-: 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 JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 467 OF 2002 CRIMINAL APPEAL NO. 467 OF 2002 CRIMINAL APPEAL NO. 467 OF 2002 State at the instance of ¦ .. Appellant. Shri S.B.Kodgire,Food Inspector, ¦ (Org.Complainant) Food and Drug Administration, ¦ Maharashtra State, Mumbai. ¦ V/s. 1. Mr.Mukesh Lakhamshi Dharod ¦ ¦ 2. Smt. Bhanuben Lakhamshi Dharod ¦ .. Respondents. ¦ (Org.Accused- Both R/o. M/s. Jakhariya General ¦ 1 to 2 ) Store, D.N.Dube Road, Ambawadi, ¦ Dube Chawl, Dahisar (E), Mumbai-68 ¦ --- Mr.A.S.Shitole, APP for the Appellant-State. Mr. K.H. Parekh & Prem Gidwani for the Respondents. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 05TH MARCH, 2009 DATED : 05TH MARCH, 2009 DATED : 05TH MARCH, 2009 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This appeal is filed by the State taking exception to the judgment and order dated 10th August, 2001 passed by the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai recording respondents acquittal for the offence punishable under section 2(ia)(a)(j) read with Rules 28, 29 and 50, punishable under section 16 and 17 of the Prevention of Food Adulteration Act, 1954 (for short, hereinafter referred to as "PFA Act" ). -: 2 :- 2. The prosecution case in short is as follows : . The respondent no.1 is a vendor and respondent no.2 is a Proprietor of M/s. Jakhariya General Stores, D.N.Dube Road, Ambawadi Dube Chawl, Dahisar (E), Bombay 400 068. PW-2 is the Food Inspector, who visited the said premises on 30.06.1994 at about 2 p.m. alongwith independent witness Shri Champalal Ratanlal Parmar, had found a stock of 2 kgs., of Achar Sambhar which was stored for sale without licence. PW-2 demanded and purchased 600 grams of Achar Sambhar from the respondent no.1 vendor on payment of requisite price. The purchased quantity of Achar Sambhar was thereafter divided into three equal parts and each part was filled in dry, clean and empty glass bottles which were sealed in accordance with rules. The Food Inspector thereafter recorded panchanama of the events in the presence of witness-Champalal Parmar. One such sample was sent to the Public Analyst, Mumbai, who found it to be adulterated. After receipt of the report of the Chemical Analyser and obtaining necessary sanction for prosecution from the Joint Commissioner, PW-2 filed complaint against the respondents for violation of provisions of section 2((ia)(a)(j) read with Rule 23, 29 and 50 of the PFA Act and Rules. -: 3 :- 3. The prosecution in order to prove guilt of the respondents, examined two witnesses, namely, PW-1 Ravindra Ganu Gosavi, who is a clerk in the office of the Local Health Authority and the Complainant PW-2. The prosecution also relied upon the report of the Public Analyst at Exh. P-5 as well as sanction order from the Joint Commissioner and the panchanama at Exh. 13. The learned Magistrate after going through the evidence on record found that the Complainant, i.e. the Food Inspector while collecting samples has failed to comply with the mandatory provisions of section 11(i)(b) of the PFA Act and consequently, as stated above, recorded the respondents acquittal. 4. The prosecution failed to examine panch witness and relied upon the testimony of the Clerk from the office of Local Health Authority and the Food Inspector. The complainant -Food Inspector in his crossexamniation in para 7 deposed as follows : "First of all I put the glass bottle in a balance and the said bottle was brought under equal balance by putting some quantity of chana dal. Thereafter, I weighed 200 gms achar sambhar powder and put it in the glass bottle". Section 11 (i)(b) of the PFA Act, deals with the procedure to be followed by the Food Inspector. Under subclause (b) -: 4 :- of Section 11 (i) it is obligatory for the Food Inspector to divide the sample into three parts and seal or fasten up each part in such a manner as its nature permits and take signatures or the thumb impression of the person from whom the sample has been taken. 5. Thus the section 11(i)(b) prescribes procedure where under the Food Inspector firstly is required to purchase quantity in bulk and thereafter divide the same in three equal parts after making quantity homogeneous so as to represent the bulk. The admission of the complainant, the Food Inspector which is quoted above reveals that this procedure prescribed under section 11(i)(b) is not followed. The procedure laid down under section 11 (i)(b) is mandatory as held by this court in State of Maharashtra State of Maharashtra State of Maharashtra vs. Hari Virumal Karachiwala & Ors., reported in 2004 ALL vs. Hari Virumal Karachiwala & Ors., reported in 2004 ALL vs. Hari Virumal Karachiwala & Ors., reported in 2004 ALL MR (Cri) 1506. MR (Cri) 1506. MR (Cri) 1506. 6. In the facts and circumstances above, the learned Metropolitan Magistrate rightly acquitted the respondents. I do not find any reason to interfere with the impugned judgment and order. The Appeal is devoid of any substance. The same is dismissed accordingly. (R.V.MORE,J.) -: 5 :- .....