JUDGMENT - KHANWILKAR A.M., J.:---This appeal takes exception to the judgment and order passed by the Judicial Magistrate, First Class, Ichalkaranji dated June 30, 1986 in Criminal Case No. 3 of 1980. The respondent Nos. 1 to 3 original accused were charge-sheeted for offence punishable under section 7(i), (v) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 for storing and selling adulterated ground nut oil. Briefly stated, on 22-8-1989 at about 4.30 p.m. the complainant along with two panch witnesses visited the shop of the accused who is a wholesale business merchant of ground nut oil and Soyabin oil under the name of accused No. 3 i.e. M/s. Basavraj Oil Trading Company situated in House No. 168, Ward No. 10, Ichalkaranji. The accused No. 2 is the son of accused No. 1 who is authorized to look after the business of accused No. 3 firm in the absence of accused No. 1. It is the prosecution case that the samples of ground nut oil were collected by giving notice to the accused, after disclosure of the identity of the complainant and necessary amount was paid for purchasing the said sample. 2. The matter went for trial as Criminal Case No. 3/1980, before the trial Court. Four contentions were raised on behalf of the accused. Out of the said contentions, the trial Court accepted the contention Nos. 3 and 4 and therefore, found the accused not guilty of the alleged offence. The contention Nos. 3 and 4 read thus: “A) The oil barrels from which the samples were collected were kept out side the shop premises of the accused i.e. on the road and the same were not in exclusive custody of the accused and as such, the possibility of tampering with the oil cannot be excluded. B) That the cocks of the sample bottles were not fixed tightly and there was leakage in the bottle and as such. Food Inspector had committed breach of Rule 14 of the Prevention of Food Adulteration Rules, 1955.” 3. It is this decision of acquittal which is the subject-matter of challenge in the present appeal. The respondents have been duly served; but since none appeared for the respondent Nos. 1 to 3-original accused, on the previous date, I thought it appropriate to appoint Shri A.S. Khandeparkar, Advocate, so as to get assistance in the matter. Besides, him, Mr. It is this decision of acquittal which is the subject-matter of challenge in the present appeal. The respondents have been duly served; but since none appeared for the respondent Nos. 1 to 3-original accused, on the previous date, I thought it appropriate to appoint Shri A.S. Khandeparkar, Advocate, so as to get assistance in the matter. Besides, him, Mr. Prashant Naik appeared for the appellant and Mr. Gadkari for the respondent No. 4-State. With the assistance of the Counsel appearing in the matter, I have gone through the evidence on record including the judgment of the lower Court. 4. According to Mr. Naik, conclusion reached by the lower Court with regard to contention No. 3 which is reproduced as A above, is improper. He submits that, even if, the samples were collected from barrels which were kept in open on which the accused had no exclusive control, the fact remains that the accused had issued receipts in respect of the samples being purchased by the complainant. That receipt is exhibited on record as Exhibit 54. According to him, therefore, the accused have accepted the position that the samples which were collected and purchased under the said receipt were in respect of the oil procured from the said oil barrels, which were within the control of the accused. In so far as the contention No. 4, which is reproduced as (b) as above, Mr. Naik submits that even the conclusion reached by the trial Court with regard to that plea also cannot be sustained. He submits that there is clear evidence on record that when the samples were collected and panchanama was drawn, the same has been counter signed by the accused No. 2, the samples were reportedly sealed in the manner provided under the Rules and there was no leakage at all. Besides, he submits that the samples which were sent to public analyser were found to be in proper condition. The contention that there is nothing on record to even remotely suggest that in all those samples sent to the public analyser or local authority were found in leaking condition. He submits that the fact that one of the samples which was with the Court was found in leaking condition cannot extricate the accused form the finding of guilt. Accordingly, Mr. He submits that the fact that one of the samples which was with the Court was found in leaking condition cannot extricate the accused form the finding of guilt. Accordingly, Mr. Naik has assailed the correctness of the order of acquittal in favour of the respondents-accused on the above basis. 