-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 824 OF 2002 CRIMINAL APPEAL NO. 824 OF 2002 CRIMINAL APPEAL NO. 824 OF 2002 The State of Maharashtra (at instance ¦ .. Appellant. of Shri V.G.Pujari, Food Inspector, ¦ (Org.Complainant) Food and Drug Administration, ¦ M.S., Pune. ¦ V/s. 1. Mr.Sanjay Dayaram Agarwal ¦ Vendor & Partner of Sara traders, ¦ situated at 56A, Nana Peth, Pune ¦ and also a Proprietor of M/s. Sara ¦ Enterprises, situated at 6A, ¦ Ramabai Ambedkar Rd.,Pune. ¦ 2. M/s. Sara Traders, 56A, Nana Peth, ¦ .. Respondents. Pune -2. ¦ (Org.Accused). --- Mr.A. S. Shitole, APP for the Appellant-State. Mr.Nivas Patil for the Respondents. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 13TH MARCH, 2009 DATED : 13TH MARCH, 2009 DATED : 13TH MARCH, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This appeal by the State is directed against the judgment and order dated 26.12.2001 passed by the Chief Judicial Magistrate, Pune in R.C.C. No. 45 of 1995, which was instituted against the respondents accused under the provisions of Prevention of Food Adulteration Act, 1954 (for short, hereinafter referred to as "PFA Act"). The article of food being Pepsi -Cola (Orange), the sample -: 2 :- whereof had been taken on 9th of May, 1994. 2. After obtaining the sample of pepsi cola (orange) on 9th of May, 1994, PW-1 Food Inspector,completed the usual formalities connected therewith and after receipt of Public Analyst’s report dated 14.06.1994, the present prosecution was instituted against the respondents accused on the charge that the food article in question was adulterated within the meaning of the PFA Act. The defence was one of the total denial. 3. The prosecution in order to establish guilt of the respondents accused examined three witnesses namely, PW-1 Complainant Food Inspector, PW-2 Local Health Authority and PW-3 Panch. The prosecution also relied upon the report of the Public Analyst at Exh.36. The learned Magistrate after going through the evidence led by the prosecution on record acquitted the respondents accused of the charge under the Food Adulteration Act for non-compliance of section 11(a)(b) of the PFA Act and Rules 19 and 20 of the PFA Rules and also on the ground that the sanction to prosecute was not legal and valid. 4. Mr. Nakhawa, the learned APP submitted that the provisions of Rules 19 and 20 are directory and therefore, non-compliance of the same should not have resulted in -: 3 :- respondents’ acquittal. Mr. Patil, the learned counsel appearing for the respondents, per contra supported the impugned judgment and order. He submitted that the learned Magistrate has approached the matter from correct point of view and therefore, no interference is required in the aforesaid appeal. 5. Having heard the learned counsel of both sides and having gone through the evidence led by the prosecution on record, I find no merit in the appeal. 6. The sample of pepsi cola (orange) was taken on 9.5.1994 and the public analyst report is prepared on 14.06.1994. There is no evidence on record about the exact date on which the sample of pepsi cola yellow is analysed and therefore, inference is to be drawn that the sample was analysed on 08.06.1994 i.e. 30 days. 7. PW-1, Food Inspector in his cross-examination admitted that the pepsi cola comes under the definition of ice candy given in Appendix ‘B’. Under Rule 19 of the said Rule any person taking sample of any food for the purpose of analysis under the said Act may add preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for the analysis. Formalin is to be used as a preservative in a sample of -: 4 :- milk, ice candy etc. A report of public analysis at Exh.72 shows that the presence of algal growth indicate that the sample is prepared in insanitary condition and it is contaminated and unfit for human consumption. The evidence of PW-1 Food Inspector does not indicate that any preservative was added in the alleged sample of pepsi cola. Due to non addition of the formalin as preservative in the sample and due to lapse of long period for analysis alleged algal might have been formed in natural process. 8. Similar question fell for consideration before the learned single Judge of this court in the case of State of State of State of Maharashtra Maharashtra Maharashtra vs. Sewaram Aildas Aamesar Sewaram Aildas Aamesar Sewaram Aildas Aamesar reported in 1979 (II) Prevention of Food Adulteration Cases 375. The learned single Judge on the basis of earlier two division bench judgments made following observations : "Rule 20 is directory does not, therefore, mean that its nonexistence and /or that a total breach thereof is also permitted. Total non-compliance of the said rule is a position altogether different from a substantial compliance of the said rule. In the context, "directory" can only mean that strict compliance would not be insisted upon by the Courts but it cannot be that total non-compliance will also be excused." 9. The facts of the present case and the facts of the -: 5 :- Sewaram’ s case (supra) Sewaram’ s case (supra) Sewaram’ s case (supra) are similar. The article of food in Sewaram’s case was ice candy and in the present matter it is pepsi cola yellow, which is included in the definition of ice candy. In Sewaram’s case sample was drawn on 7th of August, 1972 and same was analysed on 30th September, 1972. In the present case, sample was drawn on 9th of May, 1994 and the report of analyzer was given on 14.06.1994. In both the cases preservative formalin was not added. In view of the similar facts, the above observations of the learned single Judge are applicable to the present case. 10. In the facts and circumstances mentioned above, the learned Magistrate has given benefit of doubt to the accused. I do not find any error in the approach adopted by the learned Magistrate. The learned Magistrate has taken a possible view, which cannot be interfered in an appeal against acquittal. 11. In the result, the appeal is devoid of any merit and the same is accordingly dismissed. (R.V.MORE,J.) .....