JUDGMENT - V.S. KOTWAL, J.:---It is not only surprising but equally unfortunate the an incident that is alleged to have occurred in the year 1978 has given rise to a proceeding which till this day has remained undecided. The respondent accused was prosecuted before the learned trial Magistrate for an offence under section 7(i)(v) read with section 16 of the Prevention of Food Adulteration Act. It was alleged that he runs an Ice Candy Factory at Kolhapur. On 19-4-1978 the complainant Food Inspector visited the said factory along with two panchas. The respondent was present. Two types of ice candies were found in the factory, one red coloured and the other yellow coloured. This proceeding relates to red coloured candy since the proceeding pertaining to yellow coloured ice candy has finally terminated in the acquittal of the accused. After following the procedural formalities the sample of ice candy was purchased and after adding the formalin the same came to be sealed and ultimately forwarded to the Public Analyst who reported that it contains saccharine which is a non permissible sweetener and therefore the sample was adulterated. Necessary paper were then forwarded and sanction for prosecution was obtained from the Joint Commissioner, Pune Division, Food and Drug Administration, Maharashtra State, on 2nd of August, 1978 whereafter the Food Inspector filed complaint being Criminal Case No. 8101 of 1978 before the learned Chief Judicial Magistrate, Kolhapur for the said offence. 2. The respondent accused pleaded not guilty. He raised several contentions some of which related to the procedural technicalities. However, the learned Magistrate was persuaded to uphold the validity of one contention namely that addition of saccharine does not make the commodity in question as adulterated within the meaning of the said Act and as such no offence was committed by the accused. In keeping with these findings the learned Magistrate was pleased to acquit the respondent accused by his order dated 31st of August, 1979. 3. This order was challenged in this Court in Criminal Appeal No. 501 of 1980 by the State. The appeal was placed before the learned Single Judge for final hearing after it was admitted. Several contentions were raised on behalf of both the side. On behalf of the State it was mainly contended that it was an error to hold that addition of saccharine does not transform the commodity as adulterated. The appeal was placed before the learned Single Judge for final hearing after it was admitted. Several contentions were raised on behalf of both the side. On behalf of the State it was mainly contended that it was an error to hold that addition of saccharine does not transform the commodity as adulterated. The learned Counsel who appeared on behalf of the respondent before the learned Single Judge also raised several contentions in addition to those which were raised before the learned trial Magistrate. As stated, the learned Magistrate dealt with only one contention and since it found favour with him no finding was recorded on other questions. One of the contentions used before the learned Single Judge was that there has been breach of Rules 16 and 17 of the Rules framed under the said Act. This contention did not find favour with the learned Single Judge and it was negatived on merits. The learned Single Judge was not impressed by the finding of the learned trial Magistrate that addition of saccharine does not formulate and offence under the Act. However, a situation arose when the learned Counsel for the respondent before the learned Single Judge placed reliance on a decision of the learned Single Judge of this Court recorded in Criminal Appeal No. 146 of 1977. The learned Single Judge was persuaded to uphold the contention in that matter that addition of saccharine in the betel-nut Supari did not make it the adulterated article of food and on the same analogy it was contended before the learned Single Judge that addition of saccharine in the ice candy would not make an adulterated article of food. The learned Single Judge in the other matter which judgement was cited has placed reliance on certain rules. Those rules were reconsidered by the learned Single Judge hearing this very matter and the learned Single Judge had his own reservations about the correctness of that ratio enunciated in the matter which was the subject matter of Criminal Appeal No. 146 of 1977. The learned Single Judge felt that it did not lay down correctly the position in law, as according to him, even on the basis of the rules relied upon, the finding of saccharine in ice candy would make it an adulterated article of food. The learned Single Judge felt that it did not lay down correctly the position in law, as according to him, even on the basis of the rules relied upon, the finding of saccharine in ice candy would make it an adulterated article of food. However, in view of that disagreement the learned Single Judge felt that this was a fit case wherein the matter should be referred to the Division Bench that this point can be decided on that forum. It is under these circumstances that this appeal is placed before us for final disposal on reference having been made by the learned Single Judge formulating two points namely whether saccharine can be used in any article of food if the