5. Having considered the rival submissions, at the out set, I may mention that, I have no hesitation in affirming the view taken by the trial Court. The trial Court has analyzed all the relevant materials on record and found as a fact, which finding would necessarily require the Court to return finding in favour of the accused. I shall first advert to the contention which is reproduced as A above. That contention has been considered by the trial Court in para 11 of its decision which reads thus: “As regards the 3rd contention let us consider whether the oil barrels from which the samples were collected were in exclusive possession of the accused. Admittedly the shop premises of the accused. Admittedly the shop premises of the accused admeasure 10 feet x 15 feet wherein no oil was stored. It is deposed by P.W. No. 1 Jawir that no ground nut oil was found in the said shop premises and accused No. 2 did not sell any ground nut oil to anybody in his presence. According to P.W. No. 1 Jawir, there were 20 barrels which were in front of the shop of the accused. It is admitted by Jawir that by the side of the shop of the accused in the same line there are grocery shops who also deal in edible oils. The edible oil was being sold in those shops and the said shop owners had also kept their oil barrels outside their shop premises. It was specifically admitted by P.W. 1 Jawir that since 20 oil barrels were found in front of the shop of the accused, he presumed that the said barrels belong to the accused. Admittedly, there were no marks, no labels fixed on those barrels and there was no specific mark of identification. So as to show that the said oil barrels belonging to the accused alone. Moreover, the complainant did not verify the stock of the accused to prove conclusively that the said 20 barrels belonged to the accused. Admittedly, there were no marks, no labels fixed on those barrels and there was no specific mark of identification. So as to show that the said oil barrels belonging to the accused alone. Moreover, the complainant did not verify the stock of the accused to prove conclusively that the said 20 barrels belonged to the accused. Javir also does not know as to how much quantity was in the said barrels. As per the notice Exhibit 92 the accused had received the stock of 20 barrels on 16-8-1979. The present sample was collected on 22-8-1989. Thus, it is seen that the said 20 barrels were lying on the road since 16-8-1979 i.e. for 6 days. As discussed above the oil barrels of other adjoining shop owners were also kept on the road. There was no specific mark of identification to make out that the sample of oil collected from the barrels exclusively belonged to the accused. It is also in the evidence of P.W. No. 1 Javir that the cocks of the said oil barrels from which he collected the samples could be removed easily by hand. So, possibility of tampering with these barrels cannot be excluded, as the said oil barrels were not in exclusive possession of the accused. The complainant or the witness has not given any indication that the possibility of tampering with this oil during the period of 6 days has been completely excluded or that the oil was kept at a place which was not accessible to anybody except the accused. In support of the above contention, Advocate for the accused Shri. D.B. Mane placed his reliance on (Sitaram Laxminarayan Agrawal v. State of Maharashtra)1, reported in 1979 S.C.C. at page 623, wherein His Lordship held that: “Possibility of tampering with that oil since its purchase and use not excluded. The conviction on the basis of such samples was improper.” In view of the above discussion, I hold that the prosecution has failed to prove that the oil barrels from which the samples were collected exclusively belonged to the accused and that the possibility of tampering with the oil cannot be excluded. Therefore, I feel it unsafe to rely on the testimony of the complainant.” 6. To my mind, there is no infirmity either in the approach or the conclusion as reached by the trial Court on this plea. Though Mr. Therefore, I feel it unsafe to rely on the testimony of the complainant.” 6. To my mind, there is no infirmity either in the approach or the conclusion as reached by the trial Court on this plea. Though Mr. Naik contends that the accused would be bound by the receipt issued for having sold samples to the complainant, however, as rightly contended by Mr. Khandeparkar, there is no substance in that contention either. He has pointed out that the complainant during the cross-examination in para 19 of his deposition conceded the fact that the receipt Exhibit 54 was in his hand writing. If that is so, then it is obvious that the accused have not issued the subject receipt themselves, but were required to sign the document. Be that as it may, merely because the accused had issued receipt that would not absolve the prosecution from proving beyond reasonable doubt that the samples which were collected from the accused were from the goods which were lying with the exclusive possession and control of the accused. Understood thus, I see no reason to take a different view than the view already taken by the trial Court, which is reproduced above. Hence, the defence taken on behalf of the accused which is under consideration deserves to be accepted. 