THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1171 of 2004 Date: 10.02.2011 Between: K. Phani and another … Petitioners/ Accused AND The State of A.P., Through the Food Inspector, D-II, Mahabubnagar District, rep.by the Public Prosecutor, High Court of A.P., Hyderabad … Respondent/ Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1171 of 2004 ORDER: There are two petitioners. Both the petitioners are the accused in STC No.72 of 2000 on the file of the Judicial Magistrate of First Class, Allampur. They allegedly committed the offence under Section 2 (i-a) & (m) read with Section 7 (i) & (v) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’) and Rules 23 and 29 of the Prevention of Food Adulteration Rules, 1955 (for short ‘the Rules’) read with Section 16 (1)(a) (i) of the Act. The first accused is the son of the second accused. The second accused is the licence holder of the shop. 2. PW.1, who was the Food Inspector of Mahabubnagar inspected the shop of the second accused on 28.11.1998. A.1, son of A.2 was found to be transacting business. PW.1 purchased 750 grams of red gram on suspicion that the same was adulterated. After following the procedure (according to the prosecution), considering that the food stuff was adulterated, the prosecution was launched against the accused. The accused faced trial before the trial Court. The prosecution examined two witnesses in the food inspector as PW.1 and an independent mediator as PW.2. As many as 27 documents were exhibited by the prosecution. Believing the case of the prosecution, the learned trial Judge recorded a conviction. He sentenced both the accused to rigorous imprisonment for a period of six months each and fine of Rs.1,000/- each with appropriate default sentence. Aggrieved by the same, both the accused preferred Crl. Appeal No.127 of 2002 before the learned III Additional Sessions Judge, Mahaboobnagar District at Gadwal. The Sessions Court confirmed the conviction and the sentences recorded by the trial Court. Aggrieved by the same, the accused preferred the present revision. 3. The point for consideration is whether the prosecution has brought home the guilt of the accused beyond reasonable doubt. 4. PW.2 is an independent mediator before whom PW.1 allegedly lifted samples. PW.2 turned hostile. He did not support the prosecution version. Consequently, the evidence of PW.1 alone remained to prove the case of the prosecution. 5. Sri C. Praveen Kumar, learned counsel for the accused contended that the prosecution committed several irregularities and that the accused deserve to be acquitted on account of the latches committed by the prosecution. He drew my attention to Section 11 (4) of the Act. Section 11 (4) envisages that the food article seized u/s.10 (4) of the Act shall be produced before the Magistrate forthwith and at the rate not later than 7 days after the receipt of the report of the public analyst. Section 13 (3) of the Act adumbrates that on receipt of the analyst report, a copy of the report should be furnished to the person from whom the sample is lifted within 10 days from the date of receipt of the copy of the report. The learned counsel for the accused also drew my attention to Rule 9-B of the Rules. Rule 9-B envisages that the Local (Health) Authority shall forward a copy of the report of the analyst to the person from whom the sample is lifted within 10 days from the date of institution of the prosecution against such a person. It is the case of the learned counsel for the accused that the prosecution failed to comply with the provisions of Section 11 (4) and Section 13 (2) of the Act and Rule 9-B of the Rules. 6. As already pointed out, the prosecution examined two witnesses out of whom PW.2 did not support the prosecution story. Consequently, the only evidence available is the evidence of PW.1. PW.1 is the Food Inspector. From his evidence, the learned counsel for the accused culled out certain dates. 7. The Food Inspector visited the premises of A.2 on 28.11.1998 and lifted the sample. The sample was sent to the public analyst on 30.11.2008. The analyst submitted his report on 06.01.1999. While so, the complaint was lodged on 01.02.2000 and notice u/s.13 (2) of the Act was issued to the accused on 12.12.2000. As rightly submitted by the learned counsel for the accused, these dates are admitted facts from the evidence of PW.1 himself. Now, the question is whether the prosecution did not comply with the provisions of the Act. 8. Admittedly, as the Act is a penal enactment, the provisions deserve to be construed directly. The learned counsel for the accused placed reliance upon P. Chandrakanth v. State of A.P.