JUDGMENT 1. HEARD Shri. K. C. Shah, learned APP for the appellant and Shri. E. E. Saiyed, learned counsel for the respondent. 1. The appellant State of Gujarat has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 31-1-1996, recording acquittal of the accused/ present respondent in Criminal Case No. 438 of 1987 by learned JMFC, Lunawada. The leave to appeal was granted by this court on 30-10-1996 and it was ordered to be expeditiously heard. The original complainant one Shri. Kantibhai A. Patel, Food Inspector, godhra, Panchmahals has stated in his complaint that he was duly appointed Food Inspector vide Government Gazette dated 19-5-1983. 2. ON 20-3-1987 at about 7. 00 O' Clock in the morning at Lunawada near the cross road of Jawaharbaug in the presence of panch Shri. Ranchhodbhai Saburbhai Bhoi, he intercepted the accused (Respondent) who was riding a bicycle with buffalo milk in two canes, on the doubt that he was carrying adulterated milk. He has further stated in his complaint that he informed the original accused that he is the Food Inspector and he himself purchased milk for sending it for analysis. The complainant has further stated that he purchased the milk from one of the canes from the accused after making payment of rs. 3-00 i. e. the price of the milk and in presence of panch he issued receipt thereof and the receipt was counter signed by the panch also. Thereafter, he divided the milk into 3 equal quantity and packed the same in 3 clean glass bottles whereon he applied the seal and signature etc, and also obtained signature of the panch in accordance with provisions of Prevention of Food Adulteration Act, 1954 hereinafter referred to as the 'act' ). The Local Health Authority, nadiad was also informed about sending of one sealed bottle for public analysis. As per the report of the Public Analyst the sample-milk appeared to be adulterated milk and, therefore, on 11-5-1987 all the papers were presented along with report of the Public Analyst to the local Health Authority for obtaining his sanction for institution of prosecution against the accused for offense under section 7 (1) (v), section 16 (1) (a) (i) of the Act. The concerned Local Health Authority, nadiad issued the necessary sanction/consent vide order dated 16-51987 and accordingly the complaint was lodged on 27-5-1987 which came to be registered as Criminal Case No. 438 of 1987. The charge was framed by learned Magistrate on 18-11-1992 which is at exhibit 75. The accused was charged with commission of offence under section 7 punishable under section 16 of the Act. The accused pleaded not guilty to the charges and claimed to be tried. The original complainant Shri. Kantibhai Ambalal Patel as prosecution witness gave deposition at exhibit-54. The witness has deposed that he has been duly appointed Food Inspector and he has produced notification of his appointment which is at exhibit-55. He has deposed that when he was working at Godhra as Food Inspector on 20-3-1987 at about 6. 30 to 6. 45 in the morning near Jawaharbaug cross road he along with one food Inspector Shri. Solanki, his helper Shri. Baria and Shri. Patel were present near hotel of Ranchhodbhai Saburbhai Bhoi. He has further deposed that he introduced himself to said Ranchhodbhai that he is the Food Inspector and obtained his consent for being acting as panch witness. At 7. 00 clock the accused was passing by with 2 canes of buffalo milk when he was intercepted and after giving him proper introduction and notifying him that he was intending to collect sample for analysis, he collected 750 m. l. Of buffalo milk from one cane and requisite notice in form No. 6 was issued to the respondent accused. This notice was served upon respondent accused in presence of panch witness. Said notice is produced and marked as exhibit-56. The 750 m. l. Milk was taken in a clean steel vessel on payment of Rs. 3-00 for which necessary receipt was obtained from the accused. In that receipt also the accused and panch witness have affixed their signature which is at exhibit-57. The complainant has stated in his deposition that he divided 750 m. l. Milk in 3 equal part and poured into clean glass bottles and poured 20 drops of formulene in each of the bottles and duly sealed the bottles with air tight lead and affixed necessary seals with proper signatures etc. The complainant has stated in his deposition that he divided 750 m. l. Milk in 3 equal part and poured into clean glass bottles and poured 20 drops of formulene in each of the bottles and duly sealed the bottles with air tight lead and affixed necessary seals with proper signatures etc. Thereafter the complainant has deposed that on 21-3-1987 and 22-3-1987 being public holidays one sample was sent to Public Analyst on 23-3-1987 along with memorandum in form No. 7 through his helper Shri Baria and in another seal cover the remaining samples were sent along with memorandum to the Local health Authority, Nadiad. The samples were received in a sealed bottles by the public analyst, receipt to this effect has been produced at exhibit-64 of the record. The receipt issued by the Local Health authority for receiving remaining 2 samples is exhibited at exhibit-66. The complainant further deposed that the public analyst found that the sample was not in conformity with the standards laid down and therefore the same was found to be adulterated. The report and the papers were produced before the Local Health Authority for seeking his sanction for institution of the prosecution against the accused