7. That takes me to the other plea taken on behalf of the accused that the sample bottles were not fixed tightly and there was leakage in the bottle resulting in infraction of mandatory requirement of the Rule 14. This aspect has been considered by the trial Court in paragraph Nos. 12 and 13. In para 12 of the impugned judgment, the trial Court has observed thus: "As regards the 4th contention, it may be stated that on 6-12-1979 one of seized sample bottle produced in C.C. No. 4/1980 was opened in the open Court in the presence of the complainant-accused No. 2 and his Advocate Shri D.B. Mane. It was found that there was leakage to the said bottle. My learned Predecessor has made endorsement to that effect on Exhibit 21. According to P.W. 1 Jawir he followed the same procedure for sampling oils and sealing them in respect of both the samples collected from two barrels as a samples from both these barrels found adulterated. Two separate cases i.e. C.C. No. 3/1980 and 4/1980 have been lodged against the accused. According to P.W. 1 Jawir he followed the same procedure for sampling oils and sealing them in respect of both the samples collected from two barrels as a samples from both these barrels found adulterated. Two separate cases i.e. C.C. No. 3/1980 and 4/1980 have been lodged against the accused. The learned Advocate for the accused Shri Mane vehemently argued that the leakage of the bottle clearly amounts to the breach of Rule 14 of the Prevention of Food Adulteration Rule. Rule which is mandatory one and therefore, in the absence of the Food Inspector taking proper precaution in sampling the bottle the accused cannot be held guilty." Again in the same paragraph the trial Court has observed thus: "I have already discussed above that the sample bottles in C.C. No. 3/1980 and 4/1980 were collected at one and the same time from the two different barrels and two separate cases are filed. The Food Inspector Jawir had admitted in crystal clear terms that he followed the same procedure for sampling and sealing all the bottles collected at that time. One of the sealed sample bottle in C.C. No. 4/1980 is found to be leaking. The learned Advocate for the accused Shri Mane submitted that even if one bottle is leaking, there is every possibility of leakage in respect of other bottles. In the present case the leakage might be at later stage as the common procedure was followed in respect of all the bottles. Therefore, it would be evident that the cocks put to the bottles were not tightly/fixed. Therefore, it cannot be ruled out that the samples in question might have been affected due to evaporation entrance of moisture etc." 8. To my mind, there is no infirmity in the approach or the conclusion reached by the trial Court even on this aspect. No evidence has been brought to my notice to even remotely suggest that the finding reached by the trial Court is improper or palpably wrong. On the other hand, the evidence would clearly support the finding as reached by the trial Court. In so far as the argument of Mr. Naik to assail the correctness of the conclusion is concerned, I find no substance in the said plea. No doubt, panchanama would indicate that the samples were drawn and sealed fully in conformity with the required procedure stipulated under the Rules. Assuming that Mr. In so far as the argument of Mr. Naik to assail the correctness of the conclusion is concerned, I find no substance in the said plea. No doubt, panchanama would indicate that the samples were drawn and sealed fully in conformity with the required procedure stipulated under the Rules. Assuming that Mr. Naik is right in contending that the samples sent to the public analyst as well as Local Health Authority were in proper condition but that would be of no avail since the sample found with the Court which was the third sample sealed along with other two samples was found to be in leaking condition. That evidence is not challenged before this Court. If any of the samples was found in leaking condition, that would be sufficient reason to discard the prosecution case on the ground that there has been infraction of mandatory requirement of the Rules. To put it differently, if it is noticed from the evidence that any of the sample out of the three samples required to be collected was found to be in leaking condition and has been so established in evidence, then it would be obviously fatal to the prosecution case. Understood thus, I see no reason to differ with the conclusion reached by the trial Court even with regard to this contention taken on behalf of the defence. 9. Accordingly, there is no substance in this appeal and the appeal is therefore, dismissed. 10. While parting, I would express word of appreciation for Mr. Khandeparkar who has accepted the request made by the Court to appear as amicus curiae and has extended able assistance during the course of hearing. Appeal dismissed. -----