- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO.227 OF 1997 APPEAL NO.227 OF 1997 APPEAL NO.227 OF 1997 The State of Maharashtra ...Appellant vs. S.Welmany ...Respondent Vendor and Prop. of Anna Ratna Biscuit Stores Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 3,2009 : MARCH 3,2009 : MARCH 3,2009 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned A.P.P in support of this Appeal against acquittal. This appeal takes exception to the order of acquittal passed by the learned Magistrate for offences punishable under section 16 and 17 of the Prevention of Food Adulteration Act,1954 (hereinafter referred to as the said Act). In this case, the order of acquittal passed by the learned Magistrate is on the ground of non compliance of sub clause (i) of clause (c) of sub section 1 of section 11 of the said Act of 1954. The learned Magistrate has held that after the Food Inspector obtained the sample of food for analysis, he had not sent an intimation to the Local Health Authority. The finding of the learned Magistrate is that on this ground, the prosecution is vitiated as the requirement of sending intimation to the Local Health Authority is a mandatory requirement. - 2 - 2. It will be necessary to refer to the decision of this court in case of State of Maharashtra vs. Raghunath Hindurao Gajbar (1984 Cr.L.J. page 198). In the said decision, this court specifically dealt with the question whether the requirement under sub clause (i) of clause (c) of sub section (1) of section 11 of the said Act is mandatory. Paragraph 9 of the said decision which considers this question reads thus: "9. The reason why I feel that the provision must be held to be mandatory is that the ultimate result of conviction of the accused is of very grave, serious and stiff character. If it is found, as a result of the analysis made by the Public Analyst of the sample sent to him by the Food Inspector that the sample contained more water than normally expected, the accused has to suffer rigorous imprisonment for a period of minimum six months in addition to the minimum fine of Rs.1000/-. If this is a position of law, then it will be reasonable to assume that the legislature expected the officer concerned to comply with each of the formalities prescribed by the statute very strictly. This necessarily means that the provision is mandatory in character. It cannot be lightly assumed that the legislature wanted the citizen to be sentenced to stiff penalty in a light hearted manner. If such stiff penalty is the ultimate result, - 3 - the manner in which the stiff penalty should be imposed has to be prescribed and once the legislature prescribes such manner the same has got to be observed strictly by the person who has been entrusted with the duty of implementation of the law by paying attention to each of the mandatory requirements prescribed by the law. I do not think that the court would be justified in taking the view that the legislature has made the provisions for intimation to Local Authority of certain facts an empty formality. The Act provides that before invoking the penal provision, certain requirements have got to be complied with. After compliance with those requirements the citizen may be sent to jail; but it cannot have been intended by the legislature that similar result would not follow even if the requirement was not complied with by the authorities concerned. . It It It is on this count that I am persuaded to hold that the is on this count that I am persuaded to hold that the is on this count that I am persuaded to hold that the requirement requirement requirement of giving intimation to the Local Authority of giving intimation to the Local Authority of giving intimation to the Local Authority of of of the fact that the same is sent by the Food Inspector the fact that the same is sent by the Food Inspector the fact that the same is sent by the Food Inspector to to to the Public Analyst must be construed to be a mandatory the Public Analyst must be construed to be a mandatory the Public Analyst must be construed to be a mandatory requirement. requirement. requirement. Once the requirement is held to be Once the requirement is held to be Once the requirement is held to be mandatory mandatory mandatory and once it is found that the requirement has and once it is found that the requirement has and once it is found that the requirement has not not not been complied with by the Food Inspector, it must been complied with by the Food Inspector, it must been complied with by the Food Inspector, it must follow follow follow that the prosecution fails...." that the prosecution fails...." that the prosecution fails...." - 4 - (emphasis added) 3. In view of the law laid down by this court, order of acquittal passed by the learned Magistrate on the ground of failure to send an intimation to the Local Health Authority cannot be faulted with. In any case, the view taken by the larned Magistrate is a possible view in the light of requirement of law laid down by this court in the case of State of Maharashtra Vs. Raghunath Hindurao Gajbar (supra). Hence, no case is made out for disturbing the order of acquittal. Appeal is accordingly dismissed. JUDGE JUDGE JUDGE