded food
article. Thus, the case of the complainant-appellant, if at all,
would fall within the ambit of Section 7(ii) of the Act.
However, the sanctioning authority granted sanction for
prosecution under Section 7(i) (v) of the Act, though the facts
of the present case do not disclose any offense under those
provisions. This clearly indicates that the sanctioning
authority failed to apply its mind while granting sanction,
which is evident from the sanction order produced on record
at Exhibit 73. The said Section 7(i)(v) reads as under:-
“7. Prohibition of manufacture, sale, etc., of certain articles of food.
–No person shall himself or by any person on his behalf
manufacture for sale, or store, sell or distribute–
(i) any adulterated food;
(ii) xxx
(iii) xxx
(iv) xxx
(v) any article of food in contravention of any other provision of this
Act or of any rule made thereunder; [or]
xxx”
16. It clearly appears from the record that the sanctioning
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authority, namely the Assistant Commissioner, granted
sanction for prosecution for the offense punishable under
Section 2(ix)(k) of the Act, read with Section 7(i) and Section
7(v) of the Act. However, the alleged offense in the present
case does not fall within the ambit of Section 7(i) or Section
7(v) of the Act. Therefore, on a perusal of the sanction order
and the documents on record, it clearly transpires that the
sanctioning authority granted sanction for prosecution
without proper application of mind.
17. It is appropriate to note herein that the food article was
send for the purpose of examination at Exh. 51, the details
which read as under:-
Code & Name Date and place of Nature of Nature and
Serial No. of the collection article quantity of
of the vendor submitted preservation in
L.H.A. Slop for any, preservative
Analysis to the sample
1 2 3 4 5
10/JND/ 5/8/98 JUNAGADH Balaji Batch number, lot
MU/ wafers number,
JJND// packet 40 manufacturing
11/30/98 Gms. date are not
mentioned on the
label
18. However, upon receipt of the Public Analyst’s report at
Exhibit 60, it was found that there were material
discrepancies in the sample number. The report mentioned
the sample number as “10/JND/MU/JND/1-30/98”, whereas the
sample actually sent for analysis bore the number
“10/JND/MU/JJND/11/30/98”. This discrepancy clearly
indicates that the report pertains to a different sample. The
report further stated that the sample of Balaji Wafers was
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misbranded under Section 2(ix)(k) read with Rule 32(f) of the
Prevention of Food Adulteration Rules.
19. This clearly demonstrates complete non-application of
mind on the part of the concerned authority. The food article
in question was a proprietary food product. However, the
sample number mentioned in the Public Analyst’s report at
Exhibit 60 does not correspond with the sample that was
collected and sent for analysis. The analysis report, therefore,
appears to relate to a different sample, rendering it unreliable
and vitiating the prosecution case.
20. Under this circumstances, the impugned judgment and
order passed by the learned Trial Court is in consonance with
a settled principle of law. It also appears that the analysis
report was not forwarded to the respondent No.2 original
accused No.1 within 7 days from the date of receipt, as it is
observed by the Court in the decision in case of Chimanlal
Govindji Thakker vs. State of Gujarat reported in
1997(1) GLR 458. The relevant part of the said decision
reads as under:-
“(B) Prevention of Food Adulteration Act, 1954 (XXXVII of 1954)-
Secs. 7 & 16(1)(a) – Prevention of Food Adulteration Rules, 1955-
Rule 9A- Requirement to send report of the result of analysis to
person from whom sample was taken witin 7 days after the
institution of prosecution- Such report sent more than one month
after filing the complaint – Accused entitled to acquittal.
“14. There is also another aspect of the case, wherein Rule 9-A of
the Prevention of Food Adulteration Rules, 1955 has not been
complied with. The said Rule provides that the Local (Health)
Authority shall within a period of ten days after the institution of
prosecution forward a copy of the report of the result of analysis in
Form III delivered to him under sub-rule (3) of Rule 7, byPage 23 of 30
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registered post or by hand, as may be appropriate, to the person
from whom the sample of the article was taken by the Food
Inspector, and simultaneously also to the person, if any, whose
name, address and other particulars have been disclosed under
Section 14-A of the Act. It is evident from the record that such
notice as contemplated under Rule 9-A was sent to the accused on
January 19,1982 by Registered A.D. The complaint was filed by the
Food Inspector against the accused on 31.12.1981. Thus,
admittedly, the notice, as required under section 9-A of the Rules
was not sent to the accused within 10 days, inasmuch as it was
sent after one month and 18 days. Thus, there is a clear breach of
Rule 9-A of the Rules. The accused is also entitled to acquittal on
this ground.
