( 1 ) THIS appeal has been filed by the State against the judgment dated 20-9-1986 passed by the Chief Judicial Magistrate, Bolangir on 2 (c) C. C. No. 17 of 1985 (T. R. No. 220 of 1985) acquitting the opposite party of the offence punishable under section 16 (1) (a) (i) of the Prevention of,food adulteration Act (for short "the Act" ). ( 2 ) THE brief facts of the case are that the opposite party had food licence for manufacturing biscuits only. On 28-11-1984 purna Chandra Mishra, the Food Inspector, mobile Unit, State Public Health Laboratory, orissa and Anirudha Naik, the Food Inspector of the Bolangir district (P. W. 1) inspected the factory of the opposite party. According to the prosecution, P. W. 1 suspected the goli-Peppermint manufactured and stored by the opposite party in his factory for sale for human consumption, to be adulterated. He expressed his intention to the opposite party to get the sample of Goli-Peppermint analysed and served notice upon him. Thereafter he purchased 900 gms, of goli-Peppermint on payment of Rs. 7. 50 paise and obtained money receipt as per Ext. 2, divided the sample into three equal parts and after filling the said parts in three polythene bags, sealed the same separately and took the signature of the opposite party thereon. One sample was sent to the Public Analyst, bhubaneswar by registered parcel with a copy of memorandum. Another copy of memorandum with his specimen impression and seal was sent to the Public Analyst, bhubaneswar by registered parcel separately on the same day. The other two samples were retained with the Local Health authority, Bolangir. On 22-1-1985 report from the Public Analyst was received by him, according to which the sample was adulterated. Thereafter he filed a prosecution report for prosecuting the opposite party u/s. 16 (1) (a) (i) of the Act and a sanction was obtained accordingly. At the instance of the opposite party, the sample was sent to the director, Central Laboratory for analysis who also found that the sample WAS adulterated. Thereafter lie filed his complaint before the magistrate. ( 3 ) THE opposite party did not plead guilty. His case in defence was that 10 Kgs. of Goli peppermint at the rate of Rs. 50/- per Kg. Thereafter lie filed his complaint before the magistrate. ( 3 ) THE opposite party did not plead guilty. His case in defence was that 10 Kgs. of Goli peppermint at the rate of Rs. 50/- per Kg. was kept inside the store room but the same was not exposed for sale for human consumption and was kept in a carton. It was purchased from Raja Industry, Raipur and a cash memo was issued in Sindhi language which was signed by proprietor of the Raja industries, namely Govind Ram in the presence of the opposite party. ( 4 ) THE prosecution produced four witnesses in support of its case. Opposite party also appeared in the witness box as D. W. 1 and one Shankar Prasad Misra was also produced as D. W. 2 who was allegedly working as salesman in the Raja Industry, Raipur. P. W. 1 Anirudha Naik is the Food Inspector who had launched the prosecution report. He reiterated the statements made in the p. R. and P. W. 2-Chaitanya Khatua is the sanitary Inspector who had accompanied p. W. 1 to the Biscuit Factory on 28-11-1984 at about 3. 30 p. m. He has corroborated the version of P. W. 1. However, in cross-examination, he has stated that for the first time he saw the Goli Peppermint in the factory in packets. He had not seen the polythene bags being taken by P. W. 1, but saw them at the factory of the accused-opp. party. He stated to have purchased biscuits from the opposite party, but he never purchased Goli Peppermint from the opposite party. He had also no knowledge if the polythene bags taken by P. W. 1 were sterilised or cleaned. P. W. 3- Antabal Majhi is the Peon who had allegedly accompanied P. W. 1 to the factory of the opposite party. P. W. 4- Krushna Chandra babu was a driver of OSRTC. He did not support the prosecution story. His statement is reproduced as under : "memorandum of substance of the evidence of P. W. 4 he stated that he knew the accused lalchand Agrawala. On 28-11-84 he went to the shop of the accused at about 4 p. m. and at that time the P. W. 1 brought out some peppermints from his shop. His statement is reproduced as under : "memorandum of substance of the evidence of P. W. 4 he stated that he knew the accused lalchand Agrawala. On 28-11-84 he went to the shop of the accused at about 4 p. m. and at that time the P. W. 1 brought out some peppermints from his shop. The P. W. 1 told him that he was taking sample from out of the packet brought out by him from the inner room of the accused. Accused told P. W. 1 that the same was not meant for sale and he got them under a cash memo. He showed the cash memo to the P. W. 1. The accused did not tell for what purpose he kept the peppermints. The P. W. 1 took his signatures on some paper telling that he would be a witness, he signed on the notice. Ext. 1 /2 is his signature. 