Bombay High Court
THE STATE OF MAH and ORSversusGORAKH ARJUN MARATHE and ANR
- Disposal
- DISMISSED
Holding
The appeal is dismissed; the trial court’s acquittal is upheld because microscopic examination is not a permissible analytical test and the procedural requirements of Section 13(2) were not satisfied.
Summary
The State of Maharashtra appealed the acquittal of two vendors, Gorakh and Mohan Marathe, who were charged under the Prevention of Food Adulteration Act, 1954 for allegedly selling adulterated chilli powder. A food inspector collected a sample, and the public analyst’s report indicated the presence of synthetic red and orange oil‑soluble colour on microscopic examination, but the chemical parameters were within permissible limits. The trial court held that microscopic examination alone does not constitute a valid analytical test and that the prosecution had not complied with the mandatory notice provisions of Section 13(2) of the Act, thus acquitting the accused. On appeal, the High Court relied on Supreme Court and High Court precedents (e.g., Jagdish Chandra v. State of UP) that microscopic evidence without chemical analysis is insufficient to prove adulteration, and affirmed that the procedural lapse was not remedied. Consequently, the Court dismissed the appeal, upholding the trial court’s judgment.
Issues considered
- Whether microscopic examination alone can establish adulteration of food articles under the Prevention of Food Adulteration Act, 1954.
- Whether non‑compliance with the notice and report delivery requirements of Section 13(2) of the Act vitiates the prosecution.
- Whether the trial court erred in acquitting the accused on the basis of the evidence presented.
Legislation cited
- Prevention of Food Adulteration Act, 1954 — s. 13(2), 16, 2(ia), 2(ia)(i), 2(ia)(m), 7(i), 7(v)
- Prevention of Food Adulteration Rules, 1955 — s. Rule 28, Rule 29
Subjects
- food adulteration
- Prevention of Food Adulteration Act
- microscopic examination
- chemical analysis
- procedural compliance
- Section 13(2)
- appeal dismissed
Judgment
2026:BHC-AUG:41740
CriAppeal-538-2006
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 538 OF 2006
The State of Maharashtra
(Bharatsing Umraosing Patil),
Food Inspector,
Food and Drugs Administration,
Maharashtra State. … Appellant
Versus
1. Gorakh Arjun Marathe,
Vendor of Marathe Industries,
Back Side of Shetki Sangh,
Nandurbar, Taluka Nandurbar,
District Nandurbar (Old Dhule).
2. Mohan Arjun Marathe,
Age 34 years,
Proprietor of Marathe Industries,
Back Side of Shetki Sangh,
Nandurbar, Taluka Nandurbar,
District Nandurbar (Old Dhule). … Respondents
[Ori. Accused]
…..
Mrs. Chaitali Chaudhari Kutti, APP for the Appellant-State.
Mr. C. C. Deshpande h/f Mr. C. R. Deshpande, Advocate for
Respondent Nos. 1 and 2.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 08.09.2026
Pronounced on : 10.09.2026
CriAppeal-538-2006
-2-
JUDGMENT :
1. State hereby challenges the judgment and order dated
20.02.2006 passed by learned J.M.F.C., Nandurbar acquitting accused
in R.C.C. No. 164 of 1997 from charges under Sections 7(i) r/w 2(ia)
(a), 2(ia)(i) and 2(ia)(m), Section 7(v) r/w Rules 28, 29 punishable
under Section 16 of the Prevention of Food Adulteration Act, 1954
[for short, “PFA Act”].
2. In brief, case of prosecution in trial court is that, PW1, a Food
Inspector, paid visit to the shop premises of accused, who was
involved in the business of manufacturing and selling food articles
like chilli powder. During visit, said article was found to be stuffed in
gunny bag. He collected sample by drawing panchanama and after
following the procedure, as contemplated under Rules and
Regulations of the Act, he sent the sample for analysis. The analyst
reported that sample did not confirm to the standards of chilli powder
as per PFA Rules 1955 and after receiving consent from higher
authorities, prosecution was launched against accused by filing
private complaint. Learned trial court issued process, allowed the
parties to adduce their evidence. Testimonies of PW1 complainant,
PW2 Chief Officer of Nagar Parishad, PW3 staff working in Dispatch
CriAppeal-538-2006
-3-
Section were duly appreciated and finally accused came to be
acquitted from all the charges. The said judgment and order of
acquittal is the subject matter of appeal at the instance of the State.
