THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.1377 OF 2009 JUDGMENT: This appeal by the State under section 378 (1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) is directed against the judgment dated 23.01.2006 in C.C. 54 of 2002 on the file of the Judicial Magistrate of First Class, Jangaon, whereunder and whereby the respondent/sole accused was found not guilty of the offence under Section 16(1) (a) (i), 7(i) and 2 (ia) (m) of the Prevention of Food Adulteration Act (for short “the Act”) and accordingly he had been acquitted. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: P.W.1 is the Food Inspector. He along with his attender, inspected the Udipi Hotel of the accused on 03.08.2000 at 9.a.m. At that time, the accused was found transacting the business. P.W.1 found milk in the open vessel kept for sale to the public for human consumption. Suspecting that the milk was adulterated, P.W.1 purchased 400ml of milk from the accused, divided the same into three equal parts, after following the due procedure contemplated under the Act and the Rules made thereunder, and sent one sample to the Public Analyst for analysis. After analysis the Public Analyst opined that the sample is deficient in solids not fat by about 26% and is therefore adulterated. After obtaining written consent from the competent authority, P.W.1 lodged a complaint against the accused. 3. When the charge under Section 16(1) (a) (i), 7(i) and 2 (ia) (m) of the Act was framed against the accused, read over and explained to him, he denied the same and claimed to be tried. 4. To substantiate the case, the complainant examined P.Ws. 1 and 2 and got marked Exs.P1 to P24. 5. After the complainant’s evidence was closed, the accused was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing against him in the evidence of the complainant’s witnesses. The accused denied the same. No oral or documentary evidence was adduced on behalf of the accused. 6. The trial Court, after considering the evidence on record came to the conclusion that in view of delay of 1 ½ years from the date of lifting of the sample and till service of notice on the accused as contemplated under Section 13(2) of the Act, the accused is deprived of his right seeking to send the second sample to Central Food Laboratory, and accordingly, acquitted the accused. Challenging the said acquittal, the complainant filed this Criminal Appeal. 7. Now the point for determination is: “Whether the complainant proved the guilt of the accused beyond all reasonable doubt for the offence under Section 16(1) (a) (i), 7(i) and 2 (ia) (m) of the Act” 8. The learned counsel representing the learned Public Prosecutor contended that P.W.1 purchased milk from the hotel of the accused and after following due procedure contemplated under the Act and the Rules made thereunder, he divided the same into three equal parts and sent one sample to the Public Analyst, who opined that the sample was adulterated, and that the accused has not exercised his right under Section 13(2) of the Act, and therefore, the complainant proved the case against the accused beyond all reasonable doubt. 9. There cannot be any dispute that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons, ordinarily this Court would not interfere with the order of acquittal. Some of the compelling or substantial reasons are; (1) perverse finding is given (2) findings are not based upon any evidence (3) taking into consideration inadmissible evidence or (4) overlooking the admissible evidence. 10. Admittedly, the sample was lifted on 03.08.2000 and notice under Section 13(2) of the Act was given to the accused on 11.02.2002. There cannot not be any dispute that after service of notice under Section 13(2) of the Act, the accused will get a right to make a request to the Magistrate concerned to send the second sample to the Director of the Central Food Laboratory. The report of the Central Food Laboratory supersedes the report given by the Public Analyst. No doubt, the accused has not availed his right in making such a request to send the second sample to the Director of Central Food Laboratory. As the notice as contemplated under Section 13 (2) of the Act was served on him 1 ½ years after the date of lifting of the sample, no useful purpose would be served in making request by the accused to send the sample to the Director of the Central Food Laboratory after 1 ½ years because even if preservative is added to perishable articles like food, milk, it may not be fit for analysis after 1 ½ years of the lifting of the same. Therefore, the complainant deprived the valuable right of the accused in making a request to the Magistrate concerned to send the second sample to the Director of the Central Food Laboratory. Hence, the trial Court rightly acquitted the accused. The said order of acquittal does not call for any interference of this Court. 11. The Criminal Appeal is, accordingly, dismissed at the stage of admission confirming the judgment dated 23.01.2006 in C.C. 54 of 2002 on the file of the Judicial Magistrate of First Class, Jangaon ______________ K.C.BHANU, J Dated 5th November, 2009 vrn