jud-3-apeal-146-2004

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.146 OF 2004

The State of Maharashtra

]

(Through Food Inspector,

]

F.D.A., State of Maharashtra

]..Appellant

(Org. Complainant)

Vs.

1.

Ankush Pandurang Bawalekar

]

2.

Mahadeo Pandurang Bawalekar

]

Both r/o. Mahadeo Baug,

]

Survey No.4, Ling Mala

]

Mahabaleshwar, Dist. Satara

]..Respondents

----

Mr.R.M. Pethe, APP for the Appellant-State.

Mr.Ganesh K. Gole a/w Mr.Ritesh Ratnam and mr.Viraj Shelatkar

for Respondent Nos.1 and 2.

----

CORAM : C.V. BHADANG, J.

DATE : 7 DECEMBER 2021

JUDGMENT :

.

By this appeal, the Appellant-State, is challenging the

acquittal of the Respondents from the offence punishable under

Section 7(1) read with 2(ia)(a), 2(ia)(m) of the Prevention of Food

Adulteration Act, 1954.

N.S. Kamble page 1 of 10

jud-3-apeal-146-2004

2.

The prosecution case may be briefly stated thus :

The Respondent No.2 (Accused No.2) Mahadeo

Pandurang Bawalekar is the Proprietor of Mahadeobaug Strawberry

Garden which was being run at Lingmala Mahabaleshwar. The

Respondent No.1 Ankush Pandurang Bawalekar (Since deceased)

was vendor working in the said garden restaurant. On 9 May 1996

at about 5.00 p.m., the complainant Raosaheb Patil, PW-1 from the

Food and Drug Administration Department, had visited the shop of

the respondents and had purchased 900 grams mango ice-cream

from out of the 2 kgs stored in the deep freezer in the said shop.

The complainant also claims to have purchased a sample of

strawberry ice-cream, however, the present prosecution is only in

respect of the sample obtained from the mango ice-cream. The

samples were purchased for an amount of Rs.80/- for which a bill

was issued by the respondent No.1. According to the complainant

the ice-cream was not bearing any label. The sample was collected

in the presence of panch PW-3. PW-1 issued a notice in form No.VI

(Exhibit-43). The sample was divided into three equal parts which

were collected in dry and empty glass bottles. The complainant

added 36 drops of formalin i.e. 40% aqueous solution of

formaldehyde as preservative in each of the bottles. The bottles

were accordingly sealed in the presence of the panchas and the

panchnamma Exhibit-46 was drawn. A copy of the panchnamma

N.S. Kamble page 2 of 10

jud-3-apeal-146-2004

was given to the respondent No.1. One of the samples was sent to

the public analyst at Pune along with Form No.VII by hand by

Shri.A.B. Mane, who was the sampling assistant. The remaining two

samples along with copies of Form-VII were sent to Local Health

Authority (LHA), Satara by hand delivery through Mr.V.K.

Waghmare. The report of the public analysis dated 15 June 1996

(Exhibit-54) was received through LHA on 28 June 1996 which

showed the following ingredients in the ice-cream.

Total Solids

Milk fat

Proteins

% by wt.

%

% by wt

30.0

4.1

2.9

3.

According to the prosecution the sample was not

confirming to the standard of ice-cream as per item No.A.11.02.08

in Appendix ‘B’ of Prevention of Food and Adulteration Rules,

1955. The complainant after obtaining permission under Section 20

of the Act from the competent authority filed a complaint against

the respondents on 17 January 1997.

4.

The learned Judicial Magistrate First Class at

Mahabaleshwar, explained particulars of the offence to the

respondents to which they pleaded not guilty and claimed to be

tried. The defence of the respondents was of total denial and false

implication. It was contended that the samples were not collected as

per rules.

N.S. Kamble page 3 of 10

jud-3-apeal-146-2004

5.

At the trial, the prosecutio