respondent. Local Health Authority vide its letter dated 16-5-1987 issued written permission/sanction for instituting the prosecution against the complainant accused which is at exhibit-70. Thereafter the complaint was lodged before the Court on 27-5-1987 and the complainant identified his signature on the complaint. After filing of the said complaint the Local Health Authority, Nadiad sent a notice affording an opportunity to the accused for having the sample further checked by the Central Food Laboratory as per section 13 of the Act which is at mark 54/1. In his cross examination the complainant has denied the suggestion that the samples were not taken in presence of panch. He has further denied that the hotel owner Ranchhodbhai Saburbhai Bhoi who was acting as panch had not been present at the time of incident. He has denied the suggestion that the steel vessel in which the milk was collected from the cane was not cleaned. He has denied the suggestion that the bottles wherein the milk was poured for sending it to the analyst were not cleaned. He has further denied the suggestion that the preservative was dropped by him was not properly dropped. He has denied the suggestion that the steel vessel in which the milk was collected from the cane was not cleaned. He has denied the suggestion that the bottles wherein the milk was poured for sending it to the analyst were not cleaned. He has further denied the suggestion that the preservative was dropped by him was not properly dropped. He has further denied that the bottles were not properly sealed by him. It is important to note that the complainant has in his cross examination stated that he did not remember the name of the Food Inspector who had accompanied him. The complainant in his cross examination has stated that he was accompanied by 2 helpers namely Shri. D. S. Baria and Shri. B. M. Patel. He has admitted that the bottles were usually cleaned in his office and samples are collected and they are sealed. He has further admitted that cleaning of bottles is done by his helper. He has admitted that he does not know who had cleaned the bottles. He has admitted in his cross examination that the bottles were not cleaned in his presence. 3. IT is important to note that the panch witness Ranchhodbhai Bhoi has not supported the version of the complainant. The panch witness has been examined and his deposition is recorded at exhibit-87. In his deposition the panch witness Ranchhodbhai did not support the case of the complainant. 4. THE learned Magistrate has framed following issues; (1) whether the prosecution proves that the accused has committed offence by selling adulterated milk sample to the complainant; (2) whether the prosecution proves beyond doubt that the sample of milk sold by the accused is injurious to health; (3) whether the case of the prosecution has been vitiated due to breach of mandatory provision of Rule 14 of prevention of Food Adulteration Rules, 1955 and (4) What final order. The learned Magistrate has answered in affirmative the first issue, negative in the second issue and affirmative in the third issue and finally acquitted the accused by final order. 5. THE learned Magistrate has recorded his finding that the complainant has admitted unequivocally that the bottles for collecting samples were not cleaned by himself on the spot and he has further admitted that he is having no knowledge as to who had cleaned the bottles. 5. THE learned Magistrate has recorded his finding that the complainant has admitted unequivocally that the bottles for collecting samples were not cleaned by himself on the spot and he has further admitted that he is having no knowledge as to who had cleaned the bottles. The complainant has not given the name of the helper who had actually cleaned the bottles. Thus the learned Magistrate has recorded the finding that the prosecution has failed in establishing beyond doubt the compliance with the mandatory provisions of Rule14 of the Prevention of Food Adultration Rules 1955 (hereinafter referred to as the 'rules'), and therefore, the accused deserves to be acquitted of the charges. Accordingly he has acquitted the accused respondent of the offence charged against him under section 7 (1) and 16 of the Act vide his judgment in order dated 31-1-1996. 6. THE learned APP Shri. K. C. Shah has vehemently urged before this court that the learned Magistrate has erroneously recorded finding that there was no compliance with Rule 14 of the Rules, 1955. Learned magistrate has recording finding that the milk was not upto the prescribed standard and, therefore, it may not be said to be an adulterated milk and in view of this when the complainant himself has clearly deposed before the Magistrate in his examination-in-chief that he had used cleaned bottles for collecting samples it was not open to the learned Magistrate to arrive at a conclusion and say that the bottles were uncleaned. Learned Magistrate has erroneously recorded a finding that there was no compliance with Rule 14 of the Rules. Shri. Shah has invited this Court's attention to the deposition of the complainant as well as the deposition of the panch witness Shri. Ranchhodbhai and has tried to point out reference to clean bottles for collecting samples, thereby, he urged that it can not be said that prosecution has not established beyond doubt the complaisance with mandatory provisions of Rule 14 of the Rules. Shri. E. E. Saiyed, learned counsel appearing on behalf of the respondent accused has submitted that provisions of Rule 14 are mandatory in nature and therefore non compliance with this provision would amount to vitiating the trial and the logical result thereof should be acquittal, which has rightly been recorded by the learned magistrate. 