(1) Cri. Application No. 2559 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 2559 of 2011 The State of Maharashtra, through Mr. T.C. Boralkar, Food Inspector, .. Applicant Food and Drugs Administration, (Original Jalna [MS]. complainant) versus 1. Mahendra Tarachand Sethiya, Age : Major, Vendor of M/s. Sethiya Trading Company, Mahatma Phule Market, Jalna. 2. Anand Tarachand Sethiya, Age : Major, Proprietor of M/s. Sethiya Trading Company, Mahatma Phule Market, .. Respondents Jalna. (Original accused) ....................... Mr. S.N. Kendre, Additional Public Prosecutor, for the applicant. Mr. A.S. Barlota, Advocate, for respondent nos.1 and 2. (2) Cri. Application No. 2559 of 2011 ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 15TH DECEMBER 2011 COURT'S ORDER : 1. Heard learned respective Counsel for the parties. 2. This is an application preferred by the applicant / State seeking leave to file appeal challenging the judgment and order of acquittal dated 2nd February 2011, rendered by the learned Chief Judicial Magistrate, Jalna, in Regular Criminal Case No. 52/1998, thereby acquitting the respondents herein i.e. original accused nos.1 and 2, for the offences punishable under Sections 7(i), read with Section 2(ia), 2(ia)(m), punishable under Sections 16 and 17 of Prevention of Food Adulteration Act, 1954 (For short, hereinafter referred to as "PFA Act"). 3. I have perused the impugned judgment dated 2nd February 2011, and the record and proceedings with the assistance of the learned Counsel for the parties. 4. Parties are hereinafter referred to as per their original (3) Cri. Application No. 2559 of 2011 status i.e. complainant and accused. 5. Accused nos.1 and 2 faced the trial for the alleged offences of storing and selling an adulterated food article, Baba Gutkha, in contravention of Section 7(1), read with Section 2(ia), (a), Section 7(v), read with Rule 62, punishable under Sections 16 and 17 of the PFA Act. 6. To substantiate the charges levelled against the accused, the prosecution examined as many as three witnesses, namely : PW 1 - Tuljadas Chandidasrao Boralkar, Food Inspector. PW 2 - Pramod Nivrattirao Malode - Independent witness. PW 3 - Kashinath Trimbak Sudke, Assistant Commissioner (Retired). The defence of the accused is of total denial. 7. Having comprehensive view of the matter, admittedly, accused nos.1 and 2 are vendors and it appears that they have just purchased company packed packets from accused nos.3 to 6 and (4) Cri. Application No. 2559 of 2011 accused no.6 is manufacturer and accused no.5 is the nominee of M/s. Hira Enterprises. Accordingly, the complainant has stated that he has received supplier bill dated 17-4-1997 from accused no.1 on 13-5-1997. The vendor disclosed that the said food article Baba Gutkha was purchased from Hira Enterprises, Old MIDC Plot No. B-30, Satara, vide Bill No. B-11, invoice No.8, dated 3-4-1997. Hence, observations made by the learned trial court in para 30 of its judgment, that the accused nos.1 and 2 are entitled for benefit under Section 19(2) of PFA Act cannot be faulted with. 8. Moreover, it also appears that the samples were collected in a thick brown paper envelope and they were not collected into clean dry bottles or jars or in other suitable containers, as contemplated under Rule 14 of the Prevention of Food Adulteration Rules, 1955 (For short, hereinafter referred to as "PFA Rules"), and therefore, it is apparent that there is non- compliance of the said Rules, and the observations made by the learned trial court are, apparently, not erroneous. 9. Moreover, it is further apparent that the report of Public Analyst, which is at Exhibit 82, cannot be relied upon since the Public Analyst has not been examined to show who and how the sample has been analyzed and at which point of time it (5) Cri. Application No. 2559 of 2011 was analyzed, as well as, Public Analyst is required to give report within forty days from the receipt of the sample packet, but in the instant case, Public Analyst report Exhibit 82 shows that he has received the sample packet on 24-4-1997 and report is dated 7-6-1997, and accordingly, it is clear that Public Analyst report is sent after 44 days, and there is, apparently, non-compliance of Rule 7(3) of the PFA Rules. 10. Apart from that, there is apparently non-compliance of Section 13(2) of the PFA Act since postal acknowledgment receipts Exhibits 115 to 119 do not bear the postal stamp / seal and signatures thereon have not been identified by PW 3 Kashinath Sudke, and it is accordingly, non-compliance of mandatory provision of Section 13(2) of the PFA Act, in the present case. 11. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting respondent nos.1 and 2 herein i.e. original accused is a possible view, and the same does not appear to be perverse, and the reasoning adopted therefor also, apparently, cannot be faulted with, and hence, no interference is called for therein, in appellate jurisdiction, and the present Application deserves to be rejected. (6) Cri. Application No. 2559 of 2011 12. In the result, present Criminal Application, which is sans merits, stands dismissed. Leave to file appeal is refused. 13. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/2559ka