THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.16 OF 2005 Date:03-03-2011 Between: Talla China Sambaiah .. Petitioner State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.16 OF 2005 JUDGMENT: The accused in Criminal Appeal No.359 of 2003 on the file of the learned XI Additional District and Sessions Judge (FTC), Guntur, has preferred this Criminal Revision Case assailing the impugned judgment of the said Court dated 04-01-2005 in the said appeal, whereby the said appeal was dismissed confirming the conviction and sentence imposed on him by the learned Judicial Magistrate of First Class for Excise, Guntur in C.C. No.413 of 2003 vide judgment dated 10-09-2003 for the offences under Sections 7(i) and 2(ia)(m) read with Section16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (for short “the Act”) and Rule 50 of the Rules. 2. The facts, in brief, are that the accused was a milk vendor; that he was found to be selling buffalo milk near Annadana Satram Centre on Amaravathi Road by P.Ws.1 and 2, the Food Inspectors, who were accompanied along with P.W.3, the mediator. After complying with the procedure, they lifted a milk sample from the accused and sent the same to the Local Health Authority. The Public Analyst found that the said sample milk was adulterated. Therefore, the accused was indicted for the offences punishable under Sections 7(i) and 2(ia)(m) read with Section 16(1)(a)&(i) of the Act read with Rule 50 of the Rules. 3. On his pleading not guilty, the accused was put on trial for the charges under the aforesaid provisions of law. 4. In support of its case, the prosecution had got examined P.Ws.1 to 3 and got marked Exs.P-1 to P-17 on its behalf. Whereas, no witnesses were examined and no documents were marked on behalf of the accused. 5. The trial Court, taking into consideration of the entire material on record including the evidence of the prosecution witnesses, had found the accused guilty of the offences under Sections 7(i) and (2)(ia)(m) read with Section 16(1)(a)&(i) of the Act as well as Rule 50 of the Rules and accordingly convicted and sentenced him to suffer the minimum sentence prescribed under the Act i.e., simple imprisonment for six months and fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the said offences; that assailing the said impugned judgment of conviction and sentence, accused had preferred an appeal before the Court of the learned XI Additional District and Sessions Judge (FTC), Guntur vide Criminal Appeal No.359 of 2003; that after hearing both sides and after taking into consideration of the entire material on record, the first appellate Court had dismissed the appeal as has already been stated in paragraph No.1 supra. Hence, this revision. 6. It is the case of the accused that the trial Court has committed an error in appreciating and accepting the evidence of P.Ws.1 and 2, who are the Food Inspectors, though they are interested witnesses; that the trial Court has also erred in placing reliance on Ex.P-5 under which PW.1 has said to have taken sample of 750 ml. of milk from the accused though PW.3, who was examined as a mediator to Ex.P-5 panchanama, has stated in his evidence that due to lapse of time, he could not remember the milkman from whom the sample milk was taken. 7. It is further his case that though the sample milk was drawn on 09-02-2000, the prosecution took more than two years and nine months in sending the said sample to the Central Food Laboratory, Hyderabad, and that the notice was given to the accused only on 23- 11-2002. It is only after sending notice to the accused, the prosecution is required to send the sample to the Public Analyst. 8. The sequence of events are as follows: That on 09-02-2000, the sample of milk taken from the accused was sent to the public analyst for his report and the same was received by the public analyst on 03-03-2000; that on 17-01-2002, sanction order was obtained by the prosecution to prosecute the accused; that on 24-09-2002, a complaint was formally lodged before the learned Judicial Magistrate of First Class, Excise, Guntur, and the said Court took cognizance of the complaint on 18-11-2002. However, a notice as required under sub-section (2) of Section 13 of the Act was given to the accused on 23-11-2002. Thus, there is a gap of two years nine months in sending the sample to the public analyst from the date of lifting it from the accused. Further, it is the case of the accused that the prescribed procedure was not followed in drawing the sample. The milk-can was made upside down and the sample was drawn without stirring the milk with the rod. Hence, there is a possibility of the milk having more fat contents. It is further his case that though three samples were drawn to send the same to the Local Health Authority as well as the Judicial Magistrate within seven days and the same is mandatory under sub-section (4) of Section 11 of the Act, they did not send the same within the stipulated time, as such, the said provision and law was violated by the Food Inspector in sending the same as required by law and the same is fatal to the case of the prosecution; that there is no material on record to show that the sample was sent to the local Magistrate within the stipulated time. 9. The accused relied on the following decisions: 1. M. ESWARAIAH v. STATE OF A.P., FOOD INSPECTOR, CUDDAPAH[1] 2. FOOD INSPECTOR, ADILABAD v. DESH RAJ AND ANOTHER[2] 3. 1990 Criminal Law Journal (All.) 35 10. In M. ESWARAIAH’s Case (Supra 1), it was held to the effect that the seized food item shall be produced before a Magistrate as soon as possible and in any case not later than seven days after receipt of the report of the public analyst. The provisions are statutory and also mandatory. The Investigating Officer is required to strictly comply with the requirements of law. Any failure on the part of the Food Inspector in sending the sample to the Magistrate within the stipulated time is fatal to the case of the prosecution. It is to be observed that since there is no material on record to show that P.W.1 has complied with the said provision of law, it has to be construed that there is violation of the said statutory provision. 11. In FOOD INSPECTOR, ADILABAD’s Case (Supra 2), it was held at paragraph No.10 to the effect that if there is no material to show that the Food Inspector before taking sample stirred the milk in clock wise and anti-clock wise so as to make the article of food homogeneous, there was a possibility of fats and solid remaining at the bottom of article of food, and therefore, on this ground, the accused is entitled for acquittal. 12. In 1990 Criminal Law Journal (All.) 35 (Supra 3), it was held to the effect that prosecution must be launched without any delay as the sample would deteriorate and thereby the valuable right of the accused to get the sample analyzed by the Central Food Laboratory would be adversely affected. 13. It is the case of the prosecution that the accused failed to take any steps in challenging the public analyst report though there is a delay in sending the sample to the Central Food Laboratory. However, it is to be observed in this context that there is a time limit of 300 days for decomposition of the seized item and thereafter it would decompose by itself. It is obvious that the seized item is bound to decompose by itself since there is a gap of more than two years. Therefore, the accused cannot be permitted to raise the said plea at this stage, about which he ought to have taken steps at the relevant time. 14. In the above facts and circumstances, it cannot be said that the trial Court has committed an error or irregularity in passing the impugned judgment of conviction and sentence and as such confirmation of the same the first appellate Court as has been stated supra is not liable to be interfered with. 15. In the result, the Criminal Revision Case is dismissed and the impugned judgment of conviction and sentence imposed on the accused is confirmed. _________________ B.N. RAO NALLA, J Date:03-03-2011. MRB/PV [1] 1999 (1) ALD (Crl.) 42 (A.P) [2] 2003 (2) ALD (Crl.) 631 (A.P)