((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1026 OF 2007 Shankar Kishan Rathod Appellant versus Mangilal Ghisaji Choudhary and another Respondents A.A.Garge a/w R.S.Apte for appellant. K.H.Parekh for respondent no.1. Rajesh More, APP. CORAM : A.M.KHANWILKAR, J. DATE : 1st April 2008 PC : 1. Heard counsel for the parties. As the counsel produced paper book containing relevant evidence for answering the point in issue, it is not necessary to summon Record and Proceedings. 2. Accordingly, by consent of the parties, hearing of the appeal for admission was proceeded. According to the appellant, the Court below has committed manifest error in concluding that there was non compliance of mandatory requirement while taking sample of 500 gms. of "Chhhalli Supari", whereas, the sample taken by the Food Inspector, which was sent for analysis, was only 450 gms.. According to the appellant, the Lower Court has failed to advert to the ((-2-)) MST exposition of the decision of the Apex Court in the case of State of Kerala and others Vs. Alasserry Mohammed and others reported in 1978(2)-SCC-386. The Constitution Bench of the Apex Court has considered this specific aspect in the context of Rule 22 of the Rules and has opined that what is necessary to be seen is that the quantum sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis. Merely because the quantity sent was not in strict compliance with Rule 22 will not result in nullifying and obliterating its evidentiary value. Going by this decision, there is no difficulty in accepting the arguments of the appellant that the Lower Court has completely overlooked the principles expounded in this decision and instead proceeded to erroneously hold that the act of taking sample of only 450 gms. of Chhalli Supari resulted in non compliance of mandatory requirement. 3. Nevertheless, I am in agreement with the argument of the respondent that that was not the basis on which the Lower Court proceeded to decide the matter. According to the respondent, the Lower Court has, in substance, taken the view ((-3-)) MST that there has been non compliance of mandatory requirement of Rule 14 of the Rules which mandates that the sample of food for the purpose of analysis should be taken in a clean, dry bottles or jars or any other suitable container which shall be closed to prevent leakage, evaporation or in case of dry substance, such as the present one, the entrance of moisture and should be properly sealed. According to the respondent, the evidence given by the complainant would clearly indicate that the sample sent for analysis was placed in a polythene bag which can neither be described as a bottle or jar or container sufficiently tied to prevent moisture. The learned counsel for the respondent submits that at any rate, the complainant has not even mentioned vaguely that while sealing the sample kept in polythene bag, he had sealed in such a manner which could prevent entry of moisture therein. As this crucial evidence is lacking, contends learned counsel for the respondent, no fault can be found with the conclusion reached by the Lower Court that it is a clear case of breach of mandatory requirement having regard to the exposition in the two decisions referred to in paragraph 22 of the judgement, which are directly on the point. Indeed, those decisions are of ((-4-)) MST High Court, but deal with the requirement of Rule 14 of the Rules which have been held to be mandatory. 4. The counsel for the appellant in all fairness accepts that the complainant has not specifically spoken about the fact that after the sample was put in the polythene bag and sealed properly, he had done so in such a manner to ensure that the sample will not be exposed to moisture at any rate. As this crucial evidence is lacking, the prosecution has failed to establish the fact that it has complied with all the mandatory requirements particularly under Rule 14 of the Rules as aforesaid. 5. Thus understood, no fault can be found with the ultimate conclusion reached by the Trial Court in acquitting the respondent. I am conscious of the fact that the Lower Court has not answered the issue in this perspective but as the present appeal is against the acquittal and the conclusion as reached by the Lower Court can be sustained on the above basis, I see no difficulty in summarily dismissing the appeal for the reasons already recorded hereinbefore. ((-5-)) MST 6. Hence, dismissed. (A.M.KHANWILKAR, J.)