1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.379 OF 1997. The State of Maharashtra at the instance of Ramchandra Fakira Koli, Food Inspector F & D. Administration, M.S. Campa Baugh, Sakri Road, Dhule. ... Appellant. Versus Motilal Kautik Mali, Aged 28 years, Occ.Business, Prop. M/s Swagat Hotel, Situate at Songir, Tq. & Dist. Dhule. ... Respondent. ... Mrs.R.D.Reddy, A.P.P. for the appellant. Mr.B.R. Warma, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 23.07.2009. ORAL JUDGMENT 1. This is an appeal by the State being dissatisfied with judgment of acquittal rendered 2 by learned Chief Judicial Magistrate, Dhule, in RCC No.326/1992, acquitting the Respondent of the charge for offence U/s 7(i) read with Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act,1954 (for short, PFA Act). 2. The background facts leading to the prosecution, stated briefly, are that complainant Mr. R.F.Koli, is duly appointed Food Inspector. The Respondent runs a hotel styled as "Swagat Hotel" at intersection of village Songir. On 22.11.1991, the Food Inspector visited said hotel. He carried out inspection of the hotel in presence of Panch witness Hiraman Sharma and peon of his office i.e. Mr.A.B.Wagh. He noticed that wheat flour (Ata), turmeric powder and groundnut oil were stored in canisters without lid. He disclosed his identity as Food Inspector to the Respondent and declared intention to collect samples for the purpose of analysis. He collected 600 grams turmeric powder out of stock of four (4) Kgs. turmeric powder stored in the canister, sample of wheat flour of 600 grams and sample of groundnut oil of 450 grams. The price 3 of the turmeric powder was Rs.12/- which was paid along with prices of other two articles under a common receipt (Exh.9). The Food Inspector served notice in form No.6 on the Respondent. He separated the sample of turmeric powder in three equal parts and filled up each of the part in separate dry, clean and empty polythene bags. The sample bags were then duly labelled and were sealed after appropriate packing as per the Rules. He prepared a panchanama regarding the steps taken by him while collecting the samples. He sent one of the sealed packet of the turmeric powder to the Public Analyst, Pune for purpose of analysis. The remaining two (2) sample packets were delivered to the local Health Authority along with the copies of form No.7 and the specimen seal impressions. One of such specimen seal impression and copy of form No.7 were separately sent to the Public Analyst, Pune. The report of Public Analyst was subsequently received by the Food Inspector. The report revealed that the sample of turmeric powder contained red and orange oil soluble colour and foreign starch and as such did not conform to the 4 standard of the food article as provided under Rule A.05.20 of the PFA Rules, 1955. The Food Inspector forwarded the relevant papers to the Joint Commissioner, Food and Drugs Administration, Nasik with a request letter to accord sanction for the prosecution. The Joint Commissioner issued consent letter dated 5.6.1992 vide Exh.29 and thereafter the complaint case was instituted against the Respondent. 3. The Respondent/accused denied truth into the charge levelled against him. His defence before the learned Chief Judicial Magistrate was that the turmeric powder was not stored for sale nor it was sold to the Food Inspector. He submitted that the turmeric powder was meant for use of mixing the same with other articles required for preparation of Food articles in the hotel. He denied that the turmeric powder was of sub-standard nature. Consequently, he sought acquittal from the charge. 4. The prosecution examined the Food 5 Inspector as P.W.1, Panch Hiralal Sharma as P.W.2 and Mr. T.S. Patil, Local Health Authority as P.W.3. The prosecution also placed reliance on several documents in support of its case. On appreciation of the evidence tendered by the prosecution, the learned C.J.M. came to the conclusion that the turmeric powder was not stored for sale or was not meant for manufacturing of any article but it was meant for mixing up the same with other food articles in order to prepare some eatables in the hotel also would be covered by the expression "sale" as used in Section 2(i)(a)(m) of the PFA Act. 4A. The learned A.P.P. contended that the necessary ingredients of the offence are made out and, therefore, the impugned judgment of acquittal is liable to be interfered with by this Court. Mr.Warma, learned counsel for the Respondent supports the impugned judgment. 5. Before I embark upon scrutiny of the prosecution evidence, let it be noted that the food articles were collected from hotel of the 6 Respondent. The turmeric powder and other articles were kept in open container. Indisputably, the turmeric powder was meant for use of preparing mixture required as a base for preparation of eatables in the hotel. It is nobody's case that there is any sale counter at the hotel for effecting sale of spices like the turmeric powder nor the turmeric powder was filled up in any other container or packet meant for sale as such. The questions for considerations are : "(i) Whether turmeric powder was meant for sale or was stored for the purpose of sale and as such it falls within the ambit of Section 2(xiii) of the PFA Act.? (ii) Whether it is proved beyond reasonable realm of doubt that the turmeric powder was adulterated inasmuch as impermissible colouring matter was used or that foreign starch was found in the said sample.?" 