( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 31 OF 1998 The State of Maharashtra, (through Shri Shaileshkumar Pralhad Adhav, Food Inspector) APPELLANT VERSUS Shri Guruling Umashankar Dawalbaje, R/o Near Laxmi Oil Factory, Behind Z.P., Parbhani. RESPONDENT ..... Mr. K.S. Patil, APP for the appellant/State. None for the respondent, though served. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th August, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement, rendered by learned Chief Judicial Magistrate, Parbhani, in a criminal case bearing R.C.C. No. 140/1992 whereby ( 2 ) the respondent came to be acquitted for offence punishable under section 7 (i) read with section 2 (ia) (i), (f), punishable under section 16 (1-A) (i), section 7 (III), read with Rule 50 punishable under section 16 (1) (a) (ii) and section 7 (v) read with Rule 44-A (b) punishable under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954. 2. Briefly stated, the prosecution case is that Food Inspector Shaileshkumar visited weekly bazar at village Pingli in the noon of 5th December, 1991. He noticed that the respondent was squatting at a place with stock of lakh dal meant for sale. He introduced himself as Food Inspector. The respondent informed that he had no license to sell the food articles comprising of grains, grams and lakh dal, etc. The Food Inspector purchased 750 grams of lakh dal against payment of Rs. 6.75 p. under a receipt. He then issued notice under section 14 (a) of the Prevention of Food Adulteration Act, 1954 (for short, “the PFA Act”). He gave notice in Form No. VI to the respondent. The lakh dal was divided in three (3) equal parts. Each of the part was filled up ( 3 ) in dry, clean and empty polythene bag. Each of the polythene bags was wrapped with a thick brown paper and was properly labeled. The wrappers were properly pasted and sealed. The sample packets were thereafter affixed with the specimen seal and code slips. One of the sample bag was sent to the office of the Public Analyst alongwith a specimen impression. A copy of specimen impression alongwith required forwarding letter was lateron separately sent to the Public Analyst. The Public Analyst reported that the lakh dal was not fit for human consumption and sale thereof was prohibited under Rule 44-A of the Prevention of Food Adulteration Rules, 1955 (for short, “the PFA Rules”). Consequently the respondent was prosecuted. The learned Chief Judicial Magistrate acquitted the respondent of the charges. The learned Magistrate considered the evidence tendered by the Food Inspector during the trial. In his testimony, the Food Inspector did not refer to his so called inquiry about license with the respondent. 3. Heard learned APP Shri Patil for the appellant/State. Though served, the respondent did not ( 4 ) appear. 4. There is nothing on record to show that the respondent was found vending the food grains and the dal without license. The contention of the prosecution is that lakh dal was prohibited article. The crucial aspect of the matter is as to whether it is proved that there was prohibition imposed on sale of lakh dal in the State of Maharashtra and, particularly, the area of village Pingli at the relevant time. Rule 44A of the PFA Rules provides that sale of kesri gram or keshri dal is prohibited with effect from such date as the State Government may by notification in the official gazette specify. The prosecution did not place on record relevant Government notification which imposed ban on sale of lakh dal in the area of village Pingli, at the time of visit of the Food Inspector. Unless there is proper evidence to show that there was prohibition imposed by the Government for vending of lakh dal, it cannot be said that the respondent violated the Rule 44A of the PFA Rules. It is on such short ground that the respondent came to be acquitted. There was no tangible ( 5 ) evidence placed on record to show that the lakh dal was otherwise injurious to health except the allegation that it was prohibited as per Rule 44A. No extraneous colour was found in the lakh dal. The report of the Public Analyst (Exh-29) shows that there was no adulteration noticed except the fact that sale of the lakh dal was prohibited vide Rule 44A of the PFA Rules. The version of PW1 Shaileshkumar purports to show that he collected the sample of lakh dal in the relevant noon against the payment of price of Rs. 6.75 p. vide receipt (Exh-15). He narrated as to how the three (3) sample packets were prepared by him, after filling up three (3) equal parts of the lakh dal in the polythene bags. His version does not show as to when the Government notification was issued and from what date the sale of lakh dal was prohibited. Unless it is duly proved that as on the date of collection of the sample by the Food Inspector, the ban was imposed as required under Rule 44A, it is difficult to say that the offence was made out. In this view of the matter, the impugned judgement of acquittal rendered by the learned Chief Judicial Magistrate can not be faulted with. ( 6 ) 5. In the result, the appeal is with merits and as such, is dismissed. The impugned judgement of acquittal is confirmed. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL31-98