THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.765 OF 2005 JUDGMENT: A-1 and A-2 in C.C. No.244 of 1999 on the file of the learned IV Additional Judicial Magistrate of First Class, Nellore, were found guilty of the offences under Sections 16(1)(a)(ii) and 7(i) and (v) and 2(i)(b) of the Prevention of Food Adulteration Act, 1954 (for short “the Act”) and Rule 44(e) of Prevention of Food Adulteration Rules 1955 (for short “the Rules”) and accordingly they were convicted and sentenced to undergo rigorous imprisonment for a period of six months each and also to pay a fine of Rs.1,000/- each, in default of payment of fine, to suffer simple imprisonment for 30 days each for the said offences by its judgment dated 24-03-2003. Aggrieved by the said judgment of conviction and sentence, both A-1 and A-2 preferred Criminal Appeal No.79 of 2003 on the file of the Court of Sessions, Nellore. However, the said first appellate Court by its judgment dated 06-05-2005 has dismissed the appeal confirming the judgment and conviction and sentence of both the accused passed by the trial Court in C.C. No.244 of 1999. Aggrieved by the same, both the accused have preferred this Criminal Revision Case, inter alia, on the following grounds: a) that both the Courts below failed to appreciate the evidence and other material on record in proper perspective; b) that both the Courts below should have seen that the door number and service connection of the shop did not find place in Ex.P-5 panchanama dated 04-09-1998; c) that both the Courts below ought not to have convicted the accused in view of the discrepancies in the evidence of PWs.1 and 2 and that at least benefit of doubt arising there from should have been given to them; d) that both the Courts below failed to see that the statutory provisions relating to collection of samples (Sections 7 and 16 of the Act) were violated; e) that both the Courts below should have seen that the edible oil, which does not conform to the standards, cannot be said to be injurious to health; f) that both the Courts below should have seen that the sample was not sent to the Court within the statutory period i.e. 7 days and the same is in violation of the provisions under sub-section (4) of Section 11 of the Act; g) that both the Courts below should have seen that the only independent witness, who was examined as one of the mediators to Ex.P-5 panchanama, turned hostile and did not support the case of the prosecution. 2. The case of the prosecution in brief is that on 04-09-1998 at about 2-30 PM, PW.1 – the Food Inspector, Nellore along with his attender - PW.2 visited the kirana shop of the accused at Myapdu Beach center and inspected the same by suspecting the groundnut oil found in a tin meant for sale for human consumption to be adulterated, secured the presence of PW.3 – mediator after serving Form – VI on the accused, purchased 40 grams of groundnut oil from the accused by paying Rs.18/- and obtaining receipt thereto and A-1, who was present in the shop, disclosed himself as a salesman and A-2 as proprietor of the shop. The purchased oil was divided into three equal parts, poured into three empty cleaned and dry bottles, sealed the same and after complying with the other formalities, one of the samples was sent to the public analyst and the remaining two samples were handed over to the Local Health Authority. Ex.P-10 analysis report is to the effect that the sample did not conform to the standards of Butyro–refractimeter reading, Bellier’s test, Iodine value and saponification value contains palmolein oil, and therefore, adulterated. After receiving Ex.P-10, a complaint was filed in the trial Court. 3. To prove its case, the prosecution had got examined PWs.1 to 3 and got marked Exs.P-1 to P-19 on its behalf. However, no witnesses were examined and no documents wee marked on behalf of the accused. 4. On their pleading not guilty, both A-1 and A-2 were tried for the offences under Sections 16(i)(a)(ii), 7(i) & (v) and 2(ia)(b) of the Act read with Rule 44() of the Rules and were found guilty of the said offences and were accordingly convicted and sentenced therefor as has already been stated supra. 5. The learned counsel for the revision petitioners – A-1 and A- 2 has raised the self-same grounds as raised in the grounds of revision and in addition thereto he submits that the prosecution has failed to add the wholesaler or manufacturer of the alleged adulterated oil as one of the accused and the same is fatal to the case of the prosecution. He also submits that it is statutory requirement that the prosecution should secure the presence of an independent witnesses to act as mediators for raising the samples under cover of panchanama, which has not been done in this case, as such, the same is also fatal to the case of the prosecution. He also submits that the copies of information under Exs.P-1 to P-5 were not served on A-2, who is proprietor of the shop, and A-1 is only a salesman, as such, the same also goes to the root of the case and vitiates the trial. 