1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.750 OF 2002 The State of Maharashtra ..Appellant -versus Rajaram Sakharam Kokate Vendor and Proprietor of M/s Hotel Indira Bhuvan, Mangale, Tal.Shirala, District:Sangli .. Respondents Mr.A. S. Shitole, APP for the state Mr. S. A. Pawar, for the respondent. CORAM: R. V. MORE, J DATED: 20th March,2009 Judgment 1. The State of Maharashtra preferred present appeal, taking an exception to the order of the learned Judicial Magistrate First Class, Shirala, recording acquittal of the respondent accused of the offence under section 7(i)read with section 2 (ia) (a), 2(ia) (m) punishable under section l6 of the Prevention of Food Adulteration Act, l954. 2. The prosecution case in brief is as under:- That the respondent is a Vendor and Proprietor of Hotel Indira Bhuvan, Mangale. On 13.1.1993, at about 12.30 hours, the Food 2 Inspector Mr.Mulla, alongwith panch witness Mr.Ananda Ganpati Shinde, visited Hotel Indira Bhuvan. Respondent was present in the hotel. The Food Inspector Mr. Mulla, disclosed his identity and purpose of visit. He purchased 600 grams chilly powder from the respondent and made payment thereof. The Food Inspector Mulla divided 600 gram Chilly Powder in three equal parts and was filled in three dry, clean and empty glass bottles. Then he drawn the memorandum of Panchanama at Exhibit 26, and sealed the bottles after following the prescribed procedure under the said Act. The signatures of the panch witness and the respondent were obtained and one of the sample bottle was sent to Public Analyst on 14.1.1993. The remaining two sample bottles were sent to Joint Charity Commissioner, FDA MS, Sangli. The report of the Public Analyst was received on 23.2.1993. As per report, sample of chilly powder was adulterated. Thereafter Food Inspector Mr.Mulla, forwarded the relevant documents to the Joint Charity Commissioner, FDA,Sangli for obtaining sanction and after receipt of the sanction, the complaint came to be filed by Mr.Halgi, Food Inspector, on 19.10.1993. 3 3. The charge was framed against the respondent accused under section 7(i)read with section 2(ia) (a), 2(ia) (m) punishable under section l6 of the Prevention of Food Adulteration Act, l954. It was read over and explained to the accused. The respondent pleaded not guilty and and claimed to be tried. His defence was of total denial. 4. The prosecution in order to prove the guilt of the respondent, examined P.W. 1, Food Inspector Mr.Mulla, P.W.2, S.B.Halgi, and P.W.3, Mr.Ananda Ganpati Shinde-panch witness. The learned Magistrate after going through the evidence led by the prosecution, held that the prosecution failed to prove that the sample of chilly powder was taken from the respondent accused. It was also held that the prosecution failed to prove sample of chilly powder was adulterated one. The learned Magistrate also found that the consent was given without application of mind and consequently acquitted the respondent. 5. Having heard the learned Counsel for the respective parties and having gone through the evidence led by the prosecution, I do not find any merit in the appeal. 4 6. In order to prove the charge against respondent, prosecution must establish that the sample of chilly powder was taken from the respondent accused. It is the case of the prosecution that PW-1, Food Inspector Mr.Mulla, visited the Hotel of respondent No.l on 13.1.1993 and purchased 600 grams of chilly powder from the respondent. It is further case of the prosecution that the chilly powder was purchased in the presencs of PW-3 panch witness Anand Shinde and thereafter the purchased chilly powder was divided into three equal parts and filled in three clean, dry and empty glass bottles. The samples were thereafter sealed. As per the procedure and signatures of the respondent and panch witness were obtained. P.W.3 Anand Shinde, has not supported the prosecution case. He denied that on 13.1.1993, he had been to Hotel Indira Bhuvan, alongwith the PW-1, Mr.Mulla. He also denied that P.W.-1, Mulla has taken sample of chilly powder from the respondent in his presence. He further admitted that the PW-1, Mulla has obtained his signature on chilly powder sample and memorandum of panchnama in his shop. Thus, the prosecution failed to prove that the sample of chilly powder was purchased from 5 respondent in presence of independent panch. Section l0(7) of the Prevention of Food Adulteration Act, l954, mandates that the sample must be taken in the presence of independent witness. Since the compliance of the provision u/s 10(7) of the said Act is not proved, the respondent is entitled for benefit of doubt. The learned Magistrate considered this aspect in detail and held that the prosecution failed to prove that the sample of chilly powder was taken from the respondent accused. I do not find any error in this finding. Since the prosecution failed to prove that the sample of chilly powder was taken from the respondent No.l,other points viz sample of chilly powder is not injurious to the health, the consent of competent authority is not valid are not necessary to be gone into. Appeal is devoid of any substance and the same is accordingly dismissed. (R.V.MORE, J)