2. Cross-examination he stated that he periodically go to the shop of the accused for purchase of biscuits etc. The sample packet was not exposed for sale in his shop but was brought out from the inner room. The things that exposed for sale were not kept in his store room (inner room ). The lozenges (peppermints) were kept in 'jori' bags supplied by the accused. Those bags were not cleaned in his presence. He did not see the weighing of the logenzes. Dictated and correctedsd/- C. J. M. 21-8-86 sd. /-C. J. M. 21-8-86 krishna Chandra Bal read over and explained to the witness in Oriya and admitted to be correct. Sd/-C. J. M. , Bolangir 21-8-1986. " ( 5 ) THE opposite party as D. W. 1 proved the cash memo regarding purchase of 10 kgs. of Goli Peppermint from Raja Industry signed by its proprietor, Goving Ram in his presence. D. W. 2-Shankar Prasad Misra, salesman of Raja Industry, has stated that in the year 1984 he was working as salesman in Raja Industry and Govind Ram was the proprietor of that Industry. He stated that he had sold Goli Peppermint in July, 1984 to the opp. party from Raja Industry. Learned Magistrate acquitted the opposite party observing that the prosecution was required to prove it case beyond reasonable doubt which it had failed to do. P. W. 4, though supported the accused, was not declared hostile by the prosecution. He stated that he had sold Goli Peppermint in July, 1984 to the opp. party from Raja Industry. Learned Magistrate acquitted the opposite party observing that the prosecution was required to prove it case beyond reasonable doubt which it had failed to do. P. W. 4, though supported the accused, was not declared hostile by the prosecution. P. W. 1 or any other prosecution witness had not seen whether the opposite party was manufacturing the logenzes or not. As such the prosecution failed to prove beyond reasonable doubt that the accused was manufacturing the logenzes for human consumption. Besides this, the accused has proved that he had purchased the Goli Peppermint from raja Industry. The Director, Central Food laboratory submitted his report, according to which, coaltar colours : tartrazine yellow and two non-permitted colours; Rhodamine b and Orange II were present in the sample, meaning thereby that one colour, i. e. tartrazine yellow was permitted colour and the rest two colours were non-permitted. But he had not mentioned the colour index and the colour or chemical class of the non-permitted colours. But the learned Magistrate has held that the opposite party was not a manufacturer and he purchased the same from Raja Industry, Raipur and proved the purchase and also kept the same in a sealed polythene inside the store room and it was not exposed for sale. ( 6 ) I am in full agreement with the findings given by the learned Magistrate. Besides that one more circumstance is present in the instant case that when the sample was taken by the Food Inspector in three different bags, it ought to have been proved by the prosecution that the polythene bags were new and sterilized. If the sample was taken in a used polythene bag there was possibility of the same being contaminated and adulterated as found on analysis. None of the prosecution witnesses have stated that the polythene bags in which the sample was kept were sterilized or the same were new. Rather, p. W. 4 in his cross-examination has stated that those bags were not cleaned in his presence. Therefore, the benefit of doubt has to go in favour of the accused. ( 7 ) IN view of the above mentioned facts and circumstances, the opposite party was liable to be acquitted and has been rightly acquitted of the charges by the learned Magistrate. Therefore, the benefit of doubt has to go in favour of the accused. ( 7 ) IN view of the above mentioned facts and circumstances, the opposite party was liable to be acquitted and has been rightly acquitted of the charges by the learned Magistrate. ( 8 ) IN the result the appeal fails and, is therefore, dismissed. No order as to costs. Appeal dismissed.