prescribed standard of that article of food does not permit the use of saccharine or any other artificial sweetener. The second portion was the corollary of food. 4. Shri Chopda, the learned Public Prosecutor for the State, no doubt endeavoured to support the reasoning assigned by the learned Single Judge and canvassed that the ice candy in question in which saccharine was found would be an adulterated article of food and therefore the case would be liable for a conviction under section 7(i)(v) read with section 16 of the said Act. Shri Chitnis, the learned Counsel for the respondent, however, sought permission to canvass an entirely different point though conceding that it is being so canvassed for the first time in this proceeding meaning thereby that it was not argued before the learned Single Judge. According to him, the consent of the sanction as prescribed under section 20(1) of the Act as accorded by the Joint Commissioner is wholly un-sustainable in law reflecting non application of mind and if that be so then the prosecution as is launched on that basis is itself not sustainable. According to him, the consent of the sanction as prescribed under section 20(1) of the Act as accorded by the Joint Commissioner is wholly un-sustainable in law reflecting non application of mind and if that be so then the prosecution as is launched on that basis is itself not sustainable. Shri Chitnis in that behalf sought to place reliance on the ration of a decision of this Court in (Gahininath Bhimarao Patekar v. State of Maharashtra and another)1, 1987 Maharashtra Law Journal 153 and some of the observations of the Supreme Court in (A.K. Roy and another v. State of Punjab and another)2, A.I.R. 1986 Supreme Court, 2160 in support of his contention since according to him the consent available in this case is practically on the identical patterns as that was available in the said other case and it was held by the learned Sing Judge of this Court that such a consent is not valid since it lacks application of mind. Shri Chopda, the learned Public Prosecutor for the State, mainly contended that since this point was not urged on any earlier occasion and not even before the learned Single Judge, it should not be permitted to be canvassed on this forum for the first time. Alternatively he submitted that even on merits the sanction as it stands is perfectly legal and valid as it reflects application of mind. 5. As we have indicated the alleged offence was committed on 19th of April, 1978 for which sanction was accorded on 2nd of August, 1978 and ultimately the prosecution was launched on 28th of November, 1978. The learned Magistrate recorded the order of acquittal on 31st of August, 1979. The learned Single Judge recorded the order under reference on 24th of January, 1983. Inspite of that the appeal was placed for final hearing for the first time in the year 1987. Thus the offence alleged to have been committed in April 1978 gave rise to a proceeding which is sought to be terminated one way or the other in June, 1978, that is, after more than nine years. This passage of time in our opinion has changed the complexion of the situation. It is submitted by Shri Chitnis, the learned Counsel, that the accused has abandoned the said business and is well settled in life. This passage of time in our opinion has changed the complexion of the situation. It is submitted by Shri Chitnis, the learned Counsel, that the accused has abandoned the said business and is well settled in life. The whole efficacy of hearing the appeal and making reference has practically frustrated or at least diluted on account of this passage of time for which the accused cannot be blamed. In our opinion, on this short premise we are not inclined to disturb the order of acquittal and as such it may not be necessary to express any opinion on the point referred to by the learned Single Judge. This is more so, since the point of sanction that is sought to be canvassed on behalf of the respondent, though for the first time on this forum, cannot be lightly brushed aside and would require anxious consideration especially when at least Prima facie it is sought to be supported by a ration of the decision of the learned Single Judge. It is true that we are hearing this appeal only on the reference made by the learned Single Judge and normally, therefore, it would have been necessary to decide the point under the reference one way or the other whereafter it would have been necessary to send back the matter to the learned Single Judge. However, both the learned Counsel agree that there is no propriety of sending back the matter after so many years and at least after four years after reference of the learned Single Judge and agreed that the matter should be finally disposed of one way of the other on this forum itself. 6. Under the peculiar circumstances, therefore, we are inclined to take the view that it would not serve the end of justice to disturb the order of acquittal on any count and which can be done conveniently without expressing any opinion on merits. All the points are, therefore, left open for being decided in a proper perspective. On this short premise the appeal is being disposed of. 7. Appear dismissed. The order of acquittal recorded in favour of the respondent-accused is confirmed. Appeal dismissed. -----