1 cri appln 3044.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3044 OF 2010 The State of Maharashtra .. Applicant Versus Subhash Sumantrao Pande .. Respondent Smt. Y. M. Kshirsagar, A.P.P. for the Applicant/State. Shri R. P. Bhumkar, Advocate for the Respondent. CORAM : S. S. SHINDE, J. DATE : 15TH FEBRUARY, 2011. PER COURT : . Heard learned Additional Public Prosecutor for the applicant/State and learned counsel for the respondent. The respondent was tried taking recourse to Sub Section (v) of Section 7 r/w Rule 50 of the Prevention of Food Adulteration Act 1954 along with Prevention of Food Adulteration Rules 1955. 2. The shop called as Subhash Provisions was visited by one Mr. S. G. Annapure, Food Inspector, Food and Drugs Administration Beed. According to the prosecution, said Food 2 cri appln 3044.10 Inspector is appointed taking recourse to Sec.9 of the Prevention of Food Adulteration Act 1954. 3. After appreciating the evidence on record, the Trial Court found that, the prosecution has failed to prove or bring on record who is owner of said Subhash Provisions. In para 5 of the impugned judgment, the Court has observed that, the defence is taken by the respondent/original accused that he is not owner of the Subhash Provisions or he has no relation with the said retail shop. The complainant has admitted in his cross examination that he did not enquire about ownership of the said retail shop. He has also admitted in his cross examination that he has not seen the license for stock on the date on which alleged raid was effected. He did not enquire from the respondent whether he is servant, customer or owner of the said shop. The Trial Court has narrated details in para 5 and ultimately reached to the conclusion that the complainant has utterly failed to prove its case and has not brought on record necessary information/material. 4. I have given due consideration to the rival contentions and independent scrutiny of the evidence on record and also the 3 cri appln 3044.10 provisions of the Prevention of the Food Adulteration Act 1954, in particular Section 7 Sub Section (v) of the said Act and also Section 10. On perusal of Sub Section 5 of Section 10 of the Said Act r/w Section 15 of the Rules of 1955, it clearly appears that, the Food Inspector did not follow the procedure contemplated under the said Act and Rules while raiding the premises in question. Sub Section 5 of Section 10 empowers the Food Inspector to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale. It is provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the case may be, in occupation of the premises, if he is present therein, refuses to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so. It is further provided that, the Food Inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code. 4 cri appln 3044.10 5. Admittedly, from the cross examination of the complainant it reveals that the complainant has not followed the requisite procedure as contemplated under the relevant provisions of the Act and Rules. Therefore, the Trial Court rejected the complaint filed by the complainant. The defence taken by the accused/respondent was probable defence. He asserted that, he is not owner of the Subhash Provisions or he is not related to said retail shop. In that case, it was for the complainant to prove and convincingly establish that the respondent is either owner of the shop or he is related with the said shop. Said burden has not been discharged by the prosecution. On the contrary, the admission given in the cross examination of the complainant completely demolishes the prosecution case. Therefore, the benefit of doubt has been rightly given to the respondent. Therefore, no interference is called for. Hence this application seeking leave to appeal stands rejected. Consequently admission of the appeal stands refused. The Record and Proceedings be sent back to the concerned Court immediately. [ S. S. SHINDE, J.] bsb/Feb. 11