1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.199 OF 2009. The state of Maharashtra, at the instance of Shri A.S.Gawate, Food Inspector, Food and Drug Administration, appellant/ (M.S.) Beed. ori.complt. versus 1. Shri Uttamchand Jugaraj age 42 years, occupation Proprietor of M/s Mahavir Provision Stores, H.No.1147 Kada, Taluka Ashti,Dist.Beed. 2. Shri Arvind Bhaudas Avhad, age 32 years, Manager of Nominee of M/s Prakash Food Limited, Plot No.E-4,E-45, M.I.D.C.Kurkumbh, Taluka Daund, District Pune. 3. M/s Prakash Food Limited, Plot No.E-4,E-45,MIDC,Kurkumbh Respondents Tq.Daund,Dist.Pune. ori.accused Shri K.M.Suryawanshi, APP for the appellant-State. 2 Coram: P.R. Borkar J. Date : Nov.6, 2009. P.C. 01. Heard Shri K.M.Suryawanshi, learned A.P.P. for the appellant-State. 2. This is an application seeking leave to file appeal against order of acquittal passed by Judicial Magistrate, First Class, Asthi, District Beed in Regular Criminal Case No.55 of 2005 decided on 4.8.2008, whereby respondents-accused were acquitted of offence under Section 7(1) read with section 2(i-a) and 2(i-a)(m) punishable under Sections 16 and 17 of the Prevention of Food Adulteration Act, 1954. 03. Briefly stated, it is the prosecution case that the Food Inspector Shri A.S.Gawate along with panch witness Shri Sanjay Kataria had visited and inspected the grocery shop of Shri Kantilal Dhanaraj Mutha at Asthi. The Food Inspector purchased 600 ml. of Vanaspti (of Anand company) in three poly packets each of 200 ml.size besides 3 750 gram refined sunflower oil for the purpose of analysis and paid Rs.85/= as price of the samples taken. Thereafter he complied with usual formalities. The sample of Vanaspati Ghee was sent to public analyst and as per the report received from him, it was revealed the melting point of the sample of Vanaspati ghee was 43 degree centigrade when it ought to have been between 31 to 41 degree centigrade. Thereafter enquires were made. It was found that respondent Nos. 1 to 3 were the manufacturers and distributors of said Vanaspati Ghree. On completion of procedure, prosecution was launched against all the three respondents. 4. Learned Magistrate acquitted the respondents mainly on the ground that there was breach of rules 14 and 16 of the Prevention of Food Adulteration Rules, 1955 inasmuch as samples were taken in plastic pouches and were retained in the same condition without further packing or sealing the same. As stated in ground No. II of appeal Memo, the Food Inspector purchased company poly 4 pack of Vanaspati (Anand). However, as observed by the learned Magistrate in his judgment, the sample should not have been taken in a plastic pouch and it was also not properly labeled and sealed. 5. Rules 14 and 15 of the Prevention of Food Adulteration Rules, 1955 lay down the manner for sending sample for analysis and how the bottle or the container should be labeled and addressed. Rule 16 lays down the manner of packing and sealing the samples. Rules 14 and 16 read : "14. Manner of sending samples for analysis- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. 16. Manner of packing and sealing the samples.- All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely:- (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit; (b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum 5 or other adhesive; (c) A paper slip of the size that goes round completely from the bottle to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb-impression of the person from whom the sample has been taken being affixed in such a manner that the paper's slip and the wrapper both carry a part of the signature of thumb-impression; Provided that in case the person from whom the sample has been taken refuses to affix his signature or thumb-impression, the signature or thumb impression of the witness shall be taken in the same manner;] (d) The paper cover shall be further secured by means of strong twice or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. " 06. Learned Magistrate referred to certain authorities of this court in paragraph 10 of his judgment. In the case of State of Maharashtra vs. Prabhudas Baktani 1986 (3) F.A.C. 221, this Court observed that the samples are required to be collected in clean dry bottles or jars or other 6 containers which can be closed sufficiently tight to prevent leakage, evaporate or in case of dry substance, entrance of moisture and that container is required to be carefully sealed. Collection of sample in plastic pouch was held to be in violation of rule 14. 07. Another case referred by the learned Magistrate is that of State of Maharashtra vs. Hari Virumal Karachiwala and ors, 2004 ALL MR. (cri) 1506 wherein it is held that compliance of Rule 14 is mandatory and breach of the same vitiates conviction. In that case, mouth of each packed containing sample was not sealed and the food articles were packed in polythene bag and the bag was already closed at the time of packing. 08. In the present case, samples were not separately packed and sealed and the Food Inspector has admitted that he had not sealed the mouth of the container. In my considered opinion, merely sending polythene bags purchased by the Food Inspector as they were for analysis without 7 compliance of Rules 14 and 16 of the Act was fatal. All precautions laid down in Rules ought to have been taken to ensure that samples remained in the same condition till those are analyzed by public analyst without leaving any scope for allegation of possibility of tampering. Even though the samples were in polythene bags, those could have been put in bottles, jars or containers and could have been properly packed, sealed and and labelled as required under the rules. 09. Learned Magistrate did not commit any error in acquitting the respondents-accused. The judgment is well reasoned and therefore this is not a case to grant leave to file appeal. 10. Hence, application for leave to file appeal is rejected. pnd/criap199.09 (P.R.BORKAR, J.)