6. Ex.P-1 public analyst report is to the effect that the sample did not conform to the standards of Butyro–refractimeter reading, Bellier’s test, Iodine value and saponifiation value contains palmolein oil as has already been stated supra. 7. In a decision of the Hon’ble Apex Court in M. ESHWARAIAH v. STATE OF A.P., FOOD INSPECTOR, KADAPA[1], it was held to the effect that by virtue of Section 11(4) of the Act, an article of food seized under sub-section (4) of Section 10, unless destroyed under sub-section (4-A) of that Section, and any adulterant seized under sub-section (6) of that Section shall be produced before a Magistrate as soon as possible and in any case not later than seven (7) days after receipt of report of the public analyst. The said provisions are statutory and also mandatory. Hence, it is contended on behalf of the revision petitioner that the said provision was contravened in this case as the sample was not sent to the trial Court as required under sub-section (4) of Section 11 of the Act and the same is fatal to the case of the prosecution. 8. It is also contended that Exs.P-1 to P-5 were not served on A-2, who is owner and proprietor of the shop. It is further contended that out of three witnesses examined on behalf of the prosecution, PW.1 is the Investigating Officer himself and PW.2 is his attender. PW.3 is one of the mediators, as such, though PW.3, of course, turned hostile and did not support the case of the prosecution, PW.2 has stated as to the case of the prosecution, but then there are inconsistencies in the evidence of PWs.1 and 2 with regard to lifting of sample and payment made by PW.1 towards purchase of the material and as to the containers in the shop. It is a fact that PWs.1 and 2 are official witnesses and in this context it is contended that the trial Court ought to have seen that it was not safe to base conviction on the evidence of the official witnesses that too when there are discrepancies in their evidence and not corroborating with each other. 9. In a decision of the Hon’ble Apex Court in KALYAN & OTHERS v. STATE OF U.P.[2], wherein it was held to the effect that in case of variance between the FIR and the testimony of witnesses like contradictions, inconsistencies, exaggerations and embellishments and having regard to the facts, if justified, the accused may be acquitted. It is to be seen that in such case, where there are inconsistencies in the evidence of the prosecution witnesses, more particularly when they happened to be of official witnesses, the Court is required to judge their testimony with more circumspection and caution. 10. It is also contended that in view of PWs.1 and 2 being the official witnesses and in view of there being inconsistencies in their evidence and since the statutory and mandatory requirements of sub-section (4) of Section 11 were not complied with, both the Courts below appeared to have committed an error in not taking note of the same at least in not acquitting the accused and/or by extending the benefit of doubt. 11. Per contra, the learned Public Prosecutor supported the impugned judgments and order of conviction and sentence of A-1 and A-2 by both the Courts below stating that the said Courts after taking the evidence of PWs.1 and 2 and other material on record in to consideration had come to right conclusion in convicting and sentencing them and the same may not be interfered with by this Court. 12. In the aforegoing facts and circumstances of the case and for the reasons as stated hereinabove and also having regard to the decisions referred to hereinabove, it cannot be said that the prosecution had proved its case beyond all reasonable doubt, as such, this Court is of the view that the trial Court ought to have acquitted both the accused at least by extending the benefit of doubt for the offences charged with and further the first appellate Court also appears to have failed to take note of the same. Thus, this Court is of the view that the prosecution has failed to prove its case beyond all reasonable doubt against both the accused, as such, they should be acquitted for the offences charged with by extending the benefit of doubt. 13. In the result, the Criminal Revision Case is allowed setting aside the impugned judgments of both the Courts below as well as the conviction and sentence of both the accused and acquitting them for the offences charged with. Both the accused shall be set at liberty forthwith if they are not required in any other case. _________________ B.N. RAO NALLA, J Date:11-04-2011. PV [1] 1999(1) ALT 682 [2] (2001) 9 SCC 632