21. It is also observed that under Section 23(1)(a) of the Act
as amended, if the packet containing of 40 grams that is
below 60 grams, it is not mandatory to mention the date of
manufacturing, batch of manufacturing and expiry of
manufacturing and here in the present case the packet is
weighing 40 grams each and only 5 packets that is 200 grams
were sent for the purpose of examination to the food
laboratory whereas the minimum quantity of 500 gram is
required to be sent as a sample for examination and here in
the present case, it is an admitted fact that the appellant
herein has not sent a sample of 500 grams for the purpose of
examination and therefore, after considering all these facts,
the learned Trial Court has rightly passed the impugned
judgment and order and there is no any infirmity found in the
impugned judgment and order of acquittal.
22. As observed by the learned Trial Court while recording its
reasons in paragraph 7 onwards, the Court has adequately
explained why it disbelieved the prosecution’s case. The seven
reasons recorded in paragraph 11 of the impugned judgment
and order of acquittal clearly justify the findings arrived at by
the learned Trial Judge. Upon perusal of the impugned
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judgment, as well as the entire record and proceedings, I am
in complete agreement with the findings recorded by the
learned Trial Judge. I find no infirmity, illegality, or perversity
in the impugned judgment and order of acquittal. Accordingly,
the present appeal deserves to be dismissed, and the
impugned judgment and order of acquittal is hereby
confirmed.
23. At this stage, it appropriate to refer the decision of the
Court in case of Ahmedabad Municipal Corporation
through Food Inspector, D.G. Patel vs. Abid Hussain
Abdul Majid Ansari, and another passed in Criminal Appeal
No.3173 of 2008, the decision dated 25.09.2024 passed in
Criminal Appeal No. 1132 of 2006 in case of Nalinbhai H.
Vyas, Food Inspector Versus Kishorbhai Ghelaram
Khushlani for Paris Confectionary Works and
Vishnuprasad C. Dodiya vs. Surendrakumar Mohanlal
Thakkar reported in 1994 (1) GLR 487, in case of
Chimanlal Govindji Thakker vs. State of Gujarat
reported in 1997(1) GLR 458 and V.B. Chauhan v.
Umeshbhai Manubhai Modi in Criminal Appeal No. 2255
of 2009, whereby identical issue has been dealt with by this
Court.
24. Even in the case of Ganpatbhai Prajapati vs. Food
Inspector reported in 2005 3 GLH 389 this Court while
dealing with the submission of learned counsel has observed
in paragraph No.6 as under:-
“6. It is true that the complainant has said in his deposition that
the relevant papers along with the draft complaint were placed
before the sanctioning authority and so according to Mr.Sood, thisPage 25 of 30
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can be said to be a valid sanction. But it is rightly argued by
Mr.Joshi that the sanction obviously looks granted mechanically
and the same is given without application of mind. This Court and
the Apex Court has dealt with this aspect on various occasions and
under different lines where statutory legal sanction to prosecute is
mandatory. But in one case under the Act itself, this Court
considered the identical sanction granted by the Deputy Municipal
Commissioner, Ahmedabad Municipal Corporation and for the sake
of brevity and convenience, it would be bene cial for the purpose to
quote relevant part of the decision of this Court (Coram Miss R.M.
Doshit, J) in Criminal Revision Application No. 110 of 1994 decided
on 15th/18th September, 2000, which is as under:
[“…The only contentions, “which according to me, merit
consideration are (1) The consent recorded by the competent
authority under Sec. 20(1) of the Act does not disclose application
of mind. The consent given without due application of mind would
be fatal to the prosecution; and (b) the accused had not been given
adequate opportunity to put forth his defence in his examination
under Sec. 313 CRPC as regards the nature of adulteration found
in the oil sold by him to the Food Inspector.][The consent as envisaged under Sec. 20 of the Act has been
recorded beneath the complaint in the following terms :
[“Scrutinised all the papers and sanctioned prosecution.”]
The consent as recorded does not evidence active application of
mind. Though no reasons are required to be recorded while
granting consent under Sec. 20 of the Act, the prosecution is duty
bound to satisfy the Court that the consent had been given after
perusal of all the relevant papers and after proper application of
mind.”]”
