IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE SIXTH DAY OF NOVEMBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1465 OF 2009 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND 1. Pampati Ashok Kumar 2. P. Satyanaryana ..... Respondents/Accused The Court made the following: JUDGMENT: This Criminal Appeal, under Sections 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed by the State against the order of acquittal of the respondents/accused of the offences punishable under Sections 7 (i) and 2 (ia) (m) of the Andhra Pradesh Prevention of Food Adulteration Act, 1954 (for short, “the Act”) punishable under Section 16 (1) (a) (i) of the Act, vide judgment, dated 22.09.2008, in C.C.No.40 of 2003, passed by the learned Judicial Magistrate of I Class, Luxettipet. 2. Brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows: P.W.1-Food Inspector, Division II, Adilabad District, inspected the shop of the accused on 29.06.2001 at 3.00 p.m. and at that time, Accused No.1 was present in the shop and transacting the business. P.W.1 found 10 kgs. of Double Filtered Groundnut oil, which was kept for sale for human consumption. P.W.1, on suspicion that it was adulterated, purchased 375 grams of Double Filtered Groundnut oil and divided the same into three equal parts and made three samples. After following due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, opined that the sample does not conform to the standards of Bellier’s Test (Turbidity temperature – acetic acid method) and therefore, it was adulterated. Thereafter, P.W.1 submitted a detailed report to the Director, Institute of Preventive Medicine, Public Health Labs and Food (Health) Authority, Hyderabad, for consent. The Director of the Institute of Preventive Medicine, Public Health Labs and Food (Health) Authority, Hyderabad, has given a written consent to launch the prosecution against the accused. Thereafter, the complaint was filed. 3. When the accused were examined under Section 251 Cr.P.C. for the offences under Sections 7 (i) and 2 (ia) (m) of the Act punishable under Section 16 (1) (a) (i) of the Act, they denied the offences, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 and 2 and got marked Exs.P1 to P17. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The trial Court, after considering the evidence on record, came to the conclusion that there was an abnormal delay in sending the notice under Section 13 (2) of the Act from the date of lifting the sample and that proper procedure has not been followed by P.W.1 in lifting the sample and therefore, acquitted the accused. Challenging the same, the present Criminal Appeal is filed by the State. 7. Now the point for determination is whether the complainant proved its case beyond all reasonable doubt against the accused of the offences under Sections 7 (i) and 2 (ia) (m) of the Act punishable under Section 16 (1) (a) (i) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 would clearly go to show that he purchased 375 grams of Double Filtered Groundnut oil from the shop of the accused and divided the same into three equal parts and made three samples; that after following due procedure, one sample packet was sent to the Public Analyst for analysis; that as per the report of the Public Analyst, the sample does not conform to the standards of Bellier’s Test (Turbidity temperature – acetic acid method) and the same was found to be adulterated, and therefore, the accused committed the offences under Sections 7 (i) and 2 (ia) (m) of the Act punishable under Section 16 (1) (a) (i) of the Act, and therefore, the complainant proved its case beyond all reasonable doubt. Hence, she prays to set aside the order of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. The evidence of P.W.1 would go to show that he purchased 375 grams of Double Filtered Groundnut oil from the shop of the accused on 29.06.2001 and divided the same into three equal parts and made three samples. After following due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, opined that the sample does not conform to the standards of Bellier’s Test (Turbidity temperature – acetic acid method) and therefore, it was adulterated. It is admitted by P.W.1 that he has not seized the Double Filtered Groundnut oil before taking the sample. The samples that were taken cannot be said to be a representative sample for the entire quality. P.W.1 has not made the oil homogeneous by stirring the oil in clockwise and anti-clockwise direction so that true values would come. Therefore, that procedure has not been followed. Further more, the sample was lifted on 29.06.2001. The Public Analyst gave the report on 07.08.2001. The competent authority gave written consent to prosecute the accused on 17.09.2002. Whereas, the notice under Section 13 (2) of the Act has been served on 17.09.2002. 11. Further more, there was a delay of one-and-a-half years from the date of collecting the sample till the date of serving notice under Section 13 (2) of the Act. By the time of serving the notice under Section 13 (2) of the Act, the article of food may not be fit even for analysis. 12. Section 13 (2) of the Act reads thus: “On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” 13. The accused have got a right to make a request to the concerned Magistrate to send the second sample to the Director, Central Food Laboratory. The report given by the Director, Central Food Laboratory supersedes the report of the Public Analyst. That valuable right conferred on the accused has been lost. Though the accused have not made any request to send the second sample to the Director, Central Food Laboratory, but no useful purpose would be served even if the sample was sent to the Public Analyst because the article of food may not be in tact and same as it was lifted from the shop of the accused. Even after six months from the date of lifting the sample, the article of food which is perishable in nature may not be fit even for analysis. 14. In this case, there was a delay of one-and-a-half years from the date of lifting of sample till the date of serving of notice under Section 13 (2) of the Act. There is no evidence to show that the preservative is added to the article of food in question in view of the abnormal delay of one-and-a-half years from the date of lifting of sample to the date of serving notice under Section 13 (2) of the Act. Therefore, the trial Court rightly acquitted the accused. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 15. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 22.09.2008, in C.C.No.40 of 2003, on the file of the learned Judicial Magistrate of I Class, Luxettipet. _______________ (K.C. BHANU, J) Date: 6th November, 2009 KL