State vs. Ashwin Burabhai Patel and 2 Ors. Vs Ashwin Burabhai Patel and 2 Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 592 OF 1995

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 The State of Maharashtra ...Appellant.

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 Versus

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 1. Ashwin Burabhai Patel,

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 2. Mavji Jeevraj Patel,

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 3. Gyanchand Swami Gupta,

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 All R/o. Gyanchand Swami
 Gupta, Room No.8,
 Tribhuvandas Chawl,
 Daruwala Compound,
 S.V. Road, Malad (West),
 Mumbai 64. ...Respondents.

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 .....
 Shri. A.S. Shitole, A.P.P. for Appellant.

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 Shri. N.B. Shah, Adv. for respondents.

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CORAM: SMT. V.K. TAHILRAMANI, J.

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DATED: 9TH DECEMBER, 2004

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ORAL JUDGMENT:-

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 1. Through this appeal, the appellant i.e. the
 State of Maharashtra challenges the judgment and
 order dated 15.12.1994 passed by the learned
 Additional Chief Metropolitan Magistrate, 46th
 Court, Mazgaon, Mumbai in C.C. No. 367/S/89. By

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 the said judgment and order the learned Magistrate
 acquitted the respondents i.e.original accused Nos.
 1 to 3 of the offence under Section 2(ia)(m) r.w.
 7(i)(iii) r.w. 16(a) and 17 of the Prevention of
 Food Adulteration Act, 1954 r.w. Rule 50 of Food
 Adulteration Rules, 1955.

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 2. The brief facts of the case are as under:-

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 . The shop owned by the respondent No.3 is
 situated at Room No.8, Tribhuvandas Chawl, Daruwala
 Compound, S.V. Road, Malad (W), Bombay-64. The
 respondent No.1 is the vendor, respondent No.2 is
 the conductor and respondent No.3 is the proprietor
 of the said shop. The complainant P.W.2 Food
 Inspector Shri. Prakash Halmanyar on 22.1.86 at
 about 4.00 p.m. visited the shop of the
 respondents and drew a sample of Ground Nut Oil of
 450 gms and divided it into three equal parts for
 analysis under panchanama Exh.P-28. The necessary
 procedure of sealing and labelling was done in
 accordance with the rules and laws. The panch
 witness at the said time was P.W.4 Shri. P.D.
 Navle. The complainant received the report of the
 Public Analysis that the sample was found to be
 adulterated hence, he obtained sanction for
 prosecution against the respondents from the Joint
 Commissioner. Thereafter, P.W.2 Shri. Halmanyar

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 filed his complaint against the respondents. He
 also complied with other remaining legal
 formalities.

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 3. The particulars of the accusation under
 Sections 2(ia)(m) r.w. 7(i)(iii) r.w. 16(a) and
 17 of the Prevention of Food Adulteration Act, 1954
 r.w. Rule 50 of Food Adulteration Rules, 1955 was
 explained to the respondents. All of them pleaded
 not guilty and claimed to be tried.

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 . Four witnesses have been examined by the
 prosecution. P.W.1 Shripad Ravindra Chitnis, Clerk
 from the local authority, the complainant P.W.2
 Shri. Prakash Halmanyar is the Food Inspector,
 P.W.3 Shri. P.S. Joshi is the Public Analyst and
 P.W.4 Shri. P.D. Navle is the panch witness. On
 going through the evidence adduced by the
 prosecution the learned Magistrate acquitted the
 respondents i.e. accused Nos. 1 to 3 of the
 offences charged. Hence, this appeal.

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 4. I have heard Shri. Shitole, the learned A.P.P.
 for the appellant-State and Shri. Shah, the
 learned advocate for the respondents. I have also
 perused the entire material pertaining to the
 present case. After carefully considering the
 matter, I am of the opinion that this appeal

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 (-4-)

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 deserves to be dismissed.

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 5. As far as the point of drawing of sample of
 Ground Nut Oil and preparation of the panchnama of
 the said fact is concerned, the complainant as well
 as the panch witness P.W.2 Prakash Halmanyar and
 P.W.4 Shri. Navle have deposed on this aspect.
 Nothing has been elicited in their cross
 examination so as to disbelieve them on the aspect
 of drawing of sample and preparation of panchanama.
 The evidence on record is also sufficient to hold
 that the complainant P.W.2 Prakash Halmanyar is a
 qualified Food Inspector.

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 6. However, Rule 16(A) states that:

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 "The stopper shall first be securely
 fastened so as to prevent leakage of the
 contents in transit."

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 . Rule 16(c) prescribes the method of affixing the
 papers slip over the sample bottle which should be
 from bottom to top of the container. However, from
 the evidence on record it is clear that this
 procedure was not carried out by the Complainant
 P.W.2 Shri. Prakash Halmanyar. So also the

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 complainant has not complied with mandatory duty as
 imposed under Section 11(1)(c)(i) of the Prevention
 of Food Adulteration Act i.e. giving intimation to
 the Local Health Authority. All these facts have
 been taken into consideration by the learned
 Magistrate while acquitting the respondents.

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 7. While acquitting the respondents, the learned
 Magistrate has also relied on the judgment of this
 Court (Nagpur bench) reported in F.A.C. 1985
Vol.II page 88, wherein it is observed that the
 Public Analyst’s report must show :

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 "Whether the adulterated sample is

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 injurious to public health or not".

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 . It is further observed that otherwise such type
 of report is treated vague and defective and it
 cannot be made the base of conviction. The report
 of the Public Analyst (Exh.P-9) is silent in this
 regard. Looking to the evidence on record, it
 cannot be said that the learned Magistrate erred in
 taking such a view.

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 8. The view taken by the learned Magistrate while
 acquitting the respondents is a reasonable and

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 possible view. It is well settled that if the view
 of acquittal could have been reasonably arrived at,
 then the mere circumstance that the appellate Court
 would have taken a different view, would be no
 ground to interfere. In this connection, there is
 no dearth of authorities but to eschew prolixity, I
 am only referring to two of them i.e. A.I.R. 1971

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S.C. 66 (Khedu Mohton Vs. State of Bihar) and
(2003) 1 S.C.C. 1 (C. Anthony Vs. K.G. Raghavan

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Nair). In the case of C. Anthony, the Supreme
 Court has observed that unless findings of the
 trial Court are perverse or contrary to the
 material on record, the High Court cannot in
 appeal, substitute its findings merely because
 other contrary opinion was possible on the basis of
 the material on record. In my view, the view of
 acquittal was a reasonable and possible view.

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 9. Taking all these facts into consideration, the
 conclusion arrived at by the learned Magistrate
 that the prosecution has not proved its case, is a
 possible and reasonable view, hence, no case is
 made out for interference. Criminal appeal is
 dismissed. The appellants are on bail, their bail
 bonds stand cancelled.

State v. Ashwin Burabhai Patel and 2 Ors. v Ashwin Burabhai Patel and 2 Ors.

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State v. Ashwin Burabhai Patel and 2 Ors. v Ashwin Burabhai Patel and 2 Ors.

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