IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No.1644 of 2005 Between: The Food Inspector, Div-I, Nellore District. Rep by The Public Prosecutor, High Court of A.P., Hyderabad Appellant / Petitioner AND I.Saride Sri Rama Bhanoji Rao, C/o.M/s.Hindustan Coco Cola Beverages Pvt., Ltd., Gudipallipadu Village, Nellore District And another. …Respondents / Accused The Court made the following: THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1644 of 2005 ORDER: Aggrieved by the acquittal of the accused in C.C.No.15 of 2003 on the file of the IV Additional Judicial First Class Magistrate, Nellore, by the judgment dated 25.04.2005, the State preferred the present appeal through the learned Public Prosecutor. The Food Inspector, Division – I, Nellore visited M/s.Hindustan Coca-Cola Beverage Private Limited at Gudipallipadu, Nellore District on 19.04.2001 at about 11.15 A.M., when the first accused was transacting business at the manufacturing unit. The first accused disclosed that he is the person responsible under the Prevention of Food Adulteration Act, 1954 (‘the Act’, for brevity) for the company and the Coca-Cola bottles were stated by him to be for human consumption. The Food Inspector purchased the Coca-Cola bottles and obtained cash receipt. After service of Form VI notice, the samples were divided into three parts and appropriately labelled as per procedure. One sample was sent to the Public Analyst for analysis, who opined that the sample did not conform to the permissible limit of Mold count and was therefore, adulterated. The Director, Institute of Preventive Medicine accorded written consent for prosecuting the first accused and also the company as the second accused. Hence, both the accused were charged for the offence punishable under Sections 2(i-a)(m), 7(i) and 16(I)(a) (i) of the Act. After appearance of the accused before the Court, they were furnished with the copies of the documents and they denied the offence when they were examined under Section 251 of the Cr.P.C. The prosecution examined P.W.s.1 and 2 and marked Exs.P.1 to P.18 during trial, and accused denied the incriminating circumstances appearing in the evidence against them, when they were examined Under Section 313 of the Cr.P.C. They examined D.W.1. The trial Court rendered the impugned judgment referring to the oral and documentary evidence placed before it and rejected the contention about any violation of Section 11(4) of the Act. The trial Court also rejected the contention of the accused about the qualifications of the Public Analyst – D.W.1. It further rejected the claim about the invalidity of the appointment of the Food Inspector or any absence of application of mind in according sanction for the prosecution or any irregularity in the method adopted by D.W.1 in analyzing the sample. However, while dealing with the delay in issuing notice under Section 13(2) of the Act, the trial Court noted that the samples were lifted on 19.04.2001. The sample was sent to Public Analyst on 20.04.2001 and the sample was analyzed and report was sent on 28.05.2001. It further noted that the report was received at Guntur on 28.05.2001 and also sent to P.W.1 on 20.06.2001 after which, proposals for sanctioning were submitted by P.W.1 on 12.08.2002. The notice under Section 13(2) of the Act was sent after the launch of the prosecution on 20.12.2002. Though the said notice was sent within ten days after the offence was taken cognizance by the Court, the prosecution did not answer the delay between 19.4.2001 and 20.12.2002. The delay of one year eight months included one year taken for sanction and one month taken for sending the Public Analyst report to P.W.1. The trial Court noted that the beverage had a shelf life of only three months and the declaration by the manufacturer about the article being best before the specified date was only for six months. Referring to Section 13(2) and Rule 9(b) of the Act and the admission of P.W.1 about the life of the sample and the decisions cited before it, the trial Court felt it clear that the accused were prejudiced by the delay of nearly twenty months in serving notice under Section 13(2) of the Act. The trial Court also noted the violation of Rule 17(b) of the Prevention of Food Adulteration Rules, 1955 (‘the Rules’, for brevity) by P.W.1 and further observed that there was no document to show that the first accused was in-charge of the company and that the company was shown as the accused without showing any persons to be representing the company. Due to these glaring defects and more particularly the loss of opportunity for the accused under Section 13(2) of the Act, the trial Court concluded that the prosecution miserably failed to prove the guilt of the accused and consequently acquitted the accused. The appellant contends that any delay in launching the prosecution is not fatal when it was properly explained, and the mandatory provisions of the Act and Rules were faithfully followed, which could lead to the conviction of the accused. Sri K.Venkateswara Rao, learned counsel representing learned Public Prosecutor and Sri Leo Raj, learned counsel for the accused are heard. The point for consideration is whether the prosecution has to fail on the grounds relied on by the trial Court. The conclusions of the trial Court rejecting the arguments of the learned defense counsel on the specific aspects referred to above were not challenged so far by the accused in any manner, and the truth of the inspection by P.W.1 and lifting of samples by him on the relevant date are not in dispute. Further proceedings, as spoken to by P.W.1, are also not factually in controversy. Therefore, the questions that remain for consideration are only those relating to Notice under Section 13(2) of the Act and the tenability of prosecuting the first and second accused for the alleged offences. The chronology of events that led to the prosecution were extracted in the impugned judgment and the gap of about twenty months between lifting of sample and sending of Notice under Section 13(2) of the Act is patent. Apart from the absence of any justification for the delay, more particularly the delay of about one year in according sanction and about one month in sending a copy of the Public Analyst report to the Food Inspector, the expiry of the shelf life of the article of food long long before launching the prosecution and sending of Notice under Section 13(2) of the Act is patent, and the accused were therefore, deprived of their valuable right to have the sample re-analyzed by the Central Food Laboratory. Deprivation of such right was consistently held by this Court to entitle the accused to the benefit of reasonable doubt and acquittal. The observations of the trial Court about the absence of any documentary evidence to show the responsibility of the first accused for the business of the company on the relevant date and about the company - a juristic person, being sought to be prosecuted without being represented by any person also are substantial grounds, and the tenability of the prosecution in the manner in which it was launched is a matter of grave doubt. In such circumstances, the acquittal of the accused cannot be considered to be improper or illegal and the judgment of the trial Court cannot be interfered with in this appeal. Consequently, the Criminal Appeal is dismissed. ______________________ JUSTICE G.BHAVANI PRASAD December 03, 2009 BVV