Respondent No. 1 - Haji Abdul A. Habib Gigani is reported to be dead on 5/2/2009. Death Certificate is filed on record, which is marked as “X” for identification. No legal representative of the said respondent has applied for continuation of the appeal. Hence, appeal as against respondent No. 1 abates and is dismissed as such.

2. This Appeal is directed against the Judgment and Order dated 11/10/2000, passed by 6th Judicial Magistrate First Class, Akola in Criminal Case No. 1055 of 1995 whereby the learned trial Judge acquitted the respondents-accused of offenses punishable under Section 7(1) read with Section 16(ia)(i) and (ii) of the Prevention of Food Adulteration Act.

3. The facts briefly stated are: -

The complainant - Food Inspector had received charge of the case from earlier Food Inspector Shri S. M. Deshmukh, who had taken the sample of Sunflower Seed Oil on 10/1/1992, at about 14.30 hrs., from the shop of M/s Rafik Traders, Kirana Bazar, Akola. The Respondent No.1-accused was vendor while respondent-accused No. 2 is proprietor of the shop. It is prosecution case that the sample was collected as per panchanama from M/s Rafik Traders, Akola. It is case of the complainant that the sealed sample was sent to Public Analyst at Pune and the report was received on 21/02/1992. The remaining sample was sent to Local Health Authority under Section 11 (1)(c)(i) and documents were forwarded to Joint Commissioner, Food and Drug Administration, Nagpur. Consent order was obtained to launch the prosecution and thus complaint was filed in the Court of Judicial Magistrate First Class, Akola being Regular Criminal Case No. 1113 of 1992. The accused who availed of remedy under Section 13 (2) of the P.F.A. Act and sent a part of the food sample to Central Food Laboratory, Gaziyabad. But due to discrepancy between the reports of the Public Analyst and the Director of the Central Food Laboratory, Gaziyabad and owing to lack of fresh consent order, the accused were discharged on 5/09/1995. On 20/09/1995, again the complainant obtained certified copy of the case and report of the Central Food Laboratory and submitted it for the fresh consent order from the Joint Commissioner which was received on 28/11/1995. The charge was framed against the accused at Ex.28 pursuant to the order dated 28/02/2000 below Ex.1. The question raised was; as to whether M/s Rafik traders, Akola sold adulterated Sunflower Seed Oil to the complainant? It was answered in the negative by the trial Court.

4. Heard submissions at the bar. According to learned APP, the Public Analyst at Pune had reported the sample of Sunflower Oil shown the presence of Castor Seed Oil, reported that the Sunflower Seed Oil did not conform to the standards of Sunflower Seed Oil. While the Director of Central Food Laboratory, Gaziyabad does not conform to the standard of Sunflower Seed Oil as Saponification value is more than that of prescribed limit and Baudouin test was positive 2 red unit therefore, the sample was adulterated. It is contention of learned APP that the trial Court committed an error to hold that the accused had sold Sunflower Seed Oil to the complainant in the same state of condition and nature as purchased from the manufacturer. Learned APP also submitted that delay was condonable in view of Section 473 of the Cr.P. Code, if it is properly explained and if necessary. On the other hand, learned Advocate for the Respondent No.2 submitted in view of the facts of the case that the accused were rightly acquitted. Learned Advocate submitted that the trial Court had shown leniency to entertain the complaint again even though earlier the accused were discharged from the case.

5. Three witnesses were examined by the prosecution to support the complaint. The trial Court noted that the prosecution ought to have called the entire record of the earlier Regular Criminal Case No. 1113 of 1992, which was earlier disposed of to show that while sending food sample to Central Foo