( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 176 OF 1997 The State of Maharashtra .. Appellant through Mr. Dajiba s/o. Digambar Savle Aged 50 years, Occ. Food Inspector, Food and Drug Administration, MS, Nanded. Versus 1. Shri Narayan s/o. Venkat Polawar .. Respondents Aged 31 years,Occ. Seller, M/s. Anant Oil Industry, Degloor. 2. Shri Shankar s/o. Ramchandra Batkulwar Manager and Nominee of M/s. Anant Oil Industries, Degloor. 3. M/s. Anant Oil Industry, Degloor, Tq. Degloor, Dist. Nanded. Shri K.M. Suryawanshi, A.P.P. for appellant/State. Shri V.S. Bedre, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 17.12.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the State being aggrieved by the order of acquittal passed by the Judicial ( 2 ) Magistrate, First Class, Degloor, in R.C.C. No. 147 of 1996, decided on 01.02.1997, whereby the present respondents were acquitted of offences under Sections 7 (1) 2(1A) (M) r/w Sec. 16 (1) (a) (1) (2) and Section 17 of the Prevention of Food Adulteration Act. 2. Briefly stated, it is case of the prosecution that Food Inspector Dajiba Savle along with P.W.2-Ashok Sakhare had visited M/s. Anant Oil Industries, Degloor belonging to the respondents on 02.03.1996 at 3.00 p.m. There he had taken sample of sunflower oil in three glass bottles. These samples were approximately 450 gms. Necessary procedure was followed. The sample was sent for analysis. As per report of Public Analyst (Exh.29), the sample of sunflower seed oil had rancid smell and the rancidity test was positive therefore it is stated that the sample was not confirming to the standard of sunflower seed oil as per item No. A.17.22 of the Appendix B of P.F.A. Rules, 1955. Ultimately, prosecution was filed against the respondents. The prosecution examined in all two witnesses and the prosecution is resulted in the acquittal of the respondents. It is this order which is challenged in this appeal. ( 3 ) 3. The main reasons given by the Trial Court for acquittal are three in number. Firstly the sample was not taken after measuring, but approximately 450 ml. sample was taken. Secondly, there was no compliance of Rule 14 in as much as the bottles in which the samples were taken and thirdly the utensil with which sample was taken and the small tank in which oil was first taken and from which the samples were taken, were not cleaned. 4. Heard A.P.P. Shri K.M. Suryawanshi for appellant/State and Shri V.S. Bedre for the respondents. 5. The learned Magistrate referred to the evidence of witness No.2 Ashok Sakhare at Exh. 46. In cross-examination, Ashok Sakhare admitted that oil of which the sample was collected by the complainant was initially stored in a big tank. Thereafter oil was taken in a small tank by a steel pot. He did not know if there was already oil in the small tank. The small tank was not cleaned or washed or dried in his presence. The steel pot was dipped in the small tank and oil for sample was collected by the complainant. The ( 4 ) complainant had taken the sample of oil personally from the small tank. The steel pot was lying in the office of the mill. It was taken by the complainant and dipped in small oil tank and directly sample was collected by the complainant. The oil taken from small tank was poured in the three bottles having with the complainant. The witness could only state that the bottles were empty, but could not tell whether they were dry. 6. The learned Magistrate has observed in para 10 of the judgment that according to the complainant stainless steel pot for pouring the oil in the bottles was taken from the accused, whereas the punch witness Ashok Sakhare stated that it was lying in the premises of the mill. It was not cleaned and dried by the complainant in his presence. It is also observed that the panchanama Exh.20 does not show that the bottles in which the samples were collected were clean and dry. It is only version of the complainant that the bottles were cleaned and dried before he came to the mill. 7. It is further observed in para 11 of judgment by the Trial Court that P.W.2-Ashok Sakhare was under pressure ( 5 ) of complainant. Though the witness has supported the complainant’s case, he has given a different account about the process of collection of oil sample by the complainant. P.W.2-Ashok Sakhare in his evidence has stated that the oil from the big tank was first removed in a small tank then by dipping the stainless steel pot in the small tank, oil was taken by the complainant. The complainant was silent about removing of the oil first from big tank to small tank. This raises serious doubt about truthfulness. Either evidence of complainant was true or that of P.W.2-Ashok Sakhare was true. It is stated that P.W.2-Ashok Sakhare could have been declared hostile if he was not telling truth. There was no reason to discard his evidence. 8. In this case report of Public Analyst shows that rancidity test of the sample was positive and there was rancid small. Question arises whether there was rancid oil or its traces either in the stainless steel pot which was lying in the mill with which sample was taken or in the small tank in which oil was first taken from the big tank. Benefit of such doubt is given to the accused by the Trial Court. ( 6 ) 9. In my considered opinion, the Trial Court did not commit any error in giving benefit of doubt to the accused. In these circumstances, this appeal against acquittal is dismissed. [P.R. BORKAR,J.] snk/2009/DEC09/crap176.97