THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1302 of 2009 JUDGMENT: 1. The State of Andhra Pradesh, represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, challenging the judgment, dated 25.10.2007 passed in C.C.No.1041 of 2006 on the file of Judicial First Class Magistrate, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad, L.B.Nagar, whereunder and whereby, the respondent/sole accused was found not guilty of the offence punishable under Section 16(1)(a) (i) read with 2(ia)(j) and 7(i) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’). 2. The brief facts that are necessary for disposal of this case, may be stated as follows: P.W.1, who was the Food Inspector, along with his Attender, inspected the shop of the accused, who was transacting the business. He found 25 packets (transparent polythene covers) of redgram dall each weighing ½ Kg. Suspecting that it was adulterated, he purchased 1500 grams and divided the same into three equal parts. One sample was sent to the Public Analyst for analysis. The Public Analyst after analysis, opined that the sample contained synthetic colour Tartrazine and therefore, it was adulterated. After obtaining permission from the competent authority, the complaint was lodged. 3. The accused was examined under Section 251 Cr.P.C. for the offences under Section 16(1)(a)(i) read with Sections 2(ia)(j) and 7(i) of the Act. He denied the same and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 and 2 and got marked Exs.P.1 to P.19. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial Court after considering the evidence on record, came to the conclusion that the Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955 have been violated and that there was abnormal delay in serving the notice under Section 13(2) of the Act and, therefore, the accused was acquitted. Challenging the same, the present appeal is filed. 6. Now the point for consideration is whether the appellant proved the guilt of the accused for the charges levelled against him. 7. Learned counsel appearing for the Public Prosecutor contends that the evidence of P.W.1 is very clear that P.W.1 purchased 1500 grams of redgram dall and the sample sent to the public analyst found to be adulterated and the public analyst report goes to show that the sample was adulterated, and that the accused has not exercised his right under Section 13(2) of the Act, and therefore, she prays to set aside the order of acquittal. 8. There cannot be any dispute that there is a presumption under the law that the accused presumed to be innocent, unless contrary is proved by the prosecution beyond reasonable doubt. The presumption of innocence is further strengthened by the order of acquittal. Normally, this Court would not interfere with the order of acquittal. However, this Court has got full power to re-appreciate the evidence to know whether the findings are passed on proper appreciation of evidence on record or any perverse finding was recorded or inadmissible evidence was taken into consideration or admissible evidence has been overlooked. In short, there must be substantial or compelling reasons to interfere with the order of acquittal. 9. The Public Analyst report, Ex.P.14, would clearly go to show that the article of food analysed by the Public Analyst contained Tartrazine and therefore, it was adulterated. The article of food, which was lifted from the shop of P.W.1, must shown to have been the self-same sample, which has been analysed by the public analyst. Therefore, certain precautions have to be taken while sending the sample to the analyst. They are explained in Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955 (for short ‘the Rules’). 10. Rule 17 of the Rules reads as follows: 17. Manner of despatching containers of samples.- The containers of the sample shall be dispatched in the following manner, namely:- (a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means: (b) The sealed containers of the remaining two parts of the sample and two copies of the memorandum in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means: (c) The sealed container of one of the remaining two parts of the sample and a copy of the memorandum in Form VII kept with the Local (Health) Authority shall within a period of 7 days be sent to the public analyst on requisition made by him to it by any suitable means: Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the following additional information, namely:- (a) Grade; (b) Agmark label No. / Batch No; (c) Name of packing station. 11. Rule 18 of the Rules reads as follows: 18. Memorandum and impression of seal to be sent separately.- A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day. 12. Ex.P.9 is not specific as to what manner, the specimen impressions of the seal is used on the packet of sample. Similarly in what manner, the sample was sent to the Public Analyst, whereas Exs.P.10 and P.11 would go to show that the contents of Form VII were sent to Public Analyst in person. That person was not examined to show that he handed over the sample of food that was given to him at the shop of P.W.1 to the public analyst. If Exs.P.10 and P.11 were sent through post, a postal receipt should have been filed into the Court. Therefore, there is a clear violation of Rules 17 and 18 of the Rules. The object and purpose of Rules 17 and 18 are that the article of sample taken from the shop of the accused person has to be handed over to the analyst and that analyst has to analyse the same. That aspect of the case has not been proved. 13. Further, the article of food was lifted on 10.12.2003 and notice under Section 13(2) of the Act was issued to the accused on 31.07.2004. There was a delay of seven months in issuing a notice under Section 13(2) of the Act. Valuable right is conferred upon the accused to make an application to the concerned Magistrate to send the second sample to the Director of Central Food Laboratory. There cannot be any dispute that the report given by the Central Food Laboratory supersedes the report of the Public Analyst. No doubt, the accused has not availed the right conferred under Section 13(2) of the Act, but at the same time, there should not be any delay in lodging the complaint and serving the notice under Section 13(2) of the Act. Because of the delay, even if the accused requests the Court to send the second sample to the Central Food Laboratory, no useful purpose would be served as the article of food would not be in the same condition as it was lifted from the shop of the accused after seven months. Therefore, the trial Court after elaborate consideration of the evidence on record, rightly acquitted the accused and the impugned order needs no interference by this Court, as there are no compelling or substantial reasons to interfere with it. 14. The Criminal Appeal is accordingly, dismissed at the stage of admission confirming the judgment, dated 25.10.2007 in C.C.No.1041 of 2006 on the file of the Judicial First Class Magistrate, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad, L.B.Nagar. _______________ K.C.BHANU, J 27th OCTOBER, 2009. kvni