cra3994.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3994 OF 2010 The State of Maharashtra, Through Shri. Anant s/o Madhav Dhapare, Age-52 years, Food Inspector, Food and Drugs, Administration, M.S. Jalna ...APPLICANT. VERSUS Madanlal s/o Asaram Chandak, Age-52 years, (Vendor and Owner), R/o. M/s. Vaibhav Kirana, Balaji Mandir Road, Partur, Tq-Partur, Dist-Jalna. ...RESPONDENT. ... Smt.Y.M. Kshirsagar, A.P.P. for Applicant. Shri.Joydeep Chatterji Advocate for Respondent. ... CORAM: SHRIHARI P. DAVARE, J. DATE : 10TH JUNE, 2011. PER COURT : 1. Heard learned counsel for the parties. cra3994.10 2 2. This is an Application preferred by the Applicant - State seeking leave to file appeal challenging the Judgment and Order dated 6/5/2010 rendered by the Judicial Magistrate, First Class, Partur in R.C.C. No.195 of 2001, thereby acquitting the Respondent herein (original accused No.1) for the offence punishable under Section 16(1)(a) of the Prevention of Food Adulteration Act. 3. Admittedly, the Respondent herein (original accused No.1) namely, Madanlal Asaram Chandak faced the trial for the offence punishable under Section 16(1)(a) of the Prevention of Food Adulteration Act, who was the vendor; whereas the case against original accused No.2 namely, Rajendra Shantilal Nahar, owner of M/s. Nahar Tobacco Industries, was separated, as his presence could not be secured, as observed in Para 4 of the impugned Judgment. cra3994.10 3 4. To substantiate the charges levelled against the Respondent accused, the prosecution examined as many as three witnesses, namely, PW-1 Anant Madhav Dhapare, Food Inspector, PW-2 Ramesh Choundiye, Panch witness, PW-3 Arun Salave, clerk of Food and Drug Administration, Jalna. The Respondent accused was charged for having committed an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act for stocking and selling adulterated food articles i.e. "Sumo Gutakha". Besides the oral evidence, the prosecution relied upon the documentary evidence Exhibit 19 to 52 and Exhibit 65 to 68 including Public Analyst Report at Exhibit 38 and consent order at Exhibit 50. 5. After assessing the evidence on record, the learned trial Court observed that admittedly, Food Inspector has taken sample of "Sumo Gutakha" from the shop of accused Madanlal in Company cra3994.10 4 packed condition which was manufactured by Nahar Tobacco Industries, Ahmednagar, accused No.2. Public Analyst Report Exhibit 38, shows that there is contravention of Rules 32(e), 42(zzz) and 62 of the P.F.A. Rules, 1955. PW-1 Food Inspector Dhapare clearly admitted in his cross examination that contravention of Rules, 32, 42 and 62 is at the hands of accused No.2, who is manufacturer. Learned trial Court observed that accused No.1 Madanlal is entitled for the benefit under Section 19(2) of the Prevention of Food Adulteration Act. Apparently, there is no flaw in the said reasons. 6. As regards the consent order under Section 20 of the Prevention of Food Adulteration Act, it is contended that the sanctioning authorities must give reasons for giving sanction to prosecute the accused in public interest. However, in the present case, prosecution has not examined Joint Commissioner Shri. A.M. Satpute who has given the consent as required under Section cra3994.10 5 20(1) of the Prevention of Food Adulteration Act. PW-1 Shri. Dhapare has merely identified signature of Joint Commissioner Shri. Satpure on Exhibit 50, consent order. The prosecution has not given any reason for not examining Shri. Satpure, Joint Commissioner. Mere identification of the signature by the complainant does not prove the contents of the said consent order Exhibit 50. Hence, the learned trial Court observed that consenting authority has not applied his mind while giving consent to launch the prosecution, and consent order placed on record at Exhibit 50, is not proved legally. Apparently, said reasoning cannot be faulted with. 7. As regards, Rule 14 of the Act, learned trial Court observed that Food Inspector Dhapare has taken sample of "Sumo Gutakha" as packets in Company packed condition. Under Rule 14 of the Act, the sample is to be taken in clear and dry jars or bottles or any other suitable container. cra3994.10 6 So was not done by sampling authority, in the instant case. The procedures laid down under Rule 14 of the Act were apparently not observed and therefore there is apparent non compliance of Rule 14 of the Act. The observations made by the learned trial Court in that respect do not appear to be out of place. 8. Moreover, as regards the compliance of Rule 16(d) of the said Act, Food Inspector Dhapare deposed that while sampling he sealed each sample part at four places by means of wax seal which includes the seal at the knot of the thread, but Mr. Dhapare has not sealed each sample at five places including the seal at the knot of the twin, which amounts to non compliance of Rule 16(d) of the said Act. 9. Besides, learned trial Court also observed that there is non compliance of Section 13(2) of the said Act since there is no evidence cra3994.10 7 on record to show that copy of Public Analyst Report was sent to accused with letter and he received it, and therefore, serious prejudice is caused to accused Respondent. The observations made by the trial Court in that respect also appear to be proper. 10. Moreover, the learned trial Court further observed that Public Analyst received sample on 12th February, 1999 and the date of report is shown as 23rd March, 1999 and the actual date of analysis is not mentioned in the said report Exhibit 38 and considering the gap from the day of receipt of sample by the Public Analyst and the date of report, possibility of tampering the sample cannot be ruled out. The observations made by the trial Court in that respect, also cannot be faulted with. 11. In the circumstances, having comprehensive view of the matter, the view adopted cra3994.10 8 by the trial Court while acquitting the Respondent accused after assessing and analyzing the evidence on record, is a possible view and same does not appear to be perverse, and therefore, no interference therein is called for in the appellate jurisdiction, and hence, present Application deserves to be dismissed. 12. In the result, present Criminal Application which is sans merits, stands dismissed and leave to file Appeal is refused. 13. Record and Proceedings be sent back to the concerned Court. [SHRIHARI P. DAVARE, J.] asb/JUNE11/cra3994.10