-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 899 OF 2002 CRIMINAL APPEAL NO. 899 OF 2002 CRIMINAL APPEAL NO. 899 OF 2002 State of Maharashtra,at the instance of ¦ .. Appellant. Shri H.N.Ugale, Food Inspector, ¦ (Org.Complainant) FDA, Pune ¦ V/s. 1. Shri Dnyaneshwar Bhikoba Dhadage, ¦ (Vendor) r/o. Shikrapur, ¦ Tal. Shirur, Dist. Pune. ¦ ¦ 2. Shri Ramesh Bhikoba Dhadage, ¦ Proprietor of M/s. Sagar Provisions ¦ Stores, r/o. Shikrapur, Tal.Shirur, ¦ Dist. Pune. ¦ ¦ 3. Shri Subhash Babulal Gundecha, ¦ .. Respondents. Prop. of M/s. Subhash Babulal, ¦ (Org.Accused) R/s. Talegaon Dhamdhere, Tal. Shirur,¦ Dist.Pune. --- Mr.A.S. Shitole, APP for the Appellant- State. Mr.V.G.Peshave for the Respondent Nos. 1 to 3. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 19TH MARCH, 2009 DATED : 19TH MARCH, 2009 DATED : 19TH MARCH, 2009 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. The Appellant -State by the present Appeal takes exception to the impugned judgement and order, recording respondents acquittal under section 7(i) read with section 2(ia)(a), 2(ia) (m) punishable under section 16 of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as ‘PFA Act’). -: 2 :- 2. The respondent no.1 is a vendor and the respondent no.2 is the owner and proprietor of firm M/s. Sagar Provision Stores. The respondent no.3 is proprietor and licensee of firm M/s. Subhash Babulal. On 15th of May, 1995, the complainant Food Inspector alongwith the panch witness Dev Shankar and another Food Inspector Joshi visited M/s. Sagar Provision Stores and purchased two samples of groundnut oil each of 450 gms. from the accused no.1, after paying the price of the same. The present case pertains to the sample, which was taken from the sealed and labelled tin. The complainant thereafter devided sample of groundnut oil in three equal parts as per the procedure prescribed and the said samples were sealed by using sealing wax. The memorandum of panchanama recording the above said facts was drawn. It was signed by the respondent, panch and the complainant as well as another Food Inspector Joshi. One sample part was sent to the Public Analyst, Pune and two samples were sent to the Local Health Authority. After receipt of the report dated 6.6.1995 from the Public Analyst that the samples of groundnut oil does not conform to the standards, the complainant obtained necessary consent of the Jt. Commissioner to prosecute the respondents accused and filed the present complaint in court on 11.06.1996. -: 3 :- 3. The respondents were charged for the offence under section 7(i) read with section 2(ia) (a), 2(ia) (m) punishable under section 16 of the PFA Act. The charge was explained to the respondents-accused in vernacular. They pleaded not guilty and claimed to be tried. The prosecution in order to establish guilt of the respondents examined three witnesses, namely, PW-1 -the complainant Food Inspector, PW-2- panch witnesses Devshankar Maniklal Joshi and PW-3- Prakash Shivram Kulkarni, Local Health Officer. 4. The trial court after going through the evidence led by the prosecution and the relevant report of the Public Analysts acquitted the respondents and therefore, the present appeal. 5. There is no dispute that the accused nos. 1 and 2 purchased the groundnut oil from respondent no.3. There is also no dispute that at the time of taking sample, the groundnut oil was in the same condition. Further there is no dispute that the sample was taken from sealed and labelled tin. In view of these undisputed facts, the trial court was pleased to grant protection under the provisions of section 19(2) of the PFA Act and acquitted the respondent nos. 1 and 2. I find no error in the approach -: 4 :- adopted by the learned trial Judge. 6. Sofar as the accused no.3 is concerned, the learned Magistrate held that the complainant Food Inspector while taking sample did not comply with the provisions of section 11(1)(b) of the PFA Act. It was further held that even the provisions of Rule 14 and Rule 16(b) & (c) of the PFA Rules are not complied with. I have perused the evidence of the complainant. It does not disclose that before taking sample of groundnut oil from the tin, it was stirred well and made homogeneous. In the absence of the above, the sample which was taken by the Food Inspector cannot said to be representative sample. 7. PW-2 Joshi, the panch witness, has not supported the prosecution. PW-2 deposed that he was called after sample was collected and the sample was not taken in his presence. Under the provisions of section 10(7) of PFA Act 1954, the samples required to be taken in the presence of one or more persons. Since PW-2 has not supported the prosecution case, there is no evidence on record that complainant complied with above provisions. 8. There is one more circumstance, benefit of which deserves to be given to the accused, namely, that the Central Food Laboratory analysed the sample drawn by the -: 5 :- Food Inspector after long time on 05.01.1998 i.e. after about two and half years. PW-1 drawn the sample on 15.05.1995 and report of public analyst was received on 06.06.1995. Inspite of the receipt of this report, the prosecution was launched after a lapse of period of one year i.e. 11.06.1996. The respondent made an application to the court under section 13(2) of the PFA Act on 17.09.1997 and in pursuance of this application, the sample was sent to the Central Food Laboratory and report as stated above was received on 15.01.1998. There is no reference in the report as to when the sample was analysed and therefore, we can take that the sample was analysed on 15th January, 1998. Thus the sample was analysed after a period of two and half years, after drawing the same by PW-1 Food Inspector. The Apex Court in the case of Nebh Nebh Nebh Raj vs. The State (Delhi Administration) and anr. , Raj vs. The State (Delhi Administration) and anr. , Raj vs. The State (Delhi Administration) and anr. , reported in 1980 (II) Prevention of Food reported in 1980 (II) Prevention of Food reported in 1980 (II) Prevention of Food Adulteration Cases Adulteration Cases Adulteration Cases 192, 192, 192, held that in a cases of analysis by the Director Central Food Laboratory after long lapse of time, the possibility of free fatty acid content of the sample having increased enormously by oxidation during storage cannot be ruled out. The Apex Court also held that the prosecution launched belatedly, may result in causing harassment to the party. In the matter before the Apex Court, the sample was drawn on 17th October, 1970 and the same was analysed by the Central Food Laboratory on 2nd May, 1973. The fact -: 6 :- before the Apex Court and the facts of the present case are similar and therefore, the ratio of the said case is applicable to the present case. 9. In view of the above discussion, no interference is required in the impugned judgment and order of the trial court. The appeal is dismissed. (R.V.MORE,J.)