3. Learned APP would appraise this Court about the story of
prosecution in trial court. She took this Court through the length and
breadth of evidence of PW1, PW2 and PW3. According to her,
through the evidence of these witnesses, prosecution has proved
beyond reasonable doubt that accused was involved in the business of
manufacturing and sell of chilli powder which was found on analysis
to be adulterated. Thus, according to her, adulteration is proved by
prosecution in trial court and it is so evidence from the report of
analyst. She further pointed out that, PW1 has adhered to all Rules
and Regulations contemplated under the Act like giving prior notice,
seeking explanation and thereafter initiating action. According to her,
due procedure has been applied in consonance with the principles of
natural justice and as such, there is no infraction or infirmity on his
part, however, according to her, learned trial court has misread the
evidence as well as misinterpreted the Rules and Regulations of the
Act while acquitting the accused. Hence, she seeks indulgence by
allowing the appeal.
CriAppeal-538-2006
-4-
4. In answer to above, learned counsel for respondent accused
would justify the order of acquittal and he also took this Court
through the evidence on record as well as the reasons and findings
arrived at by learned trial court, and ultimately prays to dismiss the
appeal for want of merits.
5. Before adverting to the appreciation of evidence part, it would
be useful to reproduce, i.e. for reference, the relevant provisions
under which prosecution was launched.
Sec. 2. Definitions. -
In this Act unless the context otherwise requires, -
(i) ….
(ia) “adulterated” – an article of food shall be deemed to be
adulterated-
(a) if the article sold by a vendor is not of the nature,
substance or quality demanded by the purchaser and is
to his prejudice, or is not of the nature, substance or
quality which it purports or is represented to be;
(b) …..
to
(h) …..
(i) if the container of the article is composed, whether
wholly or in part, of any poisonous or deleterious
substance which renders its contents injurious to
health;
CriAppeal-538-2006
-5-
(j) ….
to
(l) ….
(m)if the quality or purity of the article falls below the
prescribed standard or its constituents are present in
quantities not within the prescribed limits of variability
but which does not render it injurious to health;
Provided that, where the quality or purity of the article,
being primary food, has fallen below the prescribed
standards or its constituents are present in quantities
not within the prescribed limits of variability, in either
case, solely due to natural causes and beyond the
control of human agency, then, such article shall not be
deemed to be adulterated within the meaning of this
sub-clause.
Sec.7. Prohibitions of manufacture, sale, etc., of certain articles
of food.-
No person shall himself or by any person on his behalf
manufacture for sale, or store, sell or distribute-
(i) any adulterated food;
(ii) …
to
(iv) …
(v) any article of food for sale of which is for the time being
prohibited by the Food (Health)Authority in the interest of
public health;
(vi) …
CriAppeal-538-2006
-6-
Explanation :- For the purposes of this section, a person shall be
deemed to store any adulterated food or misbranded food or any
article of food referred to in cl. (iii) or cl. (iv) or cl. (v) if he
stores such food for the manufacture therefrom of any article of
food for sale.
Rule 28 and 29 of the PFA Rules, 1955 punishable u/s 16
of the PFA Act.
28. Synthetic food colours which may be used.-
No synthetic food colours or a mixture thereof except the
following the shall be used in food :
Sl. Colour No. Common Name Colours Chemical Class
No. Index
(1956)
1 Red Ponceau 4 R 16255 Azo
Carmoisine 14720 Azo
Erythrosine 45430 Xanthene
2 Yellow Tartrazine 19140 Pyrazolone
Sunset Yellow FCF 15985 Azo
3 Blue Indigo Carmine 73015 Indigoid
Brilliant Blue FCF 42090 Triarymethane
4 Green Fast Green FCF 42053 Triarymethane
29. Use of permitted synthetic food colours prohibited.-
Use of permitted synthetic food colours in or upon any food
other than those enumerated below is prohibited-
(a) Ice-cream, milk lollies, frozen dessert, flavoured milk,
yoghurt, ice-cream mix-powder.
(b) (b) Biscuits including biscuit water, pastries cakes
confectionary, thread candies, sweets, savouries
(dalmoth, mongia, phuluab, sago papad, dal biji only);
CriAppeal-538-2006
-7-
(c) Peas, strawberries and cherries in hermitically sealed
container preserved or processed papaya, canned
tomato juice, fruit syrup fruit squash, fruit cordial,
hellies, jam, marmalade, candies crystallied or glazed
fruits.