[1]. It is a decision of Andhra Pradesh High Court. The High Court referred to a judgment of the Supreme Court in Resham Singh v. State of Punjab[2] and applied the same to the facts of the present case. The accused in that case was also charged with the offences under the Act. The report of the analyst was dated 24.12.1993. The Sanitary Inspector laid the complaint more than eight months thereafter on 26.08.1994. The High Court considered that such abnormal delay in filing the complaint would amount to prejudice to the accused. 9. In Ruchi Infrastructure Ltd., Mumbai v. Food Inspector, Div.- II, Nalgonda[3], the Andhra Pradesh High Court considered the effect of Section 11 (4) of the Act. In that case, the seized sample was not produced before the Court within 7 days from the date of the report as envisaged by Section 11 (4) of the Act, but was submitted to the Court along with the complaint. The High Court held that there was a delay of more than 18 months in submitting the sample before the Court which deprived opportunity to the accused to send it for further analysis and held that the delay certainly caused prejudice to the case of the accused. 10. In the present case, the sample was lifted on 28.11.1998. The report of the analyst was on 06.01.1999. U/s. 11 (4) of the Act, the sample should be sent to the Court not later than 7 days from the date of the report of the analyst. The analyst report could have been received by the Court in January, 1999 itself. The sample, however, was submitted to the Court on 01.12.2000 along with the complaint. The question of explanation of the delay in submitting the sample to the Court does not arise. As Section 11 (4) of the Act is mandatory, failure to comply it should be construed as a fact favourable to the accused. At any rate, the prosecution did not explain why there was delay in submitting the lifted sample to the Court expeditiously. The prosecution thus violated the provisions of Section 11 (4) of the Act, which shall entitle the accused to an acquittal. 11. The other violation on the part of the prosecution is under Rule 9-B of the Rules. Under Rule 9-B, the Local (Health) Authority shall forward a copy of the report of the analysis to the person from whom the sample lifted within 10 days from the date of the registration of the case against such a person. The complaint in this case was lodged on 01.12.2000. While so, notice u/s. 13 (2) of the Act was issued on 12.12.2000 only. Thus, 11 days have elapsed between the date of the complaint and the date of notice while Rule 9-B of the Rules envisages 10 days notice. This is yet another violation on the part of the prosecution. 12. Added to it, there is abnormal delay in filing the complaint, after receipt of the analyst report. As already pointed out, the report of the analyst was dated 06.01.1999 while the complaint was lodged on 01.12.2000. Nearly two years elapsed from the date of the report of the analyst till the date of the complaint. Absolutely no explanation was offered by the prosecution for the delay in filing such a complaint. This action shall again act as a factum in favour of the accused and against the prosecution. 13. As the Prevention of Food Adulteration Act is a penal enactment, the enforcing authority shall implement the procedure strictly, failing which the accused would be entitled to the benefit of doubt. Where it is found that the prosecution violated the mandatory provisions u/s. 11 (4) and 13 (2) of the Act as well as under Rule 9-B of the Rules, the accused cannot be found guilty for the offences under the provisions of the Act. 14. I agree with the contention of the learned counsel for the accused that the trial Court as well as the appellate Court erred in appreciating the violation of the mandatory provisions u/s. 11 (4) & 13 (2) of the Act and Rule 9-B of the Rules. 15. Therefore, the Criminal Revision Case is allowed. The accused are found not guilty of the offences with which they are charged by the operation of the benefit of doubt in view of the violation of the statutory provisions. The accused, consequently, are acquitted. The fine amount, if already paid by the accused, shall be refunded to them. Their bail bonds shall stand discharged. _______________ K.G. SHANKAR, J Date: 10.02.2011 Isn [1] 2002 (2) ALD (Crl.) 113 [2] 1973 Crl.L.J. 766 [3] 2008 (2) ALD (Crl.) 711 (AP)