( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 414 OF 1997 The State of Maharashtra, through L.D. Deshpande, Food Inspector, C/o Assistant Commissioner, Food and Drugs Administration, Parbhani. APPELLANT VERSUS 1. Vasant Murari Pharkandkar, R/o Bele’s House, Near R.K. Hotel, Parbhani. 2. Uttam Murari Pharkandekar, R/o Near Shahane Medical Stores, Shivaji Road, Parbhani. RESPONDENTS ..... Mr. K.S. Patil, APP for the appellant/State. None for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 6th August, 2009] ORAL JUDGEMENT : 1. This appeal is directed against judgement of learned Chief Judicial Magistrate, Parbhani, in a criminal case bearing R.C.C. No. 367/1994 whereby both ( 2 ) the respondents were acquitted for the offences punishable under section 7 (i) read with section 2 (ia) (a), punishable under section 16 (1) (a) (ii), Section 7 (i) read with section 2 (ia) (b) punishable under section 16 (1) (a) (ii) and Section 7 (i) read with section 2 (ia) (m) punishable under section 16 (1) (a) (f) of the Prevention of Food Adulteration Act, 1954 (for short, “the PFA Act”). 2. Briefly stated, the prosecution case is that PW Shri C.B. Pawar was duly authorized and appointed Food Inspector for Parbhani district at the relevant time. On 21st August, 1993, at about 1300 hours, he visited the grocery shop of the respondents alongwith a panch witness. He inspected the shop, styled as “M/s Uttam Suka Mewa Masala Vikri Dukan” in which the respondent No. 1 was attending the business as Manager. The respondent No. 2 is proprietor of the shop. The Food Inspector noticed that spices were stored in the shop for the purpose of sale. He disclosed his identity to the respondent No.1 as Food Inspector. He demanded ( 3 ) samples of turmeric powder and poppy seeds (Khaskhas). He purchased 600 grams of khaskhas against payment of Rs. 30/-. He issued notice in Form No. VI. He divided the sample of khaskhas in three (3) equal parts. He filled up each part into clean, dry and empty polythene bags. The mouths of each of the polythene bag was carefully sealed by means of flame of a burning candle. The sample packets were labeled. Each of the sample packet was wrapped in a thick brown paper. The ends of the wrappers were pasted and closed by means of gum. Thereafter, the paper-slips containing seal of the local health authority, code number, signature of the panch, signature of the respondent No.1 and counter signature of the Food Inspector has been pasted on each of the packet. The sample packets were then sealed by affixing the seals as required under the Rules. One of the sample packets alongwith specimen impression and Form No. VII had been forwarded to Public Analyst for the purpose of analysis and report. The report received from the Public Analyst (Exh-46) revealed that the sample of khaskhas (poppy seeds) was not as per required standard in as much as it contained non-volatile other extract ( 4 ) below the prescribed limit. The relevant papers were forwarded to the Joint Commissioner of Food and Drugs for the purpose of according sanction. The competent authority gave consent as required under section 20 of the PFA Act. Consequently, the private complaint case was instituted by the Food Inspector against the respondents. The learned Chief Judicial Magistrate noticed certain deficiencies in the evidence tendered by the prosecution as well as the procedure followed by the Food Inspector. Consequently, the respondents came to be acquitted. 3. Heard learned APP for the appellant/State. None appeared for the respondents. 4. At the threshold, it is pertinent to notice that independent panch witness viz. PW4 Mohammad Yusuf did not support the case of the prosecution. His version is of no avail to either side. He deposed that he signed the panchanama as directed by the Food Inspector. The version of PW1 Lalit Deshpande is also of no much avail. He is a formal witness. He succeeded ( 5 ) the Food Inspector Shri Pawar and lodged the complaint as per the relevant papers available in the office. He has no personal knowledge as regards the visit of the Food Inspector Shri Pawar to the shop premises of the respondents. So also, the version of PW3 Sopan reveals that he was the local health authority at the relevant time. He received the report of the Public Analyst on 11-10-1993 regarding the analysis of the food article i.e. khaskhas. It is significant to note that there is only uncorroborated version of PW2 Shri Pawar, the Food Inspector as regards the manner in which the sample was collected from the shop of the respondents. His version purports to show that the sample of khaskhas was collected in polythene bags. The version of PW Shri Chandrakant Pawar, the Food Inspector, would make it amply clear that he did not clarify whether 600 grams of the poppy seeds had been collected in a clean and dry container before the three (3) parts thereof were separated. His version reveals that he forwarded one of the sealed sample packets to the office of the Public Analyst on 24th August, 1993. In this context, the learned Chief Judicial Magistrate noticed that there was ( 6 ) infringement of Rule 14 of the Prevention of Food Adulteration Rules, 1955 (for short, “the PFA Rules”). 5. Rule 14 of the PFA Rules reads as follows : “14. Manner of sending samples for analysis. - Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.” A plain reading of Rule 14 would make it amply clear that samples of food are required to be collected in clean, dry bottles or jars or in any other suitable container. The Food Inspector is required to take care to close such container sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture. It is of common knowledge that khaskhas is a dry substance and, therefore, it was necessary for the Food Inspector to ensure that the appropriate container ought to be used in order to avoid ( 7 ) entrance of moisture. The standard prescribed for khaskhas vide Entry No. A.05.18 is thus : “A.05.18 – POPPY (Khas-Khas) WHOLE means the dried seeds of the ripe fruit of Papaver Somniferum L. The seed may be white or greyish in colour. The proportion of extraneous matter shall not exceed [5.0] per cent by weight. It shall contain not less than 40.0 per cent by weight of non-volatile ether extract. [It shall be free from added colouring matter.] 6. It need not be reiterated that the Public Analyst noticed that the sample of the khaskhas was in conformity with the prescribed standard except and save the non-volatile ether extract percentage by weight. As per standard mentioned above, the percentage of non- volatile ether extract on dry basis shall not be less than 40 per cent by weight. It was found to be 27.50% by weight. There is no explanation coming forward as to why the Food Inspector did not collect the sample in empty and clean bottle or jar. The use of polythene bag is not specifically mentioned in Rule 14 of the PFA Rules. Needless to say, there is no strict compliance ( 8 ) with Rule 14. A Single Bench of this Court in “State of Maharashtra v. Prabhudas Atalmal Baktani” 1987 All India Food Adulteration Journal (VI) 273, held that where the sample was lifted in plastic bag, it was in violation of Rule 14. It has been held that compliance of Rule 14 is mandatory. It has been observed that taking the sample in plastic paper is in violation of Rule 14 and that by itself is fatal to the prosecution. In “State of Punjab v. Raman Kumar” (1998 CRI.L.J. 737), Full Bench of Pubjab and Haryana High Court held that polythene container or a thick paper wrapper are not suitable containers as envisaged under Rule 14 of the Rules. It is laid down that use of such container is violative of Rule 14. It is observed that there are every chances of such type of containers being affected due to possible entry of moisture during transit. Considering this legal position, the view taken by the learned Chief Judicial Magistrate cannot be faulted with. It is well settled that while dealing with appeal against judgement of acquittal, where two (2) views are possible, interference is uncalled for only because another view ( 9 ) is possible contrary to that of the view taken by the trial Court while acquitting the accused. There are no substantial reasons, therefore, to interfere with the impugned judgement of acquittal. 7. In the result, the appeal is dismissed. The impugned judgement of acquittal is confirmed. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL414-97