(d) Non-alcoholic carbonated and non-carbonated ready to
serve synthetic beverages including synthetic syrups,
sherbets, fruit beverage, fruit drinks synthetic soft drink
concentrates;
(e) Custard powder;
(f) Jelly crystal and ice-candy
(g) [omitted]
(h) Flavour emulsion and flavour paste for use in
carbonated or non-carbonated beverage only under
label declaration as provided in Cl. (13) of sub-rule
(zzz) of Rule 42.
Whereas, Section 16 of the PFA Act deals with penalties.
6. Heard both sides to their satisfaction. In this appeal by State,
principal ground of challenge is that, public analyst had, after
analyzing the sample, noticed as under :
“Microscopic Examination :- Chilly Structure;
Test for Colour :- Synthetic viz Red and Orange Oil
soluble colour detected”
CriAppeal-538-2006
-8-
Said report is at Exhibit 33. It is submitted that learned trial
court erred in holding that microscopic test is not permissible.
According to learned APP, Appendix B, A05.05 of the PFA Rules 1955
deals with chillies, and the produce has to be free from added
colouring matter, coating of mineral oil and other harmful substances.
7. Para 32 of the impugned judgment contains a comparative
chart mentioning the percentage of components mentioned the P.A.
Report as well as the standard prescribed under the Rules. For ready
reference, the said chart is reproduced hereunder :
Sr. No. 1 Moisture as prescribed not more As found in sample in
than 12.0% by weight P.A. Report 9.4%
by weight
Sr. No. 2 Total ash percentage as As found in sample in
prescribed not more than 8.0 by P.A. Report 4.2%
weight by weight
Sr. No. 3 As prescribed Ash insoluble in As found 0.52% by
dilute H.C.L. not more than 1.3% weight in P.A. Report
by weight
Sr. No. 4 Non volatile ether extract As found 23.9% by
percentage not less 12.0% by weight in P.A. Report
weight
Sr. No. 5 Crude fiber as prescribed in total As found 22.12% by
not more than 30.0% weight in P.A. Report
CriAppeal-538-2006
-9-
8. On carefully going through the report under question, it is
noticed that, essential parameters are within permissible limit.
However, analyst has reported that on microscopic examination of
chilli powder, he noticed synthetic viz red and orange oil soluble
colour.
9. Further, it is also noticed that, the table A.05.05.01 of Appendix
B has defined chillies and capsicum to mean the powder obtained by
grinding clean ripe fruits or pods of the capsicum Annum L and
capsicum frutescens L, and that it shall be free from mould, living and
dead insects, insect fragments, rodent contamination. The powder
shall be dry, free from dirt, extraneous colouring matter, flavouring
matter, mineral oil and other harmful substances. The chilli powder
may contain any edible vegetable oil to a maximum limit of 2.0% of
weight under a label of declaration for the amount and nature of oil
used, and its percentage is also provided in the form of chart.
However, here, the analyst has not noticed any extraneous matter or
material and what he reported is finding “synthetic viz red and orange
oil soluble colour” on microscopic examination. Even on microscopic
analysis, exact percentage has not been recorded by the analyzer.
CriAppeal-538-2006
-10-
10. The Hon’ble Apex Court in the case of Jagdish Chandra v. State
of Uttar Pradesh reported in AIR 1981 SC 1233, has observed as
under :
“Where the accused was convicted for selling adulterated
‘dalchini’ (cinnamon) but the Public Analyst performed only
microscopic test and not the chemical test for analysing an
alleged adulterated sample of Dalchini (Cinnamomum
Zeaylanicum Knees), the accused could not be convicted on
the report of the Analyst as the prosecution could not be said
to have proved beyond reasonable doubt that what the
accused sold to Food Inspector was in fact cinnamon
(Dalchini).
Items A.05.06 and A.05.06.01 of App.B would show that the
percentage of the various ingredients such as ash, insoluble
in HCL, or volatile oil or moisture in the sample of Dalchini,
cannot be ascertained with any degree of accuracy by mere
ocular examination under a microscope. Chemical tests
including treatment of the ash in the sample with
Hydrochloric Acid would be a must
The learned public prosecutor, though unable to counter this
legal contention, yet he would make an attempt to point out
that this is not a case wherein the sample was not subjected
to chemical analysis and consequently, the legal contention
raised by the learned Counsel for the petitioners is of no
CriAppeal-538-2006
-11-
avail. He would actually draw my attention to the Public
Analyst's report. The public Analyst would in fact report that
the sample contains ash insoluble in dilute HCL in excess of
the maximum permitted limit to the extent of 15 percent.
