(1) Cri. Application No. 3164 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3164 of 2011 The State of Maharashtra, through Mr. K.R. Jaipurkar, .. Applicant Food Inspector, Food and Drugs (Original Administration, Jalna [MS] complainant) versus Kachrulal Fattechand Agrawal, Age : 37 years, Proprietor of M/s. Akash Trading Company, 1-13-141, Gala No. 21, .. Respondent New Mondha, Jalna. (Original accused) ....................... Mr. S.G. Nandedkar, Additional Public Prosecutor, for the applicant. Mr. D.S. Bharuka, Advocate, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 23RD NOVEMBER 2011 (2) Cri. Application No. 3164 of 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant i.e. original complainant seeking leave to file appeal challenging the judgment and order of acquittal, dated 7-3-2011, rendered by the learned Chief Judicial Magistrate, Jalna, in Regular Criminal Case No. 146/1995, thereby acquitting the respondent i.e. original accused, for the offence punishable under Section 7(i), read with Sections 2(ia), 2(ia)(m) punishable 16 and 17 of the Prevention of Food Adulteration Act, 1954 (For short, hereinafter referred to as "PFA Act"). 3. Parties hereinafter referred to as per their original status i.e. complainant and accused. 4. I have perused the impugned judgment dated 7-3-2011 with the assistance of learned Counsel for the parties. 5. The prosecution case is that on 4-2-1993, the Food Inspector along with Panch Mr. Sudhirkumar Pahade visited the respondent's shop, namely, M/s. Akash Trading Company, New Mondha, Jalna, and took search of the said shop, and found (3) Cri. Application No. 3164 of 2011 Iodised Salt (Ankur Brand), which was allegedly stored for sale purpose. Accordingly, he purchased 3 company packed packets of Iodized Salt (Ankur Brand) of 1 kg. each. He also purchased three packets for test and analysis. Then, he intimated in form No. VI to accused no.1 for drawing of the sample of Iodised Salt (Ankur Brand), as well as, gave notice under Section 14-A of PFA Act to the complainant. Then, the complainant divided sample of Iodised Salt (Ankur Brand) in three equal parts by following due procedure as mentioned in PFA Act, and the said sample was secured by means of strong thread, and also sample packets were sealed with Lakh seal. On 5-3-1993, three sample packets of Iodised Salt (Ankur Brand) along with Form No. VII was sent for test and analysis. On the same day, the complainant handed over two sealed parts of sample with covering letter and two copies of Form No. VII in a sealed cover to the local Health Authority at Jalna. On 6-2-1994, Mr. Shete, Food Inspector, sent notice to accused no.2 Omprakash Goud, owner of M/s. Bhagwati Salt Supplier, Gandhi Dham, Katch (Gujarat), by Registered Post A.D., and received Public Analyst report from Public Analyst, State Public Health Laboratory, Aurangabad, through LHA & ACFDA, Jalna, on 29-3-1993, and found that the Iodised Salt (Ankur Brand) was of non-standard. Accordingly, prosecution was launched against the respondent after obtaining consent. (4) Cri. Application No. 3164 of 2011 6. To substantiate the charges levelled against the respondent, the prosecution examined as many as four witnesses, namely : (1) PW 1 - Rajendra s/o. Bharma Shete - Food Inspector. (2) PW 2 - Krushna s/o. Anandrao Jaipurkar - another Food Inspector. (3) PW 3 - Sudhirkumar s/o. Pannalal Pahade - Panch. (4) PW 4 - Sanctioning Authority. 7. However, Rajendra Shete (PW 1) admitted in his cross examination, that Food Inspector and Food Supervisor are different posts, and he being Supervisor, he is not competent person to collect the sample. Moreover, Krushna Jaipurkar (PW 2), another Food Inspector, also admitted in his cross examination, that he noticed the mistake in the consent order regarding writing of date at the place of signature, before filing complaint in the court. He also admitted that the consent order Exhibit 85 has not been given by duly authorized person. 8. Sudhirkumar Pahade (PW 3), in his testimony, has (5) Cri. Application No. 3164 of 2011 admitted his signature below Exhibit 46 i.e. receipt, as well as, Exhibit 50 i.e. inspection report, but he has denied contents of it. Learned APP also cross examined him, but nothing beneficial to the prosecution case could be extracted therefrom. Pertinently, Raokhande (PW 4), sanctioning authority, admitted in his deposition that he has not filed postal acknowledgment receipt on record regarding service of notice under Section 13(2) of PFA Act, and hence, learned trial court observed that it clearly appears that notices have not been duly served upon accused, and apparently, there is non-compliance of Section 13(2) of PFA Act. Learned trial court has further observed that the postal acknowledgment receipts under Section 13(2) of PFA Act is mandatory one and it is the duty of the prosecution to serve the notices along with Public Analyst report in order to give an opportunity to the accused to apply for re-analysis of the questioned food article. However, in the present case, it appears that notices have not been duly served upon accused, and hence, he has been deprived of his valuable right to apply for re- analysis, and the said observations go to the root of the matter and same cannot be faulted with. 9. Besides, the Food Inspector Rajendra Shete (PW 1) has stated in his deposition that he divided the sample of 'Iodised Salt' (Ankur Brand) into three equal parts but the evidence (6) Cri. Application No. 3164 of 2011 reveals that the same was not taken in a jar or container as contemplated under Rule 14 of the Prevention of Food Adulteration Rules, 1955. Moreover, it is also admitted fact that accused no.1 is not the manufacturer, but he is simply vendor and he has produced the bill on record, and therefore, he is entitled for benefit under Section 19(2) of PFA Act. 10. In the circumstances, there are non-compliances of mandatory provisions of PFA Act, as well as, Rules, and hence, benefit of doubt was given to the accused under Section 19(2) of PFA Act, and he has been rightly acquitted by learned trial court and no interference therein is called for in appellate jurisdiction. 11. Besides, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, is a possible view and same does not appear to be perverse and the reasoning given therefore, apparently, cannot be faulted with, and therefore, present Application deserves to be dismissed. 12. In the result, present Criminal Application which is sans merits stands dismissed. Leave to file appeal is refused. (7) Cri. Application No. 3164 of 2011 13. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/ka3164