7 6. The Food Inspector narrated the details of his visit to the hotel of the Respondent on 22.11.1991 along with Panch witness - P.W. Hiraman Sharma. His version is corroborated by P.W. Hiraman Sharma. The version of P.W. Hiraman Sharma has remained unimpeached. It is duly proved that they visited hotel of the Respondent in the relevant noon. The versions of both the witnesses would show that the Respondent was attending business of the hotel and introduced himself as proprietor of the same. The Food Inspector thereafter collected the sample of 600 grams of turmeric powder against payment of Rs. 12/-. His version is corroborated by the recitals of payment receipt (Exh.9). He served notice in form 6 on the Respondent. His version reveals that due procedure was followed while collecting the turmeric powder. The sample of turmeric powder was divided in three equal parts. He states that each of the part was filled in dry, clean and empty Polythene bags. The Polythene bags were closed by means of candle light and were pasted with labels. He also 8 narrated as to how one of the duly packed sample packet was sent to the office of the Public Analyst at Pune. The steps taken by the Food Inspector are duly recorded in Panchanama (Exh. 12). There is hardly any reason to dislodge the recitals of the said panchanama. 7. Cross-examination of the Food Inspector reveals that Respondent did not run any shop as such nor he deal in business in spices. The Food Inspector admitted that red and orange colour are divided in two categories. He admits that the report of the Public Analyst (Exh.23) does not indicate to which particular category the red- yellow colour was attributable. He further admits that for preparation of the edibles in the hotel various spices and food articles were required to be mixed. He admits that the turmeric powder was one of the spices to be used for preparation of the eatables in the hotel of the Respondent. 8. Coming to the report of the Public Analyst (Exh.23), it is manifest that turmeric 9 sample conformed with all other requirements viz; moisture by weight, total ash % by weight, Ash insoluble in dilute HCL, on dry basis % by weight, test for lead chromate and presence of total starch in accordance with the standards indicated in entry A.05.20.01 in Appendix B of PFA Rules. There is no dispute about it. The standard shown in entry No.A.05.20.01 also permits presence of colouring powder vide sub entry No.(iv). The presence of such colour powder expressed as curcuminoid content on dry basis shall not be more than 2% weight. The only objectionable part appearing from the Public Analyst Report is thus : "------------------------------------------------ Artificial colouring matter Microscopic Exami- nation. ------------------------------------------------- Red & orange oil soluble Turmetic structure colour detected + Foreign starch. ------------------------------------------------" 9. It may be noticed that the percentage of red and orange colour is not shown in the report of the Public Analyst nor there is any reference to particular Rule under which the red and orange oil soluble colour is prohibited. The percentage of foreign starch is also not shown. 10 10. The Public Analyst was not examined before the learned C.J.M. The close scrutiny of the Public analyst would show that details regarding violation of a particular Rule of the PFA Rules are missing. The learned A.P.P. Smt. Reddy referred to entry No.A.26.14 which deals with synthetic foodcolours in preparation of mixtures. In the present case, basically, there is absolutely nothing stated about presence of any synthetic foodcolour noticed by the Public Analyst while analysing the turmeric powder. One does not know whether the red and orange oil soluble colour was synthetic colour or non- synthetic colour i.e. either herbal or organic colour as such. Unless violation of a particular Rule is borne out from the record, mere presence of such colour which was found to be soluble, will not render the sample as that of adulterated nature. The sample turmeric powder is thus not proved to be adulterated for the purpose of holding the Respondent answerable to the charge for the offence punishable U/s 7 read with Section 17 of the PFA Act. 11 11. In "The State of Maharashtra Vs. Trikamji Govindji Jani" 1987(1) PFA Cases - 328, A Single Bench of this Court held that unless it is proved that article is stored for sale, the Food Inspector is not competent to take charge of it and validly launch a prosecution thereof. He held that when the food article was seized from a canteen which was the place where edibles were being sold, specific evidence is required to show turmeric was stored in the canteen for sale. A similar view is taken in "State of Maharashtra Vs. P.M.Mulbbin" 1978 PFA Cases 23. The learned A.P.P. seeks to rely on "State of M.P. Vs. Ganesh Prasad and another" 2001 (1) FCA 268. The question whether a polythene bag could be regarded as suitable container for the purpose of sampling was dealt with in the given case. I do not find it necessary to consider such aspect of the matter in view of the foregoing reasons which are sufficient to uphold the order of acquittal. In my opinion the evidence of the prosecution is not sufficient to reach conclusion that the turmeric powder was stored for sale in the hotel 12 of the Respondent. It is not proved that the turmeric powder is adulterated and sub-standard. Consequently, I deem it proper to confirm the order of acquittal. (V.R.KINGAONKAR,J.) asp/office/Crappeal37997