This, the Public Prosecutor would say, would throw some
light that the sample in fact was subjected to chemical
analysis, though this report does not disclose in explicit and
express terms that the sample was subjected to chemical
analysis. This argument of the learned Public Prosecutor,
I am unable to accept, for the simple reason that the report
of the public Analyst mentioned the heading of the first
column as ‘Microscopic Examination’ and under this column,
“Moisture contents, Total ash. Ash insoluble in dilute HCL”
are mentioned. This will pin-pointedly show that all these
contents are detected by the Analyst only on microscopic
examination and not otherwise. In such state of affairs,
I have no hesitation in coming to the conclusion that the
sample was not at all subjected to chemical analysis. In such
a situation, it naturally follows that the legal contention of
the learned Counsel for the petitioners on this aspect of the
matter, ably supported by the decision of the Supreme Court
as referred to above, has to be accepted.”
11. The above referred judgment is also referred and relied by the
Madras High Court in the case of Madurai Pandian Co-operative Mini
Super Market, Madurat and others v. State by Food Inspector,
Madurai Corporation [Cri MP No. 4667/1985 decided on
CriAppeal-538-2006
-12-
09.09.1988]. A similar view is taken by the Rajasthan High Court in
Niranjan G. Khatri and others v. State of Rajasthan [S. B. Cr. Misc.
Petition No.1517/2012 decided on 18.07.2012].
12. In the light of above settled position, there is no error on the
part of learned trial court in precluding the results which were yielded
on microscopic examination as, neither the very Act nor legislature
provides or acknowledges such test to be carried out or relied.
Microscopic examination is not analytical test or chemical analysis
test, and as such, has no sanctity.
13. The another ground raised before learned trial court by present
respondent-accused is that, there is non compliance of Section 13(2)
of the PFA Act. Section 13(2), for ready reference, is reproduce
hereunder :
“13. Report to Public Analyst. -
(1) ….
(2) On receipt of the report of the result of the analysis
under sub-section (1) to the effect that the article of food
is adulterated, the Local (Health) Authority shall, after the
institution of prosecution against the person, if any, whose
name, address and other particulars have been disclosed
CriAppeal-538-2006
-13-
under Sec. 14-A, forward, in such manner as may be
prescribed, a copy of the report of the result of the analysis
to such person or persons, as the case may be, informing
such person or persons that if it is so desired, either or
both may make an application to the Court within a period
of ten days from the date of receipt of the copy of the
report to get the sample of the article of food kept by the
Local (Health) Authority analysed by the Central Food
Laboratory.”
14. Here, it is noticed that PW2, who is a Chief Officer of a Local
Body, has set up a claim before the court that, there is compliance of
Section 13(2) of the PFA Act. However, record and judgment of
learned trial court shows that, though said witness asserted and
accepted compliance of Section 13(2) and assured to place on record
the acknowledgment signed by accused about receipt of P.A. Report,
the same has not been placed on record. What PW3 seems to have
done is that he has merely produced postal receipt containing vague
address of accused to be resident of Nandurbar. Postal address of
accused is not appearing therein and therefore, mere production of
copy of covering letter is not sufficient compliance and law to this
extent has been touched and dealt by this High Court at Principal Seat
in the case of Pimpri Chinchwad Nagarpalika v. Giriraj Chiranjilal
Sharma and another [1998 Cri.L.J. 4354] while deciding Criminal
CriAppeal-538-2006
-14-
Appeal No. 179 of 1985, as well as in the case of State of
Maharashtra v. Vinayak Mahadeorao Waze and another 2005 Cri.L.J.
2100 wherein it has been categorically held that mere production of
copy of covering letter is not sufficient evidence of delivery and Rule
9(A) to have not been complied with.
15. Therefore, due to such non compliance of mandatory
procedure, definitely prejudice has been caused to the accused before
learned trial court.
16. In view of the above, as there is no infirmity or illegality in the
of manner of appreciation, this Court does not find it to be a fit case
to interfere. Hence, the following order :
ORDER
The Criminal Appeal is hereby dismissed.
[ABHAY S. WAGHWASE, J.]
vre
Checking your session…