JUDGMENT : Hon'ble Mrs. Vijay Lakshmi,J. Counter affidavit filed today by learned A.G.A. is taken on record. 2. Heard learned A.G.A. Perused the record. 3. This appeal against acquittal has been filed by Nagar Swasthya Adhikari, Nagar Maha Palika, Agra and is pending since the year 1979. 4. Except learned A.G.A. no one is present on behalf of either side. 5. The record shows that on 11.01.2018, this Court had passed the following order :- "The present criminal appeal has been preferred by the Nagar Swasthya Adhikari, Nagar Palika, Agra against the judgment and order dated 26.5.1978 passed by then Additional Chief Judicial Magistrate, Agra, in Criminal Case No.3095 of 1977, acquitting the respondents from an offence under Section 7/16 of the Prevention of Food Adulteration Act. Sri N.C. Upadhyay, learned counsel for the appellant is stated to be no more. From the perusal of the record it appears that leave to appeal has been granted and the appeal has been admitted but there appears to be no impugned judgment of the trial court annexed with the said memo of the appeal. It is more disturbing to note that the said appeal has been reported but the said fact has not been taken into note by the person who was reporting the criminal appeal. As the appeal is against the acquittal, and the impugned judgment has not been annexed with the said appeal, hence it is not possible to decide the said appeal on merit without lower court record. As per office report dated 1.12.2007 it has been reported that though requisition to summon the lower court record was issued but the same has not been received back and further office report dated 14.9.2008 shows that the lower court record is still awaited. O.S.D. (Criminal) shall enquire from the District Judge whether the record of the said appeal is still available in the district court concerned or not and if the same is available, the same may be summoned within two weeks immediately. List after two weeks." 6. In compliance of the aforesaid order, the Officer on Special Duty (J.)(Crl.) submitted the report dated 5.2.2018 which is as follows :- "In compliance of above order, letter no. 2045 dated 19.01.2018 was issued to the District Judge Agra. Thereafter District Judge, Agra vide letter no. List after two weeks." 6. In compliance of the aforesaid order, the Officer on Special Duty (J.)(Crl.) submitted the report dated 5.2.2018 which is as follows :- "In compliance of above order, letter no. 2045 dated 19.01.2018 was issued to the District Judge Agra. Thereafter District Judge, Agra vide letter no. 414/XV dated 01.02.2018 sent though e-Mail forwarded the report of Sri Anmol Pal, Officer Incharge, Record Room (Criminal)/Additional District Judge, Court No. 09, Agra in which it has been stated that the Officer Incharge, Record Room (Judicial), Collectorate Agra has informed that the files pertaining to Food Adulteration Act upto the year of 1981 were consigned in the Record Room, Collectorate, Agra. It has been further stated that the City Magistrate-II/Officer Incharge, Record Room (Judicial) through his letter dated 31.01.2018 has informed that the concerned file has been weeded out on 26.07.1983. The copy of letter dated 31.01.2018 of City Magistrate-II/Officer Incharge, Record Room (Judicial), Agra has also been enclosed with the said letter dated 01.02.2018 forwarded by the District Judge, Agra and the letter dated 31.01.2018 of City Magistrate-II/Officer Incharge, Record Room (Judicial) has also been received through Fax." 7. From a perusal of the aforesaid report of O.S.D. (J.)(Crl.) it is clearly evident that the original record has been weeded out as far back as on 26.7.1983 and a period of about 35 years has elapsed since the weeding out of the original record. Even the copy of the impugned judgment is not available due to the reason that at the time of filing of this appeal the Stamp Reporter did not report that the copy of the impugned judgment has not been filed by the appellant. As a considerable period of 35 years has expired, it cannot be said whether after such a long period the witnesses are still available or not. Even if the witnesses are available, the copies of their statements recorded by the I.O. under Section 161 Cr.P.C. will certainly be not available. Under these circumstances, no fruitful purpose would be served by ordering retrial as the same cannot be conducted at all in the absence of these documents. 8. Learned A.G.A. has also conceded that without papers relating to the trial and without even the copy of the judgment, neither the retrial nor reconstruction is possible. Under these circumstances, no fruitful purpose would be served by ordering retrial as the same cannot be conducted at all in the absence of these documents. 8. Learned A.G.A. has also conceded that without papers relating to the trial and without even the copy of the judgment, neither the retrial nor reconstruction is possible. Due to non availability of any document and even the impugned judgment being not available, the appeal cannot be decided on merits. 9. The report of the O.S.D. (J.)(Crl.) also shows that the files pertaining to Food Adulteration Act upto the year of 1981 were used to be consigned in the record room of Collectorate. The Rules of weeding out of a file in the record room of Collectorate in the year 1983 must be different from that of the rules of civil court, therefore, it cannot be said that whether the file was legally weeded out or against the Rules. 