( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 14 OF 1999 The State of Maharashtra through Shri Prashant B. Umrani, Food Inspector, Nanded, Food and Drugs Administration, M.S., Nanded. APPELLANT VERSUS 1. Shri Abdul Rasheed Abdul Nazeer, M/s Sajid & Company, Old Mondha, Nanded. 2. Shri Abdul Nazeer s/o Abdul Razak, R/o Old Mondha, Nanded. 3. Shri Abdul Sajid Abdul Nazeer, M/s Sajid and Co., Old Mondha, Nanded. 4. M/s Sajid and Company (Firm), Old Mondha, Nanded. RESPONDENTS ..... Mr. K.S. Patil, APP for the appellant. None for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th October, 2009] ORAL JUDGEMENT : 1. This appeal is directed against judgement of acquittal rendered by the learned Chief Judicial Magistrate, Nanded in Regular Criminal Case No. 193/1994 ( 2 ) whereby the respondents have been acquitted of the offences punishable under section 7 (i) read with section 2 (ia) (a), punishable under section 16 (1) (a) (iii) and 17 of the Food Adulteration Act, under section 7 (i) read with section 2 (ia) (b) punishable under section 16 (1) (a) (ii) and 17 of the Food Adulteration Act, under section 7 (1) read with section 2 (ia) (j), Rule 27, punishable under section 16 (1) (a) (ii) and 17 of the Food Adulteration Act and under section 7 (1) read with section 2 (ia) (m) punishable under section 16 (1) (a) (i) and 17 of the Food Adulteration Act. 2. On 15th June, 1993, complainant – Food Inspector Shri S.G. Kubde visited shop premises of M/s Sajid and Company, Nanded. He noticed that variety of food articles were stored in the shop premises for sale. The respondent No. 1 was salesman and the respondents No. 2 and 3 were the partners of the business of the shop. He disclosed his identity to them as Food Inspector. He purchased 750 grams of bleached dry ginger against payment of Rs. 30/-. He issued notice in Form No. VI to them. He divided the sample in three (3) equal parts. ( 3 ) He filled each of the part of dry ginger in empty, clean and dry bottles. He prepared the sample packets by closing mouths of each of the sample packet, put them under separate wrappers and packets which were duly labelled and sealed. He issued another notice to the respondents No. 1 to 4 as required under section 14 (a) of the Prevention of Food Adulteration Act. The respondent No. 1 gave a reply in writing to the said notice. One of the sealed sample packets was forwarded to the office of the Public Analyst, Aurangabad and was reached to the said office on 16-06-1993 by hand delivery. The specimen seal and letter in form No. VII were separately sent to the said office. The Food Inspector followed the necessary procedure of sending the remaining two (2) parts of the sample bottles to the local Health Authority alongwith the required documents. The report of the Public Analyst was received lateron. The report revealed that the dry ginger sample was not in conformity with the standard prescribed under the provisions of the Food Adulteration Act and the Rules. It was noticed that the sample contained impermissible colouring matter, namely, ultramarine blue. A copy of ( 4 ) the report was sent to the respondents. The prosecution was sanctioned by the Joint Commissioner of Food and Drugs Administration and thereafter, Food Inspector Shri Kubde S.G. filed the private complaint case in the Court of learned Chief Judicial Magistrate, Nanded, for the offences committed by the respondents under the provisions of the Food Adulteration Act and the Rules. 3. Heard learned APP for the appellant/State. None appears for the respondents. 4. At the trial, the prosecution examined in all three (3) witnesses in support of its case. Out of these withesses, PW3 Kailashnath is an independent panch. He did not support case of the prosecution. He was declared hostile. Nothing of much significance could be gathered from his cross-examination. The version of PW1 Prashant Umrani is also of no much significance. He is the successor of the Food Inspector – Shri S.G. Kubde. He carried out some work which preceded filing of the complaint case. He has no personal knowledge as regards the collection of sample ( 5 ) from the premises of the respondent No. 4 by Food Inspector – Shri Kubde. 5. The testimony of PW2 Shri Kubde, the Food Inspector purports to show that he visited the business premises of the respondents on 15-06-1993. He collected the sample of dry ginger from a wooden box containing stock of 30 kgs. He suspected that the bleached dry ginger could be adulterated. He narrated as to how memorandum of panchanama was drawn and the notices were given to the respondents. He narrated the procedure followed by him while sampling the dry ginger and preparing three (3) sealed packets. He admits that the respondents furnished necessary information regarding the vendor who had supplied the dry ginger to them. He further admits that on 16-06-1993, he had sent letter to M/s Savitha Spices i.e. the supplier. Admittedly, the respondent No. 4 was the wholesale dealer and not the manufacturer of the dry ginger. The evidence on record shows that the purchase bill (Exh-57) was produced by the respondents. The supplier i.e. M/s Savita Spices, Cochin was not made accused. There was implied warranty ( 6 ) in favour of the respondents. The sample was collected from a wooden box which was stored in the shop premises. The wooden box was opened when Food Inspector Shri Kubde purchased 750 grams of bleached dry ginger. It was, therefore, necessary for the Food Inspector to proceed against the supplier/manufacturer i.e. M/s Savitha Spices, Cochin. There is no tangible reason given as to why no efforts were made to locate whether the information furnished by the respondents was true or false. 6. Another important reason given by the learned Chief Judicial Magistrate in support of the acquittal is that the percentage of colouring matter was not shown in the report of the Public Analyst nor the details of tests carried, nor to locate the presence of colouring matter, have been stated in the report of the Public Analyst. Therefore, the report of the Public Analyst could not be implicitly relied upon. The standard prescribed for dry ginger is as envisaged in Entry No. A.05.13. The sample did not violate any other standard except that it was not found free from added colouring ( 7 ) matter. The learned Chief Judicial Magistrate also noticed that the consent letter issued by the Joint Commissioner, Food and Drugs Administration, reveals non-application of mind to the documents furnished by the Food Inspector. The consent letter showed that no colour is permitted to the dry ginger and, therefore, sanction was given. That is not the case of prosecution. The prosecution case would show that ultramarine bluish colour was added and, therefore, it ought to have been specifically shown by the sanctioning authority in order to consent the prosecution. In any case, in absence of efforts to join the supplier/manufacturer of the dry ginger as an accused, the impugned judgement of acquittal does not require any interference. 7. In the result, the appeal is dismissed. The impugned judgement of acquittal is confirmed. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl14-99