7. SHRI. Shri. E. E. Saiyed, learned counsel appearing on behalf of the respondent accused has submitted that provisions of Rule 14 are mandatory in nature and therefore non compliance with this provision would amount to vitiating the trial and the logical result thereof should be acquittal, which has rightly been recorded by the learned magistrate. 7. SHRI. Saiyed has further submitted that in the instant case the testimony of Food Inspector is only a testimony which supports the case of prosecution and the deposition of panch witness Ranchoodbhai does not support the case of the prosecution. In this view of the matter the testimony of the complainant Food Inspector needs to be closely scrutinized and it deserves to be viewed with greater caution and care. The panch Ranchhodbhai has not supported the case of the prosecution at all. Shri. Saiyed has further submitted that the complainant in his cross examination has admitted that he himself had not cleaned the bottles wherein the samples were collected and he has also deposited that he does not know as to who was the helper who had cleaned the bottles. The prosecution has not examined another food Inspector who had accompanied the Food Inspector when he was taking the samples in question. Shri. Saiyed has relied upon the decision of this Court in case of State of Gujarat v. Babu Lavji Jalia reported in 1995 (2) GLH pg. 722 in support of his contention that it was the duty of the prosecution to prove by leading positive evidence that the bottles were cleaned and dried before taking samples by the food Inspector. 8. AFTER going through the entire record and perusing the deposition and the testimony of witnesses and the documentary evidence this court is inclined to accept the submissions of Shri. Saiyed that the prosecution has failed in proving beyond doubt the compliance with mandatory provisions of Rule 14 of the Rules. 8. AFTER going through the entire record and perusing the deposition and the testimony of witnesses and the documentary evidence this court is inclined to accept the submissions of Shri. Saiyed that the prosecution has failed in proving beyond doubt the compliance with mandatory provisions of Rule 14 of the Rules. This Court in case of m. B. Risaldar v. Radheshyam Ramdhar Agarwal and Anr., reported in 1980 (2) GLR 136 has observed that when the Food Inspector leading evidence claims that he had put the quantity in clean bottles and when there was no evidence to show that the bottles were cleaned in his presence and when the person who had cleaned the bottles was not examined, it was held that it was not proved by the Food Inspector that the bottles were cleaned and dried as required under the Rules. In the instant case also the Food Inspector has in his deposition admitted that the helpers were responsible for cleaning the bottles and he himself has not cleaned the bottles. The prosecution has not examined or led any positive evidence to prove that the bottles were cleaned by examining the helper who was responsible for cleaning the bottles and therefore, it is clear that the prosecution has failed in proving its case beyond reasonable doubt that there was complete compliance with rule 14 of the Rules, 1955. The ratio of M. B. Risaldar (supra) has been relied upon by this court in case of State of Gujarat v. Bhupendra M. Mehta, reported in 2000 (1) G. L. H. pg. 679. In this case the Court has even reproduced the paragraph from 21 (2) GLR which reads as under: even I feel that when a witness testifies to the effect that the glass bottles were cleaned and dried, a mere visual appearance to the naked eye may not be sufficient sometimes. If no questions might have been put to him as to how he can say that the glass bottles were cleaned and dried, probably the matter would have ended there. But he has given out that the peon had cleaned and dried the bottles and put them into the cupboard. In this state of the evidence, it was the duty of the prosecution to examine that peon to show that bottles were properly cleaned and dried and they were put into the cupboard and properly closed. 9. But he has given out that the peon had cleaned and dried the bottles and put them into the cupboard. In this state of the evidence, it was the duty of the prosecution to examine that peon to show that bottles were properly cleaned and dried and they were put into the cupboard and properly closed. 9. IT is important to note at this stage that the powers of the Court in acquittal appeal like the one on hand under section 378 of the Code are to be exercised with utmost vigilance and care. The appellate court should be slow in disturbing the findings of the trial court merely on the ground that other view was possible. It should not be over looked that the trial Court had the benefit of observing the demeanour of witness and it is a Court of first instance wherein the findings have been recorded after observing closely the deposing witnesses. When the trial court has recorded the findings that the prosecution has failed in proving beyond doubt the compliance with Rule 14 of Prevention of food Adulteration Rules, 1955, this Court is not inclined to disturb the findings and only on that ground the acquittal order deserves to be upheld. In the result, the appeal fails and hence the same is dismissed.