-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 225 OF 1994 The State of Maharashtra : .. Appellant. at the instance of Shri M.N.Torse : Food Inspector, Bandra, Bombay. : V/s. 1. Shri Gangaram Bhagwant Mangaonkar : Servant & Vendor. : : 2. Shri N.K.Mubal, Director of : M/s. K.T.Kubal & Co. Pvt.Ltd., : : 3. Firm M/s. K.T.Kubal & Co. Pvt. : .. Respondents. Ltd., 21, B.G.K.Road, Naigaum, : (Org.Accused) Bombay - 400 014. : ---- Mr. A.S.Shitole, APP for the State. Mr. A.P. Mundargi, Sr. Advocate i/by Mr.G.H.Keluskar for the Respondent Nos. 1 to 3. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 12th FEBRUARY,2009 DATED : 12th FEBRUARY,2009 DATED : 12th FEBRUARY,2009 ORAL JUDGMENT .: ORAL JUDGMENT .: ORAL JUDGMENT .: 1. By this appeal the appellant- State challenges the order dated 01.09.1993 passed by the learned Additional Chief Metropolitan Magistrate’s 46th Court, Mazgaon, Mumbai, acquitting the respondents of the offence punishable under section 7, 2(ia) (m) read with sections 16 and 17 of Prevention of Food Adulteration Act. -: 2 :- 2. The respondent no.3 is the firm viz. M/s. K.T.Kubal & Co. of which respondent no.2 is the director and respondent no.1 is servant. On 5th of February, 1987 at about 10.30 hours, Food Inspector - Shri S.T.Phadke alongwith witness- B.M.Ranshivare and sampling assistant visited the premises of respondent no.3 at Naigaum, Bombay. At that time, the respondent no.1 was present in the firm and was selling food articles, namely, Dhana powder, khaskhas and garlic chilli sauce etc.. Shri Phadke disclosed his identity and intention to visit the premises of respondent no.3 and further disclosed that he would like to draw samples of the articles for the purpose of test and analysis. Thereafter, Food Inspector Phadke demanded and purchased 600 grams of Dhana powder, 600 grams of Khaskhas and 600 grams of Garlic Chilli sauce and paid price for the same to respondent no.1, who gave cash memo. However, the present case pertains to the garlic chilli sauce. On completion of sampling and its panchanama it were dispatched to the Public Analyst for the purpose of analysis . Public Analyst declared the said sample as adulterated. After getting of consent, the compliant came to be lodged against the respondents accused. 3. In order to prove guilt of the respondents -: 3 :- accused, the prosecution adduced evidence of five witnesses, namely, PW-1 Arvind Shripad, who produced the garlic chilli sauce sample alongwith some papers; PW-2 Dharmavar Acharya, working as Office Superintendent in the Office of Executive Health Officer, BMC; PW-3-Shrikant Trimbak Phadke- Food Inspector, Bombay who purchased samples of garlic chilli sauce; PW-4 is Narsinha Raghunath Deshpande, the sanctioning authority and PW-5 Mansinghrao Nivrittin Torse, who filed the complaint. 4. The learned Additional Chief Metropolitan Magistrate framed the charge against the respondents for the offence punishable under section 7 read with section 2(ia)(m), r/w sections 16 and 17 of PFA Act to which the accused pleaded not guilty. 5. As already stated, the learned Additional Chief Metropolitan Magistrate acquitted all the respondents for the offence for which they were charged. Mr. Shitole, the learned APP after taking me through the deposition of witnesses submitted that there is enough evidence on record to prove the offence for which the respondents- accused are charged. He, therefore, submitted that the learned Magistrate committed error in acquitting the respondents. -: 4 :- 6. Mr. Mundargi, learned Senior counsel for the respondents accused supported the order, acquitting the respondents. He submitted that there are several lacunas in the prosecution case. He further submitted that the mandatory provisions of the Prevention of Food Adulterations Act, 1954 have not been followed. He also submitted that the prosecution could not prove the sanction by the competent authority to initiate prosecution and therefore, no interference is required. 7. After hearing the learned counsel for the parties, I find merit in the submission of Mr. Mundargi that the prosecution failed to prove that sanction was given by the competent authority to initiate prosecution and therefore, there is no need to go into other aspects of the matter. There is no dispute that in order to initiate prosecution sanction of the Competent Authority viz. Joint Commissioner is required. It is specific case of the prosecution that in the present case sanction was given by the Joint Commissioner, namely, PW-4 Narsinha Raghunath Deshpande. The PW-4, in his evidence deposed that he was transferred from Pune to Gr. Bombay by order dated 21.11.1985 and he was directed to hold additional charge of the post of Joint Commissioner. In the cross-examination he has admitted that the Government of Maharashtra has not published any Gazette appointing him -: 5 :- as Joint Commissioner, FDA Bombay and he retired as Assistant Commissioner. He claimed that he was holding additional charge of the post of Joint Commissioner, however, there is nothing on record to substantiate his claim. 8. On the basis of the evidence of PW-4, the learned Magistrate disbelieved the prosecution story that Shri Deshpande PW-4 was authorised to issue sanction as Joint Commissioner and held that the sanction given by PW-4 Deshapande becomes bad in law and cannot be accepted. As stated above, it was specific case of the prosecution that the respondent no.4 in his capacity as Joint Commissioner FDA, Bombay has given sanction and since the same is not proved, the learned Magistrate was justified in acquitting the respondents. I do not find any error in the approach adopted by the learned Magistrate. The incident was of 1987 and the respondents came to be acquitted by the impugned order dated 01.09.1993. The learned Magistrate has taken a possible view and in an appeal against acquittal the same cannot be substituted by another possible view. The appeal is devoid of any substance and the same is accordingly dismissed. (R.V.MORE,J.)