1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.118 OF 1998. The State of Maharashtra through Food Inspector, Food and Drugs Administration, Maharashtra State, Champa Baug, Sakri Road, Dhule. ... Appellant. Versus 1. Ajaykumar Sanchalal Bardia, Age 23 years, 2. Chandanmal Sanchalal Bardia, Age 25 years, 3. Firm M/s Sanjyakumar Chandanmal and Co. Dhule. ... Respondents. ... Mrs.R.D.Reddy, A.P.P. for the Appellant. Mr.Mahesh Patil, advocate for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 13.08.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment 2 of acquittal rendered by learned Judicial Magistrate (F.C.), Dhule, in a Criminal Case bearing RCC No.57/1989, whereby the Respondents have been acquitted for the offences U/ss. 7(1) read with Section 2(ia)(a) read with Section 16(1) (A)(ii) and Section 17 read with Section 7(i) read with Section 2(ia)(h) read with Section 16(1)(a) (ii) and Section 17, Section 7(v) read with Rule 44-A(e) read with Section 16(i)(a)(ii) and Section 17 of the Prevention of Food Adulteration Act, 1954 and the Rules. 2. The Respondents are dealing in business of pulses and grains. The Respondent Nos.1 and 2 are the partners of the Respondent No.3 which is a firm. There is no dispute about the fact that Food Inspector P.W.2 Govind Namdeo Chaudhari, visited premises of the Respondent No.3 firm on 5.2.1987 at about 4-30 p.m. The Respondent NO.l Ajaykumar was present at the premises of the firm. The Food Inspector introduced himself to the Respondent No. 1. He purchased 750 grams of Masur Dal, which was stored in one gunny bag. He paid Rs.3.25 paise as price of the Masur Dal under a receipt. He served 3 notice in form No.(VI) on the Respondent No.1 intimating him that the sample was being collected for the purpose of analysis. He divided the Masur Dal in three equal parts. Each of the part was filled in dry, clean and empty polythene bags. The mouths of the polythene bags were closed by means of a candle flame. Thereafter, each sample packet was labelled and sealed as required under the Rules. The Food Inspector prepared a Memorandum panchanama in presence of panch witness. On very next day, he sent one of the sample packet which was duly sealed, to the office of the Public Analyst alongwith the specimen seal and information in form No.(VII). He separately sent another copy of information in form (VII) and specimen impression of seal to the Public Analyst by R.P.A.D. He deposited the remaining two packets of the sample packets with office of the Local Health Authority, Dhule. He received report from the Public Analyst which showed that the Masur Dal contained 0.25% of Lakh Dal (Kesari Dal) grains. A copy of the said report was forwarded to the Respondents. The relevant papers were forwarded to the Joint Commissioner, Food and Drugs 4 Administration, Dhule, with a request to accord sanction for the prosecution. After receiving the consent letter, the Food Inspector presented the complaint against the Respondents for the offences punishable under the Food Adulteration Act and the Rules. 3. The defence of the Respondents was of denial. The Respondent No.2 submitted that he was a sleeping partner of the firm. The learned Magistrate did not accept such contention. The Food Inspector and other two witnesses were examined in support of the case of prosecution. The learned Judicial Magistrate came to the conclusion that the offences alleged have not been made out. It was also noticed that the prosecution failed to prove due compliance of Rule 9-A, Rule 14 and also Section 13(2) of the Prevention of Food Adulteration Rules, 1955 and the Prevention of Food Adulteration Act, 1954. Consequently, the learned Magistrate acquitted the Respondents from the charges levelled against them. 4. Heard Mrs.R.D. Reddy, learned A.P.P. for 5 the State/appellant and Mr.Mahesh Patil, learned advocate for the Respondents. 5. At the outset, it may be stated that in appeal against order of acquittal, unless it is demonstrated that the acquittal is patently unreasonable or that the appreciation of evidence is perverse, interference is uncalled for only because some another view is possible. The impugned judgment will have to be tested on touch stone of the settled norms and having regard to the legal position that the order of acquittal can not be lightly brushed aside. It is important to notice that the defence did not dispute the fact about sale of 750 grams of Masur Dal to the Food Inspector in the relevant noon. The Memorandum panchanama (Exh.37) was also not disputed by the Respondents. The appointment of the complainant - P.W. 2 Govind Choudhari, as Food Inspector is uncontroverted. 6. The evidence on record shows that when the sample of Masur Dal was collected by the Food Inspector then there was no standard prescribed for 6 the same under provisions of the PFA Act. The version of P.W. 2 - Choudhari (Food Inspector) would make it amply clear that at the time of filing of the complaint case, there was no specific standard provided under the PFA Act for Masur Dal. He admits that the Respondent No.1 gave him bill issued by the vendor from whom the stock of Dal was purchased by the Respondents. He admits that he had issued notice to that Vendor and the same was replied. It is not explained at all as to why the said vendor of the Respondent was not roped in as a co-accused. 7. The report of Public Analyst would show that there was nothing found to infer that the Masur Dal was, in fact, adulterated as such. It was not found insect infested nor it was found to be injurious to health. The report of Public Analyst (Exh.23) would show that the Public Analyst did not give any opinion about the food article being adulterated as such. The only opinion expressed by him is that the Masur Dal was found to consist 0.25% of Lakh Dal grains. It is for such reason that the Respondents were allegedly charged 7 for committing breach of Rule 44-A(e) of the PFA Rules, 1955. "44-A. No person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale- (a) x x x x (b) x x x x (c) x x x x (d) x x x x (e) a mixture of Kesari gram (lathyrus sativus) and Bengal-gram (Cicer arietinum) or any other gram, (f) x x x x" A plain reading of Rule 44-A would make it amply clear that the use of Kesari Dal, which is 8 referred in Regional language (Marathi) as Lakh Dal, is prohibited with effect from date of notification in the official gazette, if such notification is published by the State Government. There is nothing on record to show that at the material time, the Government notification was published and, therefore, sale of Kesari Dal i.e. Lakh Dal was prohibited in the State of Maharashtra as on the relevant date. The Food Inspector did not refer to any such notification in his complaint nor stated anything about the same in his deposition. For this sole reason, it will have to be said that there is no proof regarding violation of Rule 44-A(e) of the PFA Rules. 8. The learned Judicial Magistrate has also assigned other reasons in support of judgment of acquittal. I do not find it necessary to deal with other aspects of the matter. For, the Food Inspector admitted the fact that there was no standard prescribed for the Masur Dal at the relevant time and, therefore, mere presence of negligible percentage of Lakh Dal in the same 9 could not be regarded as infringement of any particular provision of the Act or the Rules. Secondly, the prosecution did not produce anything on record to show that use of Lakh Dal or sale of Lakh Dal was prohibited at the relevant time. The learned Judicial Magistrate also considered the fact that Rule 9-A, as it stood at the relevant time, was violated and, therefore, the Respondents were prejudiced. The notice issued to the Respondents after receiving of the Public Analyst's report did not indicate in which Court the complaint was being filed. The prosecution was instituted after about couple of years of collecting the sample and since about more than 20 (twenty) years the sword of prosecution was hanging on heads of the Respondents. I find it difficult to interfere with the impugned judgment of acquittal after a long period of 20 (twenty) years and particularly when deficiency noticed by the Public Analyst does not come within the definition of the expression "adulterated" as defined in Section 2(ia) of the Food Adulteration Act, as it existed at the relevant time. Under these circumstances, I deem it proper to decline 10 from interference with the impugned judgment of acquittal. 9. In the result, the appeal is dismissed. The impugned judgment is confirmed. (V.R.KINGAONKAR,J.) asp/office/Crappeal11898