Hon'ble Mrs. Vijay Lakshmi,J.

Counter affidavit filed today by learned A.G.A. is taken on record.

2. Heard learned A.G.A. Perused the record.

3. This appeal against acquittal has been filed by Nagar Swasthya Adhikari, Nagar Maha Palika, Agra and is pending since the year 1979.

4. Except learned A.G.A. no one is present on behalf of either side.

5. The record shows that on 11.01.2018, this Court had passed the following order :-

"The present criminal appeal has been preferred by the Nagar Swasthya Adhikari, Nagar Palika, Agra against the judgment and order dated 26.5.1978 passed by then Additional Chief Judicial Magistrate, Agra, in Criminal Case No.3095 of 1977, acquitting the respondents from an offence under Section 7/16 of the Prevention of Food Adulteration Act.

Sri N.C. Upadhyay, learned counsel for the appellant is stated to be no more.

From the perusal of the record it appears that leave to appeal has been granted and the appeal has been admitted but there appears to be no impugned judgment of the trial court annexed with the said memo of the appeal. It is more disturbing to note that the said appeal has been reported but the said fact has not been taken into note by the person who was reporting the criminal appeal.

As the appeal is against the acquittal, and the impugned judgment has not been annexed with the said appeal, hence it is not possible to decide the said appeal on merit without lower court record.

As per office report dated 1.12.2007 it has been reported that though requisition to summon the lower court record was issued but the same has not been received back and further office report dated 14.9.2008 shows that the lower court record is still awaited.

O.S.D. (Criminal) shall enquire from the District Judge whether the record of the said appeal is still available in the district court concerned or not and if the same is available, the same may be summoned within two weeks immediately.

List after two weeks."

6. In compliance of the aforesaid order, the Officer on Special Duty (J.)(Crl.) submitted the report dated 5.2.2018 which is as follows :-

"In compliance of above order, letter no. 2045 dated 19.01.2018 was issued to the District Judge Agra. Thereafter District Judge, Agra vide letter no. 414/XV dated 01.02.2018 sent though e-Mail forwarded the report of Sri Anmol Pal, Officer Incharge, Record Room (Criminal)/Additional District Judge, Court No. 09, Agra in which it has been stated that the Officer Incharge, Record Room (Judicial), Collectorate Agra has informed that the files pertaining to Food Adulteration Act upto the year of 1981 were consigned in the Record Room, Collectorate, Agra. It has been further stated that the City Magistrate-II/Officer Incharge, Record Room (Judicial) through his letter dated 31.01.2018 has informed that the concerned file has been weeded out on 26.07.1983. The copy of letter dated 31.01.2018 of City Magistrate-II/Officer Incharge, Record Room (Judicial), Agra has also been enclosed with the said letter dated 01.02.2018 forwarded by the District Judge, Agra and the letter dated 31.01.2018 of City Magistrate-II/Officer Incharge, Record Room (Judicial) has also been received through Fax."

7. From a perusal of the aforesaid report of O.S.D. (J.)(Crl.) it is clearly evident that the original record has been weeded out as far back as on 26.7.1983 and a period of about 35 years has elapsed since the weeding out of the original record. Even the copy of the impugned judgment is not available due to the reason that at the time of filing of this appeal the Stamp Reporter did not report that the copy of the impugned judgment has not been filed by the appellant. As a considerable period of 35 years has expired, it cannot be said whether after such a long period the witnesses are still available or not. Even if the witnesses are available, the copies of their statements recorded by the I.O. under Section 161 Cr.P.C. will certainly be not available. Under these circumstances, n