IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTIETH OF OCTOBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1293 OF 2009 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Penumasta Parvathi Devi ..... Respondent/Accused The Court made the following: JUDGMENT: This Criminal Appeal, under Sections 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), is directed by the State against the order of acquittal of the respondent/accused of the offences punishable under Sections 16 (1) (a) (i) read with 2 (ia) (f) and 7 (i) & (v) of the Andhra Pradesh Prevention of Food Adulteration Act, 1954, (for short 'the Act'), vide judgment, dated 12.09.2007, in C.C.No.1100 of 2006, passed by the learned Judicial Magistrate of I Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad, L.B. Nagar. 2. Brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: P.W.1-Food Inspector, Division-I, Ranga Reddy District, visited the shop of the accused, M/s.Laxmi Bhawani Foods & General, situated at Uppal Bus Depot, Ranga Reddy District, along with his attender, on 01.10.2002 at about 4.00 p.m., and at that time, the accused was transacting the business and she disclosed that she was the Proprietrix of the said shop. P.W.1, in the presence of the mediator, inspected the shop premises and found 5 kgs. of Rawa in an open polythene bag apart from other food articles. On enquiry, the accused stated that Rawa was meant for sale for human consumption and also stated that she purchased the same from wholesale shop of M/s.Srinivasa Traders, situated at Uppal Market, but she did not produce any purchase bill. P.W.1, on suspicion that it was adulterated, purchased 600 grams of Rawa and divided the same into three equal parts and made three samples. After following due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, opined that the sample contained plenty of meal worms and was unfit for human consumption and therefore, it was adulterated. Thereafter, P.W.1 submitted a detailed report to the Director, Institute of Preventive Medicine and State Food (Health) Authority for consent. The Director of the Institute of Preventive Medicine and State Food (Health) Authority has given a written consent to launch the prosecution against the accused. Thereafter, the complaint was filed. 3. When the accused was examined under Section 251 of Cr.P.C. for the offences punishable under Sections 16 (1) (a) (i) read with 2 (ia) (f) and 7 (i) & (v) of the Act, she denied the offences, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.W.1 and marked Exs.P1 to P19. 5. After closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating material found against her in the evidence of prosecution witnesses. She denied the same and reported no evidence. 6. The trial Court, after considering the evidence on record, came to the conclusion that Rule 18 of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules'), has been violated and Section 13 (2) of the Act has not been complied with and accordingly acquitted the accused. Hence, this Criminal Appeal is filed 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 punishable under Sections 16 (1) (a) (i) read with 2 (ia) (f) and 7 (i) & (v) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 would clearly go to show that he purchased 600 grams of Rawa from the shop of the accused; that one sample was sent to the Public Analyst; that the Public Analyst, after analysis, opined that the sample contained plenty of meal worms and was unfit for human consumption and the same was found to be adulterated; that the prosecution proved its case beyond all reasonable doubt, and therefore, the accused committed offences punishable under Sections 16 (1) (a) (i) read with 2 (ia) (f) and 7 (i) & (v) of the Act, and 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, the Appellate Court has got full power to reappreciate the evidence available on record, but it will 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 the 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. It must be shown that the sample of food taken by P.W.1 from the shop of the accused must be self-same sample analysed by the Public Analyst. This fact has to be proved beyond all reasonable doubt. 10. Rule 18 of the Rules contemplates thus: “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.” 11. As seen from the above rule, it is clear that the specimen impressions of the seal affixed on the samples have to be sent separately. There is no evidence to show that the sample that was taken from the shop of the accused is the self-same sample that was sent to the Public Analyst and the same sample was analysed by the Public Analyst. It is not known how the samples have been sent to the Public Analyst. Similarly, it is not known how the Memorandum Form No.VII was sent to the Public Analyst. Similarly, the prosecution has not complied with Section 13 (2) of the Act, which reads thus: “On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” 12. The above provision is mandatory one. Thereby, the accused can avail her right to make a request to the concerned Magistrate to send the second sample to the Director, Central Food Laboratory as contemplated under Section 13 (2) of the Act. Upon receipt of the report from the Central Food Laboratory, that report supercedes the report of the Public Analyst. There is no evidence to show that P.W.1 sent the notice under Section 13 (2) of the Act and it has been served on the accused. No doubt, P.W.1 sent the notice under Section 13 (2) of the Act by Registered Post, but its endorsement was not found. Therefore, the accused has not availed the right contemplated under Section 13 (2) of the Act. In such circumstances, no useful purpose would be served even if the sample is to be analysed by the Director, Central Food Laboratory. Therefore, the valuable right conferred on the accused has been lost. 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. 13. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 12.09.2007, in C.C.No.1100 of 2006, on the file of the learned Judicial Magistrate of I Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad, L.B. Nagar. _______________ (K.C. BHANU, J) Date: 30th October, 2009 KL