IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2375 OF 2011 THE STATE OF MAH THR. M D SHAH VERSUS MANOJ RAMCHANDRA AGRAWAL AND ORS ... Advocate for Petitioners : Mr.S.G.Nandedkar. Mr. K. H Parekh Adv. For R/1 To 6 ... CORAM : SHRIHARI P. DAVARE, J. Dated: December 07, 2011 ... PER COURT :- 1. Heard learned respective counsel for the parties. 2. This is an application preferred by the applicant/original complainant seeking leave to file appeal, challenging the judgment and order of acquittal dated 25.1.2011, rendered by Chief Judicial Magistrate, Jalna in RCC No.650/2005, thereby acquitting the respondent/original accused for the offence p/u/ss. 7(1) r/w section 2 (ia), 2 (ia) (m) PFA Act and 24 and 40 (2) of PFA Rules punishable under section 16 and 17 of the Prevention of Food Adulteration Act (herein after referred to as PFA Rules). 3. I have perused the impugned judgment dated 25.1.2011 and Record and Proceeding with the assistance of learned counsel for the parties. 4. To substantiate the charges levelled against the accused, aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD prosecution has examined as many as three witnesses i.e. PW 1 Milind Damji Shah – complainant Food Inspector, PW 2 Ashok Shivram Hurgat and PW 3 Kishor Lachiram Nathani panch witness. At the outset, P.W. 1 Milind Shah Food Inspector has categorically stated in his deposition that he obtained the sample of Nutrela Vanaspati in three clean, dry, empty polythene bags, however rule 14 of P.F.A rules prescribes that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. Hence, it is apparent that the Food Inspector PW 1 has violated the rule 14 of the PFA Rules and observations to that effect by made learned trial court cannot be faulted with. 5. Moreover, PW 1 Milind Shah Food Inspector admitted in the cross examination that P.A report was received by his office after forty days of its delivery to the Laboratory. In the said context, Rule 7 Sub rule 3 of PFA Rules contemplates that “Public Analyst shall, within a period of [forty days] from the date of receipt of any sample for analysis, [send by registered post or by hand] to the Local (Health) Authority a report of the result of such analysis in Form III:.” Hence, it is apparent that there is breach of rule 7 sub rule 3 of PFA Rules and as such observation to that effect made by learned trial court are not out of place and reliance can be placed on the judicial pronouncement of this Court in the case of The State of Maharashtra Vs. Deepchand Khushalchand Jain and others reported at Prevention aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD of Food Adulteration Cases page 174. 6. Moreover, it has come in the evidence that consent was given by Mr. Khapekar, who was the in-charge Joint Commissioner and he himself was not Joint Commissioner. Pertinently, said Mr. Khapekar has not been examined by the prosecution and observation made by the learned trial court that prosecution launched by the complainant on the basis of such consent is not valid and proper because in charge Joint Commissioner has not been empowered as per the law to give the consent and said observation made by the learned trial court cannot be faulted with. Reliance can be placed on the judicial pronouncement in the case of The State of Gujarat Vs. Samirabhai Harishankarbhai Raval reported at 2009 (1) FAC 551. 7. As regards filing of the complaint, learned trial court has made observation in paragraph no.32 of the judgment that it appears that there is delay of one year and one month in filing the complaint, which apparently, has not been explained by the prosecution. Accordingly, observations made by learned trial court that there are omissions, contradictions and in consistencies in the complaint and the deposition of PW 1 and non examination of consenting authority, public analyst and sampling assistant has also weakened the case of prosecution, do not appear to be out of place. 8. In the circumstances, having comprehensive view of the matter, the view adopted by learned trial court, after scrutinizing and analyzing the evidence on record, while acquitting the accused is a aaa IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD possible view and same does not appear to be perverse. Moreover, reasoning given by the learned trial court while acquitting the accused apparently cannot be faulted with. Hence, no interference therein is called for in the Appellate jurisdiction and therefore, present application deserves to be rejected. 9. In the result, present application which is sans merits, stands dismissed. Leave to file appeal is refused. R & P be sent back to the concerned court. ( SHRIHARI P. DAVARE, J. ) ... aaa