10. The Hon'ble Apex Court in the case of State of U.P. Versus Abhai Raj Singh & another reported in 2004 SCC(Cri) 901 has laid down the guidelines in cases where the record has been weeded out or has been destroyed or lost and its reconstruction is not possible. According to the Hon'ble Supreme Court :- ".........If only reconstruction is not possible to facilitate the High Court to hear and dispose of the appeals and the further course of retrial and fresh adjudication by the Sessions Court is also rendered impossible due to loss of vitally important basic records - in that case and situation only, the direction given in the impugned judgment shall operate and the matter shall stand closed. The appeals are accordingly disposed of." 11. Though the aforesaid case of Abhai Raj Singh was related to appeal against conviction and the present appeal has been filed by the Nagar Swasthya Adhikari against acquittal of accused persons, but the same principle will apply in the appeals filed against acquittal also, if the reconstruction of record is not possible as in the present case. 12. In a similar case where lower court record was not available and reconstruction of record could not be done, a division Bench of this Court in the case of Sita Ram and others Vs. 12. In a similar case where lower court record was not available and reconstruction of record could not be done, a division Bench of this Court in the case of Sita Ram and others Vs. State 1981 Cr.L.J 65, made observation in Para 11 which is quoted herebelow: "On a careful consideration of the relevant statutory provisions and the principle laid down in the cases cited before us we are of the opinion that where it is not possible to reconstruct the record which has been lost or destroyed it is not legally permissible for the appellate court to affirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal. The appellant has a right to try to satisfy the appellate court that the material on record did not justify his conviction and that right cannot be denied to him. We are further of the opinion that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct retrial of the case since witnesses normally would be available and it would not cause undue strain on the memory of witnesses. Copies of F.I.R., statements of witnesses under Section 161 Cr. P.C. reports of medical examination etc. would also be normally available if the time gap between the incident and the order of retrial is not unduely long. Where, however, the matter comes up for consideration after a long gap of years, it would neither be just nor proper to direct retrial of the case, more so when even copies of F.I.R. and statements of witnesses under Section 161 Cr. P.C. and other relevant papers have been weeded out or are otherwise not available. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. In such a situation even if witnesses are available, apart from the fact that heavy strain would be put on the memory of witnesses, it would not be possible to test their statements made at the trial with reference to the earlier version of the incident and the statements of witnesses recorded during investigation. Not only that the accused will be prejudiced but even the prosecution would be greatly handicapped in establishing its case and the trial would be reduced to a mere formality entailing agony and hardship to the accused and waste of time, money and energy of the State." 13. In the above referred case of Sita Ram (supra) the division Bench acquitted the accused in view of the fact that the lower court record could not be reconstructed. This aspect of Sita Ram case (supra) was again considered by another division Bench of this Court in the case of Ram Nath Vs. State, 1982 (19) ACC 128 (decided on 3.11.1981) wherein also following observations were made :- "After making the aforementioned observations and in view of the fact that the court was not in a position to have the record of the case re-constructed, the Bench directed acquittal of the accused in that case. The principle laid down in Sita Ram's case fully applies to the facts of the present case. As all attempts to have the record re-constructed have failed, this Court is not in a position to affirm the conviction recorded by the trial court. So far as the question of ordering a re-trial is concerned, we find that in the instant case the incident in connection with which the accused were prosecuted, took place as far back as 13th of September, 1970, that is, more than eleven years earlier. In such circumstances it will not be desirable to direct a re-trial. In this view of the matter we have no option but to allow Criminal Appeal No.857 of 1976 and to set aside the conviction and sentence of Ram Nath and to acquit him of the offence with which he has been charged." 14. In similar circumstances another division Bench of this Court in the case of Brahmanand Shukla Vs. In this view of the matter we have no option but to allow Criminal Appeal No.857 of 1976 and to set aside the conviction and sentence of Ram Nath and to acquit him of the offence with which he has been charged." 14. In similar circumstances another division Bench of this Court in the case of Brahmanand Shukla Vs. State of U.P., 2010 (69) ACC 749 made following observation in Para 10:- "In the present case, as we have mentioned in the earlier part of the judgment only a copy of the Trial Court's judgment is available and no other documents like FIR, post-mortem report, copies of the documents which had been filed by the prosecution and were exhibited during trial, the statement of the witnesses recorded under section 161, Cr.P.C. are available despite various attempts to reconstruct the record. The incident is of the year 1979 i.e., the incident took place about 30 years back. In these circumstances, no fruitful purpose would be served by ordering retrial as the same cannot be conducted at all in absence of these documents. In the light of the above discussions and circumstances mentioned above, we have no other alternative but to allow the appeal, set aside the conviction and sentence of the appellant and to acquit him." 15. In all these cases cited above, copy of the impugned judgment was available but in the present case even the copy of the impugned judgment is not available. 16. Under these circumstances, this court has no option except to close the matter. Therefore, the matter stands closed and the appeal is accordingly disposed of.