( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 60 OF 2000 The State of Maharashtra .. Appellant through Food Inspector, Food and Drugs Administration, Nath Market, Aurangabad. Versus 1. Ashok Genmal Katariya, Vendor and .. Respondents Manager of M/s. Swastik Graha Udyog, H-5/16, Chikalthana MIDC Area, Aurangabad. 2. Vijaykumar Genmal Katariya, Proprietor of M/s. Swastik Graha Udyog, H-5/16, Chikalthana, MIDC Area, Aurangabad. Shri K.M. Suryawanshi, A.P.P. for the appellant/State. Shri P.F. Patni, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 08.01.2010 ORAL JUDGMENT :- 1. This is an appeal preferred by the State being aggrieved by the judgment and order of acquittal passed by the Chief Judicial Magistrate, Aurangabad, in R.C.C. No. 338 ( 2 ) of 1997, decided on 28.09.1999, whereby the respondents were acquitted of offences punishable under sections 7 (i) read with section 2 (ia) (a) & section 2 (ia) (i), r/w section 16 (1-A) (i) and section 16 (i) (a) (ii) of the prevention of Food Adulteration Act, 1954. 2. Briefly stated the facts giving rise to this appeal may be stated as below :- . Respondent No.2 – Vijaykumar Katariya was proprietor of shop M/s. Swastik Graha Udyog, situated at Chikalthana MIDC Area, Aurangabad. On 12.10.1995 the complainant – Food Inspector, P.W.1 Yeshwant visited said shop. At that time accused No.1 was present as vendor. Panch - Raju Gaikwad had accompanied the complainant. During inspection the Food Inspector found a heap of wheat weighing about 50 kg. lying near cleaning machine and wheat was for sale. The Food Inspector purchased 750 gm. wheat from respondent No.1 Ashok and obtained a bill. He also gave notices in Form No.VI and under section 14 (A) of the Food Adulteration Act. Thereafter, wheat purchased was divided in equal three parts, which were packed, labelled and sealed. ( 3 ) One part of the samples was sent to Public Analyst and remaining two parts were sent to Local Health Authority. Subsequently, the Food Inspector received report of Public Analyst, which is proved at Exh.41. According to the complainant wheat was adulterated. He obtained necessary consent for prosecution and filed complaint. 3. At the time of evidence the complainant examined himself, so also panch witness and Dr. Dinkar, who was Local Health Authority. Ultimately, trial ended in acquittal and being aggrieved thereby this appeal is filed. One of the major reasons for recording acquittal is that the report of Public Analyst did not indicate either percentage of Organo- phospho insecticide found or that it was injurious to the health of consumer. 4. Section 2 (ia) defines “adulterated” and relevant clauses would be (b, (c), (e), (f) or (m), which are as follows :- “2 (ia) “adulterated” - an article of food shall be deemed to be adulterated - ( 4 ) x x x x x (b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof; (c) if any inferior or cheaper substance has been substituted wholly or in part of the article so as to affect injuriously the nature, substance or quality thereof; x x x x x (e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health; (f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect- infested or is otherwise unfit for human- consumption; x x x x x (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits variability but which does not render it injurious to health;” 5. In this case, report of Public Analyst is at Exh.41 and it states that the sample of wheat was analysed and column 8 is to the effect :- 8 – Pesticide reside- i) Organo-phospho pesticide residue – detected confirmed by T.L.C. ( 5 ) Thus Regional Public Analyst reported that the sample shows presence of Organo-phospho group of pesticide residue. 6. Adv. Shri P.F. Patni drew my attention to rule 65 of the Prevention of Food Adulteration Rules, 1955, which lays down that subject to the provisions of sub-rule (2), no insecticide shall be used directly on articles of food. It is further laid down in sub-rule (2) that the amount of insecticide mentioned in column (2) on the foods mentioned in column (3), shall not exceed the tolerance limit prescribed in column 4. Sub-rule (3) lays down that notwithstanding anything contained in the rule, the amount of insecticide mentioned in column (2), on the imported wheat for the purpose of Public Distribution System, or imported under the O.G.I., vide number G.S.R. 386 (E), dated 28th June, 2006, shall not exceed the tolerance limit prescribed in column (3) of the table. This indicates that it was necessary for the Public Analyst to opine that either the presence of organo- phospo insecticide was injurious to health as mentioned in clauses of section 2 (ia) as mentioned above or it exceeded permissible limit. We do not find such report and therefore ( 6 ) it cannot be said prima facie that the wheat sample taken from the respondents was adulterated, within meaning of Section 2 (ia) of the P.F.A. Act. 7. Another limb of the argument advanced by Adv. Shri P.F. Patni for the respondent is that the sample of the food article was not produced in the Court within seven days and that is admitted by the complainant in para 14 of his deposition. If we consider the scheme of the Prevention of Food Adulteration Act, it lays down under Section 13 that as soon as report of public analyst is received, Local Health Authority is to issue notices to the accused persons and under sub-section (2-A), if an application is made to the Court by the accused, then the Court is to require Local Health Authority to forward part of the sample kept with the authority within five days. So, it is not that remaining two parts should be sent by the Local Authority to the Court, unless Court required it. 8. The Trial Court has also acquitted the accused on the ground that the wheat was not for sale. ( 7 ) 9. In this case the order of acquittal deserves to be upheld mainly on the ground that the report of the public analyst received did not in-fact make clear under what provisions of the Act or Rules the sample was found adulterated. The public Analyst should have either certified that the article was injurious to the health or should have stated that the insecticide residue found were beyond permissible limit. In absence of such case, this appeal should fail. Hence, the appeal is dismissed. The judgment and order passed by the learned Chief Judicial Magistrate is hereby confirmed. 10. The Criminal Appeal is dismissed and disposed of. [P.R. BORKAR,J.] snk/2010/JAN10/crap60.00