( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 74 OF 2000 Mohmed Munaf Abdul Rashid .. Appellant Age. 42 years, Occ. Service - Food Inspector, Ahmednagar. Municipal Council, Ahmednagar, R/o. Ahmednagar, Dist. Ahmednagar. Versus 1) Shri Nandkishor Krishnalal Gakhar .. Respondents Vendor & Proprietor of - M/s. Shriram Kirana Stores, Pipeline Road, Savedi, Ahmednagar. 2) The State of Maharashtra Shri K.N. Lokhande h/f. Shri V.P. Latange, Advocate for the appellant. Shri V.S. Bedre, Advocate for respondent No.1. Shri B.R. Khekale, A.P.P. for respondent No.2/State. CORAM : P.R. BORKAR,J. DATED : 05.02.2010 ORAL JUDGMENT :- 1. This is an appeal filed by the Food Inspector, Ahmednagar Municipal Council, Ahmednagar (original ( 2 ) complainant) being aggrieved by the order of acquittal passed by the Chief Judicial Magistrate, Ahmednagar, in R.C.C. No. 253 of 1996, decided on 14.01.1999, whereby present respondent No.1 was acquitted of offence punishable under section 7 (i) read with 2 (ia) (a), 2 (ia) (b), 2 (ia) (h) and section 7 (ii) read with section 2 (ix) (d) and 7 (v) read with Rule 23 of the Prevention of Food Adulteration Act (for short “P.F.A. Act”). 2. Briefly stated it is case of the appellant that he was working as a Food Inspector with Ahmednagar Municipal Council, Ahmednagar (as it was then). His name was notified as Food Inspector in the official gazette of the Government of Maharashtra dated 14.09.1988. On 04.01.1996 at 2.00 p.m. the complainant along with Food Insector Bachkar and independent witness Surindar Nandan visited shop premises belonging to respondent No.1 It was a grocery shop. The appellant purchased 600 gm. Saunf for analysis. He paid Rs. 33/- as price. He divided the sample into three equal parts, put each part in dry, clean polythene bag. The bags were closed, labelled and sealed. Other usual procedure was followed. Thereafter, panchanama was drawn. One part of the ( 3 ) sample was sent to the Public Analyst and other two parts were sent to Local Health Authority. The Public Analyst gave report that the sample contained extraneous non-permitted yellowish colouring matter and therefore did not confirm to the standard of fennel (Saunf) as whole as per P.F.A. Rules, 1955. Thereafter, complaint was filed. 3. The acquittal is based on two grounds. Firstly, it is stated that the sample was not taken as required by Rule 14. Secondly, it is held that though name of the appellant was notified in the official gazette, he was completely silent regarding his educational qualification and training and therefore he was not competent to collect the sample. 4. Heard Adv. Shri K.N. Lokhande h/f. Adv. Shri V.P. Latange for the appellant, Adv. Shri V.S. Bedre for respondent No.1 and A.P.P. Mrs. B.R. Khekale for respondent No.2. 5. So far as first point is concerned, it is argued by Adv. Shri Lokhande that it was held by the Division Bench of Kerala High Court in Harishankar V/s. Food Inspector, 1988 ( 4 ) (II) Prevention of Food Adulteration Cases 86 that Rule 14 of P.F.A. Rules requires that sample should be taken in clean dry bottles or clean dry jars or in other suitable container. They have to be closed sufficiently tight to prevent entrance of moisture. Where sample taken is dry substance, the container should be closed tight to prevent leakage and evaporation to prevent entrance of moisture. It is further observed that suitability of container would depend upon nature of the food article dealt with. The rule itself does not create any inherent limitation or restriction except that the container must be suitable. Thus, it is held that where quantity of peas dhall is taken in polythene bags, there is no irregularity or illegality. In that case the Division Bench held that the sample could have been taken in polythene bag. 6. The learned advocate for the appellant referred to case of State of Punjab V/s. Raman Kumar, 1998 CRI.L.J.737, which is Full Bench ruling of Punjab and Haryana High Court. Therein sample of chili powder was taken in polythene bag. In para 21, 24 and 25 following observations are made :- ( 5 ) “21. In our considered view, polythene containers or a wrapper of strong thick paper cannot confirm to a definition of container as contained in Rule 14 of the Rules. The polythene bags or a thick paper have got a chance of being pierced. They are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. A thick paper packet has the chance of even being completely wet and again is unable to prevent entering moisture into it. There are every chances of such type of containers being affected as stated above not by design but even by chance when in transit i.e. after the sample is taken by the Food Inspector in such containers and thereafter it reaches the laboratory for final analysis. x x x x x x 24. In view of our discussion made above, we cannot consider a container made of polythene and a thick paper wrapper as a suitable container as contemplated under Rule 14 of the Rules. 25. We respectfully disagree with the views expressed by the Hon’ble Judges in Food Inspector, Bhimavaram Municipality’s case (1994 Cri LJ 414) (supra), wherein it has been held that a polythene container is a suitable container as defined in Rule 14 of the Rules. The reference is, thus, returned accordingly by holding that a polythene container or a thick paper wrapper are not suitable containers as envisaged under Rule 14 of the Rules.