The appellate court must consider the presumption of innocence in favor of the accused and should not disturb the finding of acquittal unless it is perverse or the lower court's approach is vitiated by manifest illegality.

JUDGMENT :

1. Heard learned APP Ms. Jirga Jhaveri for the appellant –State and learned advocate Mr. Kanjibhai Bhut for the respondent at length.

2. The State has filed this acquittal appeal challenging the judgment and order dated 30.08.2010 passed by the learned JMFC, Oalpad in Criminal Case No. 500 of 1994 the offences punishable under Sections 2(a)(a) and misbranded as per section 2(ix)(d) of the Prevention of Food Adulteration Act, 1954 and as per Rule 44 (aaa) of the Prevention of Food Adulteration Rules, 1955 and Sections 16(a)(i)(ii) of the Prevention of Food Adulteration Act, 1954.

3. The brief facts of the case are that on 29/04/1994 the complainant along with helper visited the shop of the respondent-accused where the accused was doing his business of selling food articles. Upon checking carried out, the complainant decided to take sample of black pepper lying there in the shop. The complainant informed the accused that as he wanted to analyze before the Public Analyst, he purchased the same and issued Notice in the prescribed Form No.6 as per Rule 12. Thereafter, the complainant had purchased 600 Grams of black pepper and paid the amount thereof. The complainant has obtained the signature of the accused in a receipt regarding receiving of amount. Thereafter, the said sample of black pepper was stored in three airtight, cleaned and smell less bottles and sealed after following due procedure of law in the presence of the Panch Witness. The complainant also obtained signatures of panchas in the Panchnama he drew at the time of taking sample. Thereafter, he sent the samples to the Public Analyst, Bhuj for analysis. The Public Analyst after analyzing the sample opined as under:

"The sample of 'Kalamari loose' does not conform to the standards and provisions as laid down under the PFA Rules 1955."

After the report of the Public Analyst, the complainant obtained the permission of Local Health Authority and filed the complaint against the present accused in the Court of learned JMFC, Oalpad being Criminal Case No.500 of 1994.

The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution led evidence and on the conclusion of the trial, the learned JMFC, Oalpad, passed the acquittal order. Therefore, appellant State of Gujarat has preferred appeal under sec. 378(1)(3) of Criminal Procedure Code, 1973 against order of acquittal.

4. Learned APP Ms. Jirga Jhaveri for the State has taken this Court at different depositions as deposed by the witnesses and submitted that the learned JMFC has committed error in appreciation of evidence and also contended that the learned JMFC has not appreciated the oral and documentary evidence. Lastly, it is contended that the learned JMFC has committed error in arriving at the acquittal of the accused persons and therefore appeal may be allowed and reversion be made to the extent the conviction of the accused persons.

5. Per contra, learned advocate Mr. Kanjibhai Bhut for the respondent has heavily contended that firstly in the present case, the depositions of the witnesses, mandatory rule 14 is not complied, secondly the captioned sample bottles are not duly cleaned, which is also mandatory and therefore as per settled principle of law, the judgment and order passed by the learned JMFC is not required to be interfered by this Court and the appeal may be dismissed.

6. Having heard the arguments advanced by learned advocates for the respective parties and considering the materials available on record, this Court would like to refer as under:

6.1 Before adverting to the facts of the case, it would be worthwhile to refer to the scope of interference in acquittal appeals. It is well settled by catena of decisions that an appellate Court has full power to review, re-appreciate and consider the evidence upon which the order of acquittal is founded. However, the Appellate Court must bear in mind that in case of acquittal, there is prejudice in favour of the accused, firstly, the