: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 SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.502 OF 200 CRIMINAL APPEAL NO.502 OF 200 CRIMINAL APPEAL NO.502 OF 2001 The State of Maharashtra at the instance of Shri G.N.Chaudhari Food Inspector, FDA (MS), Pune ...Appellant. v. 1.Mr.Gurunath Dattatraya Chillal Vendor of M/s.Parampara Food Products, 99, Paach Pandav Society, Janawadi, Gokhale Nagar, Pune-53 2. Sou. Meena Gurunath Chillal, Proprietor of M/s. Parampara Food Products, 99, Paach Pandav Society, Janawadi, Gokhale Nagar, Pune-53. ...Respondents. Mr.Shitole, learned APP for the Appellant/State. None for the Respondents. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 13th February, 2009. DATE: 13th February, 2009. DATE: 13th February, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This appeal is preferred by the State challenging the respondents’ acquittal for the offences punishable under Sections 2(ia)(a) read with Section 7(i) and Section 7(v) r/w. Rule 29 of the Prevention of Food Adulteration Rules 1955 and Section 7(ii) r/w. 2(ix) (d) punishable under Section 16 (1)(a)(i) and (ii) of the Prevention of Food Adulteration Act, 1954. :2: 2. Prosecution case in brief is as under: . The complainant is a Food Inspector. The respondent no.1 is the vendor and the respondent no.2 is the proprietor of firm M/s. Parampara Food Products, 99, Panch Pandav Society, Janawadi, Gokhale Nagar, Pune 53. On 12.1.1999 at about 3.30 p.m., the complainant alongwith the independent witness Ashok Chowgule visited the premises of Parampara Food Products and the respondent no.1 was found conducting business of the said shop. The complainant disclosed his identity and the purpose of his visit to the respondent no.1. The complainant demanded and purchased 12 packets each weighing 50 gms. of ’Tandoor Mix’ from the respondent no.1 and paid him Rs.120/- towards the cost of ’Tandoor Mix’ purchased and obtained the receipt of the same. The complainant did samplings as per the procedure. Signatures of the respondents were obtained as per the rules on the outer wrapper and the paper slip partially. On 13/1/1999 the complainant sent one of the sealed counter part of the sample to the Public Analyser, Pune alongwith form no.VII for analysis and report. The remaining two counter parts of the sample were sent to Local Health Authority, Pune. It is alleged that the Public Analyser has reported that the sample contains synthetic food colour. After completion of investigation, the complainant applied to the Joint :3: Commissioner for consent to prosecute the accused. The said authority gave consent and thereafter the present complaint is filed in the Court by the complainant against the respondents. 3. The charge Exhibit 37 was framed against the respondents for contravention of provisions of Sections 2(ia)(a) read with Section 7(i) and Section 7(v) r/w. Rule 29 of the Prevention of Food Adulteration Rules 1955 and Section 7(ii) r/w. 2(ix) (d) punishable under Section 16 (1)(a) (i) and (ii) of the Prevention of Food Adulteration Act, 1954. Respondents pleaded not guilty and claimed to be tried. Defence of the respondents is that the complainant had not followed proper procedure while drawing alleged sample. It is further defence of the respondents that the mandatory provisions of the Prevention of Food Adulteration Rules are not complied with. It is also contended that the sanction to the prosecution is not legal in-as-much as the same was given without applying any mind. 4. Prosecution in order to prove guilt of the respondents/accused examined three witnesses, namely, P.W.1 Complainant-Food Inspector Chaudhari, Dr. Rawetkar of Local Health Authority and panch witness Ashok Chougule. 5. The learned Magistrate after scrutinising the :4: evidence led by the prosecution and after hearing the submissions of the respondents came to conclusion that the prosecution did not comply mandatory provisions of Rules 14, 15 and 16(d) of the Prevention of Food Adulteration Rules, 1955. It was further held that sanction to prosecute the respondents is given without application of mind and consequently, it was held that prosecution failed to prove beyond reasonable doubt the offences for which the respondents/accused charged. 6. With the help of Mr.Shitole the learned APP, I have gone through the depositions of P.W.1 to 3. I have also gone through the relevant provisions of Prevention of Food Adulteration Act and rules framed thereunder. Rule 14 of the Prevention of Food Adulteration Rules, 1955 reads as follows: "14. Manner of sending samples for analysis. Manner of sending samples for analysis. 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." P.W.1 Complainant in his cross-examination deposed that the polythene packet, which was purchased as a sample, was sent in the same condition for analysis without breaking it. The above statement of P.W.1 Complainant :5: shows that samples were not taken in clean, dry bottles or jars or any other suitable containers to prevent leakage, evaporation, etc. I find that the learned Magistrate has correctly recorded the conclusion regarding the non-compliance of provisions of Rule 14. 7. Rule 16 of the said Rules reads as under: " 16. Manner of packing and sealing the samples. 16. Manner of packing and sealing the samples. 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 or other adhesive;" After perusal of the evidence of P.W.1, complainant, it is not revealed that he complied with this provision and, therefore, no fault can be found with the reasoning of the learned Magistrate. 8. So far as the non-compliance of the provisions of Rule 15 are concerned, P.W.1 complainant admitted in his cross-examination that he did not affix labels on each container/packet. Rule 15 mandates that all the bottles or jars or other containers containing samples :6: shall be properly labelled and the parcels shall be properly addressed. It further mandates that the label on any sample of food sent for analysis shall bear the particulars given in Clauses (a) to (f). In view of the above clear cut admission of the complainant that he did not affix labels on each container, it is clear that provisions of Rule 15 are also not complied with. The learned Magistrate has also recorded similar findings. 9. Now let us consider the defence of the respondents/accused that the Joint Commissioner granted sanction to prosecute the respondents/accused without there being any application of mind. Consent given by the Joint Commissioner is produced at Exhibit 34. This documents indicates that the sanction has given to prosecute the respondents under Section 2(ix)(d) of Prevention of Food Adulteration Act, 1954. Section 2(ix) defines ’Misbranding’ of an article. Prosecution failed to produce any material on record so as to attract provisions of Section 2(ix)(d). In spite of this, consent to prosecute the respondents was given for the offences punishable under Section 2(ix)(d) of the Prevention of Food Adulteration Act, 1954. The learned Magistrate held that this is clear case of non application of mind. I have no reason to dispute the findings. 10. In the facts and circumstances mentioned above, :7: I am of the view that the approach of the learned Magistrate is correct. Respondents are rightly acquitted for non compliance of the mandatory provisions of the said Act and Rules. There is no merit in the appeal 11. Appeal is accordingly, dismissed. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)