25. Further, on perusal of the record of the appeal, it
transpires that the respondent-accused established innocence
before the learned Trial Court and that, after due appreciation
of the oral as well as documentary evidence and other
material placed on record, the learned Trial Court has rightly
passed the impugned judgment and order of acquittal. The
findings recorded by the learned Trial Court are just, proper
and in accordance with the settled principles of law and,
therefore, no interference is warranted by this Court.
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26. It is well settled by catena of decisions that the Appellate
Court has full power to review, re-appreciate and reconsider
the evidence upon which the order of acquittal is founded.
However, Appellate Court must bear in mind that in case of
acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of their
innocence is further reinforced, reaffirmed and strengthened
by the trial Court.
27. Further, if two reasonable conclusions are possible on
the basis of the evidence on record, the Appellate Court
should not disturb the finding of acquittal recorded by the
trial Court. Further, while exercising the powers in appeal
against the order of acquittal, the Court of appeal would not
ordinarily interfere with the order of acquittal unless the
approach of the lower Court is vitiated by some manifest
illegality and the conclusion arrived at would not be arrived at
by any reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
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record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a
just decision on the basis of material placed on record to find
out whether the accused are connected with the commission
of the crime with which he is charged.
28. The scope and principles are enunciated by the Hon’ble
Apex Court in case of Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415, more particularly
paragraph Nos. 42 and 43, which was subsequently re-
affirmed by the Hon’ble Apex Court Rajesh Prasad Vs. State
of Bihar and another, reported in [2022] 3 SCC 471,
wherein, the Hon’ble Apex Court has enunciated the general
principles in case of acquittal, more particularly in paragraph
No. 26 the general principles are set out by the Hon’ble Apex
Court based upon various decisions of the Hon’ble Apex
Court. Then in case of Babu Sahebagouda Rudragoudar
Vs. State of Karnataka, reported in AIR 2024 SC 2252 =
(2024) 8 SCC 149, the Hon’ble Apex Court has dealt with
the similar issue, more particularly, in paragraph Nos. 37 to
40. Hence, I am in complete agreement with the findings
recorded by the trial Court.
29. It is also worthwhile to refer to the recent decision of the
Hon’ble Supreme Court in the case of Ramesh vs. State of
Karnataka, reported in [2024] 9 SCC 169, wherein the
Hon’ble Supreme Court has held and observed in paras-20
and 21 as under:-
“20. At this stage, it would be relevant to refer to the general
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principles culled out by this Court in Chandrappa and others vs.
State of Karnataka , regarding the power of the appellate Court
while dealing with an appeal against a judgment of acquittal. The
principles read thus:
“42. …. (1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasize the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.
21. In Rajendra Prasad v. State of Bihar, a three-Judge Bench of
this Court pointed out that it would be essential for the High
Court, in an appeal against acquittal, to clearly indicate firm and
weighty grounds from the record for discarding the reasons of the
Trial Court in order to be able to reach a contrary conclusion of
guilt of the accused. It was further observed that, in an appeal
against acquittal, it would not be legally sufficient for the High
Court to take a contrary view about the credibility of witnesses
and it is absolutely imperative that the High Court convincingly
finds it well-nigh impossible for the Trial Court to reject their
testimony. This was identified as the quintessence of the
jurisprudential aspect of criminal justice. Viewed in this light, the
brusque approach of the High Court in dealing with the appeal,
resulting in the conviction of Appellant Nos. 1 and 2, reversing
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the cogent and well-considered judgment of acquittal by the Trial
Court giving them the benefit of doubt, cannot be sustained.”
30. Considering the entire evidence on record, it clearly
appears that there is no credible evidence to connect the
present accused with the alleged crime and the evidence on
record is not so convincing to prove beyond reasonable doubt
that the accused has committed the alleged crime. Therefore,
the accused cannot be convicted on the evidence on record.
31. On perusal of the impugned judgment and order, it clearly
transpires that the trial Court has not committed any error of
fact and law in appreciating the evidence on record and in
acquitting the accused from the charges levelled against
them. Even on re-appreciation of the evidence, it clearly
transpires that the prosecution has miserably failed to prove
the charge levelled against the accused beyond reasonable
doubt. Therefore, the impugned judgment and order of the
trial Court is sustainable and the present appeal is liable to be
dismissed.
32. In view of the above, the present appeal is devoid of
merits and it deserves to be dismissed. Resultantly, it is
dismissed. The impugned judgment and order of acquittal
passed by the trial Court is hereby confirmed. Bail bond
stands cancelled. Record and proceedings be sent back to the
concerned Trial Court forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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