HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.278 of 2005 JUDGMENT: Assailing the orders dated 28.11.2000 passed in Criminal Appeal No.27 of 2000 on the file of the Court of Additional Sessions Judge, Vizianagaram, whereby and whereunder the conviction and sentence as imposed by the learned J.M.F.C., Parvathipuram by order dated 15.2.2000 in STC No.2 of 1992 was set-aside finding the appellant accused not guilty for the offences charged with and acquitting him thereof, the State has preferred this Criminal Appeal. 2. The complainant-Food Inspector (PW.1) initially filed a complaint against the respondent-accused for the offences under Sections 16(1)(a) (ii), 7 (i) and (v) and 2 (ia) (a) of the Prevention of Food Adulteration Act (for short ‘the Act’) and Rule 44-A of Prevention of Food Adulteration Rules (for short ‘the Rules’) read with G.O.Ms.No.1522 M & H, dated 28.4.1964 alleging that the accused is a licenced kirana merchant of Chinamerangi village, Jiyyammavalasa Mandal of Vizianagaram District. That on 25.1.1991 at about 3.00 p.m., PW.1-Food Inspector along with PW.3-Office Attender inspected the kirana shop of the accused and found food items kept for sale for human consumption and that on suspicion of the besan (Sanaga pindi) being adulterated, demanded 600 grams of basen from the accused for the purpose of analysis. In the presence of PWs 2 and 3 the accused supplied the same but refused to accept the cost of it. Then PW.1 offered Form-VI notice to the accused. However, the accused refused to receive the notice. Then PW.1 who obtained 600 grams of basen and divided it into three equal parts of 200 grams each placed them in clean, dry and empty glass bottles and closed tightly with corks and sealed them. After complying with the procedure as laid down under the Rules, he sent one bottle to Public Analyst, Hyderabad along with Form No.VII on 28.1.1991. The other two bottles were handed over to Local Health Authority, Vizianagaram. That on 16.3.1991, the Local Health Authority received the analysis report wherein it was opined that sample contained rice flour and keasari flour, therefore, it was adulterated. 3. The accused was tried for the offence by examining PWs 1 to 3 and marking Exs.P.1 to P.34 and he was found guilty for the said offence and was accordingly convicted and sentenced to suffer rigorous imprisonment for two years and pay fine of Rs.2,000/-, in default, simple imprisonment for one month. Aggrieved by the said order of the conviction and sentence, he preferred Criminal Appeal No.27 of 2000 on the file of the Additional Sessions Judge, Vizianagaram. After assessing and appreciating the evidence on record as well as other material and after hearing both sides, the learned Additional Sessions Judge, allowed the appeal by setting aside the order of conviction and sentence as passed by the trial court considering that Section 11(4) requirement was not complied with since the seized material was not produced before the trial court within 7 days after receipt of the report of the analyst and that the prosecution also failed to comply with the provisions of Section 13(2) of the Act, whereby the right of the vendor to file a petition before the Magistrate with a prayer to send the sample to the Central Food Laboratory was frustrated on account of inordinate delay of more than one year in the sample being kept with the local health authority, in which case the sample would undergo several changes including change of its nature, characteristics and holding that the said delay was fatal to the case of the prosecution. 4. Heard both sides. 5. Learned Public Prosecutor while admitting the delay on the part of the prosecution in filing the complaint after more than one year four months, contends that the respondent-accused was not prevented from filing application before the trial court with a prayer to send the seized article to the Central Food Laboratory during the pendency of the trial of the case. However, he contends that the respondent-accused did not avail such opportunity; that he waited for a long time and that now he is raising the issue after the lapse of 20 years, therefore, the respondent- accused is estopped from raising such a plea. He further contends that after lifting the sample on 25.1.1991, it was sent to Public Analyst within time as prescribed under the Act and the Rules, and Ex.P.28 Analyst Report was against the respondent-accused, as such, the impugned judgement of the Additional Sessions Judge, Vizianagaram is liable to be set-aside. 6. On the other hand, the learned counsel for the respondent-accused submits that the delay in filing the complaint after one year 4 months is an accepted fact. Therefore, the first appellate court was right in observing that it caused prejudice to the respondent-accused and as such the same is fatal to the case of the prosecution. He further submits that prosecution also failed to comply with the provisions of Section 11(4) of the Act since the seized material was not produced before the Magistrate within the stipulated time after receipt of the report of the public analyst. Therefore, he submits that the first appellate court was not wrong in considering that the same was fatal to the case of the prosecution. 7. Having heard both sides, having considered the material on record and having considered the fact that there was considerable delay in filing the case against the respondent-accused as well as in sending the seized alleged material to the concerned Magistrate after receipt of the public analyst report, this court is of the view that the first appellate court was not wrong in holding the aforesaid delay as fatal to the prosecution case and consequently extending benefit of doubt to the respondent- accused and thereby allowing the appeal by passing impugned judgment by setting aside the conviction and sentence as imposed by the trial court against the respondent-accused. As such, the first appellate court does not appear to have committed any error or irregularity in coming to such conclusion. 8. In the result, the Criminal Appeal fails and the same is hereby dismissed. __​__​___________ B.N. RAO NALLA, J 07-12-2010 Stp HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No.278 of 2005 07-12-2010