( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 74 OF 1998 The State of Maharashtra, through Food Inspector, Dhule. APPELLANT VERSUS 1. Ranmal Harakchand Jain Partner Nominee M/s Jayerchand Harakchand, Nandurbar. 2. M/s Jayerchand Harakchand, Nandurbar. RESPONDENTS ..... Mrs. R.D. Reddy, APP for the appellant/State. Mr. Swapnil S. Rathi, advocate for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th August, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Judicial Magistrate (F.C.), ( 2 ) Nandurbar, in R.C.C. No. 90/1989 whereby the respondent came to be acquitted for offences punishable under section 7 (i) read with section 2 (ia) (a) (m), 16 (1) (a) (ii) and 17 of the Prevention of Food Adulteration Act, 1954 and the Rules framed thereunder. 2. The prosecution case is that the respondent No. 1 is partner of the respondent No. 2, which is a firm dealing in sale of grocery articles like chilly powder, groundnut oil, etc. ON 9th June, 1988 at about 1.45 p.m, PW1 Shri Acharya, Food Inspector, alongwith panch witness – PW Ashok visited the grocery shop of the respondents. The Food Inspector disclosed his identity to the respondent No. 1 who was attending business of the shop. The Food Inspector purchased 450 grams of groundnut oil for purpose of analysis against payment of price of Rs. 9.90 p. He gave notice in Form No. VI. He divided the groundnut oil sample in three (3) parts. Each of the part was filled in a dry, clean and empty bottle and those three (3) sample bottles were filled with the groundnut oil. Those bottles were tightly corked and made leak-proof. Thereafter, each of the ( 3 ) sample bottle was wrapped in thick brown paper. Both the ends of the wrapper were folded and pasted by means of gum. The wrappers were affixed with labels and were thereafter horizontally and vertically tied by means of twill. The Food Inspector affixed four (4) lakh seals, one on the top, one on the bottom and each one on either side of each one of the sample bottle and thereafter affixed slips containing code number and signatures of the panch and the respondent No. 1 as well as his own counter-signature. Thus, the three (3) sample bottles were prepared. One of the sealed sample packet was forwarded to the Public Analyst alongwith specimen seal as per the procedure prescribed under the PFA Rules. The report of the Public Analyst indicated that the sample of the oil was not in conformity with the standard as provided under the PFA Rules. So, the Food Inspector forwarded the relevant papers to the Joint Charity Commissioner for grant of sanction for prosecution. The competent authority gave consent for sanction for prosecution of the respondents as provided under section 20 of the PFA Act. Consequently, the respondents were prosecuted before the learned Judicial ( 4 ) Magistrate. 3. At the trial, the prosecution examined three (3) witnesses viz, PW1 Shri Acharya, PW2 Manohar Mahajan, who was the local health authority at the material time and PW3 Ashok being the panch witness. The respondent No. 1 pleaded not guilty for both the respondents. The respondents denied that the sample was collected as required under the PFA Rules. It was denied that the sample was sub-standard or was not as per the prescribed standard. 4. The learned Judicial Magistrate acquitted the respondents on the ground that the version of the Food Inspector failed to prove proper compliance of Rule 14 of the PFA Rules regarding use of clean, dry and empty sample bottles for collection of the sample oil. The learned Judicial Magistrate further held that the report of the Public Analyst was not received by the local health authority within 45 days and, therefore, due to delay, it was possible that there were inherent changes in the sample oil. ( 5 ) 5. Heard learned APP Smt. Reddy for the appellant/State and learned advocate Mr. Rathi for the respondents. I have gone through the record and proceedings. 6. The version of the Food Inspector – PW Shri Acharya purports to show that he visited the shop of the respondents on 9th June, 1988 at about 13.45 hours alongwith PW3 Ashok. His version purports to show that he demanded sample of groundnut oil from the respondent No.1. He narrated that he purchased 450 grams of groundnut oil against payment of price of Rs. 9.90 p. He narrated as to how notice in Form No. VI was served on the respondent No. 1. His version reveals that the sample was collected in clean, empty and dry bottles which were made leak-proof after filling up oil. He gave details of the procedure followed for the purpose of packing of the samples and filling, etc. He admits unequivocally that the sample of the groundnut oil was not stirred. He states that it was not necessary to stir or shake the sample. He further admits, ( 6 ) unequivocally, that before collecting the sample of the oil, the bottles were not sterilized or washed prior to the use. According to him, the sample bottles were in the custody of Store-Keeper of his office and were procured through the peon of the office from the Store- Keeper. Those bottles were in the custody of the peon of the office prior to the use. Thus, it is manifestly clear that the Food Inspector did not personally verify whether the sample bottles were cleaned prior to the use thereof. He assumed the cleanliness thereof. 7. Rule 14 of the PFA Rules mandates that sample of food for the purpose of analysis ought to be taken in clean, dry bottles or jars or in any other suitable container which shall be closed sufficiently tight. The cleanliness has to be ensured in order to avoid contact of the food sample with extraneous material. Another purpose of using empty and dry bottle is to avoid contact of the food with moisture. The procedure is envisaged in order to insulate inherent changes in the ingredients of the food article due to exposure to the air, moisture or extraneous material. The provision is ( 7 ) mandatory. Consequently, failure of the Food Inspector to follow the said procedure is fatal to the case of the prosecution. 8. The testimony of PW3 Ashok (panch) is of no much avail. He was declared hostile. He did not corroborate case of the prosecution. The prosecution also failed to prove that the oil was collected in clean and dry utensil before it was divided into three (3) parts. Indeed, PW Shri Acharya did not explain as to in what manner, he got ensured that the oil was collected in clean and empty pot prior to filling up of the sample bottles. In this context, his version is rather vague. Considering the above defects, the acquittal rendered by the learned Judicial Magistrate cannot be faulted with. So also, there is considerable delay in sending of the report of Public Analyst. The report (Exh-52) dated 18-07-1988 was received by the Food Inspector on 05-08-1988. The report does not show as to on what date, the sample was analysed. The Public Analyst was not examined by the prosecution. Considering the cumulative effect of the deficiencies noticed above, I ( 8 ) do not find any substantial reason to interfere with the judgement rendered by the learned Judicial Magistrate. 9. In the result, the appeal is dismissed. The impugned judgement of acquittal is confirmed. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL74-98