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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

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.]



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