1 Cri.Appln. No.410/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.410 OF 2011 The State of Maharashtra ... APPLICANT VERSUS Shri Vilas P. Ramu Rathod ... RESPONDENT ..... Shri N.H. Borade, A.P.P. for the applicant/State Shri S.R. Kedar, Advocate for the respondent ..... CORAM : U.D. SALVI, J. DATED : 22nd August, 2011. PER COURT : 1. Heard. Perused the leave application and record and proceedings. 2. The State has preferred this application for grant of leave to present an appeal against the judgment and order dated 23.7.2010, passed by the Judicial Magistrate, First Class, Kinwat, acquitting the respondent/ accused of the offences punishable under Section 7(i) read with Section 2(ia) (a), 16(i)(a)(ii), 7(i) read with Section 2(ia)(m), 7(v) read with Rule 32(i) and Section 16(i)(a) 2 Cri.Appln. No.410/2011 (i) and 16(i)(a)(ii) of the Prevention of Food Adulteration Act, 1954 and Rules, 1955. 3. It is the case of the prosecution that, the accused, owner of M/s Yogesh Kirana Stores, Mandvi, Taluka Kinwat, District Nanded stored and sold groundnut and coconut (Poshak) oil in contravention of the provisions of Prevention of Food Adulteration Act, 1954 and as a consequence thereof, the complainant P.W.1 Suresh Chandulal Tiwari, Food Inspector had purchased the offending food stock i.e. groundnut and coconut oil at 2.00 p.m. on 6.9.2000 in the presence of panchas P.W.4 Narayan Bavne and Mr. S.S. Kshirsagar, Food Inspector, and the samples drawn from the said food articles, purchased from the Provision Stores of the accused, according to the prosecution, has confirmed the contravention of the Prevention of Food Adulteration Act, 1954. 4. Charge at Exh. 55 for offence under Section 7(1) punishable under Section 16(i)(a)(ii), under Section 2(ia)(a) punishable under Section 16(i)(a)(ii), under Section 2(ia)(m) punishable under Section 16(i)(a)(i), under Section 7(i), punishable under Section 16(i)(a)(i), under Section 7(v) of Rule 32(1) punishable under Section 16(1)(a)(ii) of the Prevention of Food 3 Cri.Appln. No.410/2011 Adulteration Act was framed on 28.10.2005. The accused pleaded not guilty and as a result thereof, the prosecution was required to examine its witnesses namely P.W.1 Suresh Tiwari, Food Inspector, P.W.2 Dilip Joshi, Drug Inspector attached to the Food & Drugs Administration Office, Nanded, P.W.3 Arun Udoji, Assistant Commissioner, Food & Drugs Administration Office, Nanded and P.W.4 Narayan Bavne, panch. It is revealed that, the trial Court refused to believe the prosecution case for the reason of non examination of any independent witness to the fact of seizure of the offending articles from the shop of the accused. 5. Learned A.P.P. submitted that, P.W.1 Suresh Tiwari, the Food Inspector, did testify before the trial Court regarding the purchase of the offending food articles from the shop of the accused, drawing of the samples, sending of the samples to the Chemical Analyser and the report confirming the contravention of the Prevention of Food Adulteration Act, 1954, and considering all this together, the trial Court was persuaded to hold the respondent/ accused guilty of the crime. Learned A.P.P., however, concedes that there is no independent evidence in support of the official testimonies concerning the seizure of the offending articles. 4 Cri.Appln. No.410/2011 6. The learned trial Court, at paras 32 and 33 of the impugned judgment, made following observations : “32. That the prosecution had examined witnesses from the Food & Drug Administration and they were bound to recount their statements purposefully to see that the accused was punished. Nevertheless the prosecution did not examine any independent witnesses who could have testified about the seizure of the offending articles from the accused. From the perusal of the record, in the present case, it is clearly seen that the learned prosecutor had made a statement on 1.9.2008 before the trial Court that the prosecution was not to examine independent witness – seizure panch Mr. S.S. Kshirsagar and thereafter the statement of the accused with reference to the evidence on record came to be recorded as per Section 313 of the Criminal Procedure Code. 33. Taking total view of the entire evidence on record, it is clear that the prosecution has proved that the oil seized was adulterated and for that pupose, report Exh. 46 has been tendered in evidence. However, the prosecution did not conclusively prove that the seized oil was seized by the complainant from the accused only. By not examining the important witness S.S. Kshirsagar, the prosecution did not cogently explain as to why the said witness was not examined. Moreover, the prosecution witness Narayan Urkuda Bavne in his cross-examination candidly admitted that the accused did not have any Provision Stores at Mandvi. In these circumstances, seizure of oil from the accused becomes suspicious for want of uncontroversial evidence and the accused deserves the benefit of reasonable doubt and as such, his acquittal is justifiable. 5 Cri.Appln. No.410/2011 7. Moreover, there is no reason forthcoming from the evidence as to why after the hostility of witness P.W.4 Narayan Bavne, the co-panch S.S. Kshirsagar was not examined by the prosecution. P.W.4 Narayan Bavne was also not confronted with the receipt Exh. 35, which purported to record the transaction of sale and purchase of the offending articles from the shop of the respondent/ accused, despite the fact that it was handwritten and not printed receipt. 8. A debate over the impugned judgment fails to reveal any material flaw in the findings arrived by the learned trial Court. No valid purpose would, therefore, be served by granting leave to prefer the appeal against the impugned judgment and order. Leave is, therefore, refused. ( U.D. SALVI, J. ) fmp/cri410.11