“ . Similarly our High Court in State of Maharashtra V/s. Prabhudas Atamal Baktani, 1986 (3) Prevention of Food Adulteration Cases 221, has observed in para 5 as under :- ( 6 ) “5. Rules have been framed for sealing, fastening and despatch of samples. Rule 14 prescribes the manner of sending samples for analysis. The samples were required to be collected in clean dry bottles or jars or other containers which can be closed sufficiently tight to prevent leakage, evaporate or in case of dry substance, entrance of moisture and that container is required to be carefully sealed. The fact that the sample was collected in plastic bag is not in dispute. Taking the sample in plastic paper is in violation of rule 14 and that by itself is fatal to the prosecution. The rule as stated above requires that the sample should be sent to Public Analyst in dry and clean container and it is not contemplated that the sample should be sent in a plastic bag which can easily be tampered with. Apart from this violation, it is incumbent upon the Food Inspector to completely wrap the container by means of a strong paper, the ends of which should be neatly folded in and affixed by gum or other adhesive. The paper cover should then be sewn by strong twine or thread and their knots covered by means of sealing wax. There is no evidence worth the name showing compliance of these rules. Clearly enough the manner of packing and sealing of samples are in contravention of rule 16 (b) and (c) and these contraventions are fatal to the prosecution. Yet another contravention of rule 17 was also pointed out during the arguments, but it is not necessary for me to deal with it. . In that case the sample was taken of Lakh dal and Lakheri. 7. It is observed by this Court in para 9 of the case ( 7 ) of The Ahmednagar Municipal Council V/s. Dullabhdas, in Criminal Appeal No. 271 of 1999 decided on 01.12.2009 that it all depends upon the facts and circumstances and the nature of article of which sample taken, so also it would also depend upon nature of adulteration found and merely because sample is taken in polythene bag, unless possibility of tampering is reasonably made out, it cannot be laid down as general rule applicable to all cases in all circumstances that sample should not be taken in polythene bag. 8. In the present case, sample was of Saunf. Public Analyst’s report Exh.36 shows the sample contained extraneous non-permitted yellowish colouring matter, which does not confirm to the standard of fennel (Saunf) as per P.F.A. Rule, 1955. It is stated that extraneous organic percentage by weight was 0.51. The matter in organic percentage by weight was 0.03. 9. The advocate for respondent No.1 drew my attention to entry A.05.11 of Appendix “B” of P.F.A. Rules, so also entry A.05.22 and argued that by the amended rules he pointed out that as per A.05.11 extraneous matter not more than 2% by ( 8 ) weight was allowed. 10. Entry A.05.11 is as follows :- “A.05.11 - Fennel (Saunf) whole means the dried ripe fruit of Foeniculum vulgare P. Miller Var. Vulgare. It shall have characteristic flavour free from foreign odour, mustiness and rancidity. It shall be free from mould, living and dead insects, insect fragments, rodent contamination. The product shall be free from added colouring matter and any harmful substance. It shall confirm to the following standards :- (i) Extraneous matter -Not more than 2.0 per cent weight. (ii) Defective seeds -Not more than 5.0 per cent weight. (iii)Moisture -Not more than 12.0 per cent weight. (iv) Total ash on dry basis--Not more than 10.0 per cent weight. (v) Ash insoluble in dilute HCL on dry basis - -Not more than 2.0 per cent wt. (vi) Volatile oil content on dry basis – Not less than 1.0 per cent by wt. (vii) Salmonella -Absent in 25g (viii) Edible sees other than fennel – Absent. (ix) Insect damaged matter - Absent.” 11. The learned advocate for respondent No.1 argued that the report of the Public Analyst does not indicate whether the extraneous non-permitted yellowish colouring matter was harmful and whether it was organic or non-organic ( 9 ) substance. He argued that the colouring matter was not identified during the analysis. The colouring substance is not identified as one other than 2% extraneous matter permitted by the rules. This is appeal against acquittal. The view taken by the Trial Court cannot be said to be totally erroneous or improbable, though another view is possible. 12. So far as observation regarding right of the appellant to take sample and whether he was duly qualified are concerned, in this appeal along with Criminal Application No. 629 of 1999, the documents are produced to show that besides notifying appointment of the complainant as Food Inspector in the Maharashtra Government gazette of October, 20, 1988, he has also produced document showing that he had undergone necessary training of three months as required by Rules. It is also argued that the Food Inspector was not called upon to state his qualification and training as Food Inspector and without giving him opportunity, merely, due to omission by Assistant Public Prosecutor to ask questions about his educational qualification and training, inference was drawn that he was not duly qualified. This is patently ( 10 ) unwarranted. If there was any doubt in the mind of the Court, it ought to have recalled the Food Inspector to explain about the omission. In my considered opinion, the Trial Court should not have so lightly observed regarding eligibility of the Food Inspector to be appointed as Food Inspector. Once his appointment was notified in Official Gazette, in the criminal case of present nature, that was not an issue to be decided by the Magistrate. The appointment of the Food Inspector can be challenged before the appropriate forum by filing appropriate proceedings. So, the observations by the Trial Court to that extent in para 10 of the judgment are hereby quashed and set aside. 13. In the circumstances, this Court does not want to interfere with the discretion used in passing the order of acquittal in this appeal against acquittal. Therefore, this appeal is dismissed. [P.R. BORKAR,J.] snk/2010/FEB10/crap74.00