1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3490 OF 2008 Jitendra s/o Ananda Wani - APPICANT (orig.Accused) VERSUS 1) The State of Maharashtra and another. - RESPONDENTS ***** Mr.Pradip R.Patil Advocate for Applicant; Mr.PM Shinde APP for Respondents. ----- CORAM : K.U.CHANDIWAL, J. DATE : 12th August 2009. PER COURT : 1) Rule. Rule made returnable forthwith and Heard finally by consent of parties. 2) On 16th March, 2004, ground-nut oil samples were drawn from the stock held by the applicant herein. The samples were analyzed by the Government Laboratory at Jalgaon on 17.3.2004. The report of the Analyst of the Government Laboratory, dated 23.4.2004 indicated that, the Iodine value was 101.93 and the Bellier Test was at 37 Celsius temperature and they were negative. Consequently, there was sanction, pursuant to which, prosecution was launched by 2 the Food Inspector. 3) The sealed sample, which was with the accused/applicant, at his instance, by making an application to the Court, was sent to the Central Food Laboratory at Mysore on 18th March, 2006, that is virtually after two years from the date of analysis of the samples, the report of which is received, showing that the Bellier Test 1 degree Celsius is increased and also development of rancidity and the sample was found to be negative. 4) The Counsel urged, that in the light of the sanction in the matter by Mr.S.S.Urunkar, Joint Commissioner (Nasik Division) Food & Drugs Administration, Nashik, to be for infraction of Iodine value as 101.93 as against the standard to be between 85 to 99, and the Bellier Test as 37.0 degree Celsius, as against standard in between 39 degree Celsius to 41 degree Celsius, and the sanction indicated that the sample is adulterated within the meaning of Section 2(ia) (a), 2(ia)(m) of Prevention of Food Adulteration Act, 1954. 5) It was canvassed that, there was no sanction for the defect recorded by Central Food Laboratory, Mysore and development of rancidity, which was a necessary requirement and compliance for seeking the sanction and in absence of such compliance, the entire proceedings will vitiate. 3 6) In the matter of State of Maharashtra Vs. Nizamuddin Haji Mohammad Kasam reported in 1978 U.C.R.(Bom.) 656., this Court found in the sample analyzed by the State Analyst, prohibited colour were found while in same samples, analyzed by the Central Food Laboratory, saccharin was found beyond the prescribed limits. It is a matter of record, that the report of Central Food Laboratory, supersedes the report given by the State Analyst. Consequently, this Court came to the conclusion that since the saccharin was found in the sample, there was no sanction for said deficiency,there could not be prosecution and the learned Judge discharged the applicant/accused in that matter. 7) In the matter of Nagra Vs. State of Mysore – A.I.R. 1964 S.C. 269, it is observed that - “ If the Magistrate finds that there is no sanction for prosecution of the particular offence before him, the course open to him is not to pass an order of discharge but to return the complaint to the complainant.” It is further observed - “If the Court at any stage of the proceedings comes to the conclusion that the prosecution could not have been instituted without the sanction of a particular authority and that 4 sanction is not shown to have been given, then the Court is not competent to pass an order except an order that the proceedings be dropped and the complaint be rejected.” 8) Taking this recourse, the judgment in the matter of State of Maharashtra Vs. Nizamuddin Kasam (cited supra), indicate that the order of discharge passed by the learned Magistrate was set aside, the proceedings were dropped and the complaint was returned to the complainant. 9) In the situation in which the present matter is now placed, obviously the Central Food Laboratory result, which supersedes report of State Laboratory, indicating presence of rancidity in the sample, analyzed on 18th March, 2006 will have to be reconsidered by the competent authority issuing sanction. 10) Consequently, instead of quashing the proceedings of R.C.C.No.289/2005, it is directed that the complaint be returned to the Complainant for taking appropriate steps for getting sanction. 11) Criminal Application is partly allowed in above terms. Rule partly made absolute. ( K.U.CHANDIWAL ) JUDGE 5 bdv/cran3490.08