THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.244 of 2010 DATE: 25TH JANUARY 2010 Between: The State of A.P. rep by The Public Prosecutor, High Court of A.P. And another. …Appellant / Petitioner AND Kothapally Sridhar …Respondents / Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.244 of 2010 JUDGMENT: 1. This Criminal Appeal, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973, (‘Cr.P.C.’, for brevity) is preferred by the State against the judgment dated 25.02.2008, made in C.C.No.03 of 2003, on the file of the Judicial Magistrate of First Class, Asifabad, whereunder and whereby, the respondent/accused was found not guilty of the offences under Sections 2(ia) (m) & 7 (i) and (v) of Prevention of Food Adulteration Act, 1954 (‘the Act’, for brevity) punishable under Section 16(1)(a)(i) of the Act and accordingly acquitted. 2. The brief facts that are necessary for the disposal of the prosecution case may be stated as follows. P.W.1 – the Food Inspector, Division – I, Adilabad District inspected the shop of the accused and found 30 Kgs of Red Gram Dal in an open gunny bag and on enquiry, the accused informed that it is Red Gram Dal kept for sale to public for human consumption and upon the suspicion that it was adulterated, P.W.1 purchased 750 grams of Red Gram Dal from the accused, prepared form-VI notice and served the same on accused. P.W.1 divided the purchased red gram dal into three equal parts. On 26.05.2001, one part of the sample was sent to the public analyst, State Food Laboratory for analysis and the remaining two parts of the sample were handed over to the Local (Health) Authority, Zone-V, Warangal. The Public Analyst, State Food Laboratory stated in his report that the sample contains synthetic colour Tetrazine and is therefore, adulterated. Basing on the said report of the Public Analyst, P.W.1 submitted a detailed report to the Food (Health) Administration, A.P., Hyderabad for further orders. The Director, Institute of Preventive Medicine, Public Health Laboratories and Food (Health) Authority, A.P., accorded written consent vide R.C.No.7804/F6/2001-2002 dated 17.09.2002, for institution of prosecution against the accused for violation of Sections 7(i) and (v), 2(ia)(m) of the Act read with Rule 23, 29 and 50 of Prevention of Food Adulteration Rules, 1955. Thereafter, charge-sheet was filed. 3. When a charge under Section 16 (1) (a) (i) of the Act for violation of Sections 2(ia) (m) & 7 (i) and (v) of the Act was framed, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 3 and got marked Exs.P.1 to P.20. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, D.W.1 was examined and Exs.D.1 and D.2 were marked. 6. The trial Court, after considering the evidence on record, acquitted the accused on the ground that the Food Inspector, Division – I, Adilabad District has not followed the due procedure for lifting the sample, sealing the sample and lodging complaint and the prosecution has not issued notice to the accused properly as required under Section 13(2) of the Act, by which, the prosecution took away the right of the accused in sending the second sample to the Central Food Laboratory for analysis, which caused prejudice to the accused. Challenging the same, the present Criminal Appeal is preferred by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the offences under Sections 7(i) & (v) and 2 (ia) (m) of the Act punishable under Section 16 (1) (a) (i) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 would clearly go to show that he purchased 750 grams of red gram dal from the shop of the accused and divided the same into three equal parts and made three samples; that after following due procedure, one sample packet was sent to the Public Analyst for analysis; that as per the report of the Public Analyst, the sample does not conform to the standards of Bellier’s Test (Turbidity temperature – acetic acid method) and the same was found to be adulterated, and therefore, the accused committed the offences under Sections 7(i) & (v) and 2 (ia) (m) of the Act punishable under Section 16 (1) (a) (i) of the Act; that notice has been sent to the accused, but it was returned un- served and therefore, it is deemed service. Hence, she prays to set aside the order of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though the Appellate Court has got full power to re-appreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. The factual matrix with regard to the purchasing of 750 grams of red gram dal by P.W.1 from the shop of the accused and dividing the same into three equal parts and after following due procedure prescribed under law, sending one sample to the Public Analyst for testing whether the sample is adulterated or not, are not in serious dispute. The Public Analyst, in his report dated 21.06.2001, opined that the sample contained synthetic food colour Tetrazine and therefore, it is adulterated. After obtaining the written consent from the concerned authorities, the complaint against the accused was lodged. 11. Serving notice under Section 13(2) of the Act – serving of notice on the accused is mandatory. As per the provision of that Section, complainant has to serve notice on the accused along with a copy of the Public Analyst’s report informing him that the accused has got a right to send the second sample to the Central Food Laboratory. If the second sample is sent to the Central Food Laboratory, the report that may be issued by it will supercede the report of the Public Analyst. Virtually, the report of the Public Analyst cannot be considered as evidence in law, after receipt of the report from the Central Food Laboratory. No doubt, the prosecution, as required under Section 13(2) of the Act, issued notice to the accused, but it was returned un-served. After receipt of notice, the accused has to appear before the Magistrate and make a request to the concerned Magistrate to send the second sample to the Central Food Laboratory. 12. An endorsement is made by P.W.1 that the accused was absent for seven days in his shop and as such, the notice returned un-served. But, the accused categorically stated that he was present in the shop during the relevant period when the notice was sent. It is not the case of the complainant that the accused managed the postal authorities for making such an endorsement on the cover of the Registered Post. Though a presumption under Section 27 of the General Clauses Act, 1897 would attract that when a notice is sent by registered post to the correct address it would be deemed service, but it is a rebuttable presumption. Though the endorsement made on Ex.P.20 is that the accused was continuously absent for a period of seven days in his shop, the accused rebutted the same. Therefore, in such circumstances, the burden of proof lies on the complainant to show that the accused got managed the postal authorities as regards the endorsement on Ex.P.20. Hence, it can safely be inferred that the mandatory provision under Section 13(2) of the Act has not been properly complied with by the prosecution. Furthermore, there was delay of about 19 months in serving the notice under Section 13(2) of the Act. Hence, the other samples even may not be fit for analysis. Even if the accused makes a request before concerned Magistrate to send the second sample to the Central Food Laboratory, the true value of the food in question may not be useful due to lapse of long time. 13. Therefore, the trial Court rightly acquitted the accused. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 14. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment dated 25.02.2008 made in C.C.No.03 of 2003 on the file of the Judicial Magistrate of First Class, Asifabad. ___________________ JUSTICE K.C.BHANU January 25, 2010 Bvv