HONOURABLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1183 of 2005 JUDGMENT: The acquittal of the accused in C.C.No.40 of 2003 on the file of the VII Additional Munsif Magistrate, Guntur, by the judgment dated 24/11/2004, led the State to present this appeal through the learned Public Prosecutor. The factual background is that the Gazetted Food Inspector, Zone-III, Guntur, inspected M/s.Salute Beverages Private Limited, Edulapalem, Guntur District, on 15/05/2002 at about 1 PM and found 753 trays of Mango drink (Frooti) exposed for sale for human consumption. In the presence of the first accused, the Process Manager of the Company, the Gazetted Food Inspector, purchased nine sealed packets of the mango drink for Rs.90/- under a cash receipt from the first accused attested by the despatch assistant of the company and the attender of the Food Inspector. After serving Form-VI notice to the first accused, the samples were divided into three equal parts and kept in three clean, dry and empty cartons and after affixing labels and paper slips, the signatures of the first accused and two witnesses were obtained on each sample packet. The inspection report was also accordingly prepared and on the next day a sample along with Form-VII was sent to the public analyst. The public analyst opined the sample to be adulterated and on receipt of the report on 03/07/2002, the written consent of the Director, Institute of Preventive Medicine, was obtained and a complaint was filed against the Process Manager, Managing Director and the company, represented by the Managing Director. After taking the case on file and serving the copies of documents to the accused, the accused were examined under Section 251 of the Code of Criminal Procedure. When they pleaded not guilty, P.Ws.1 and 2 were examined during the trial and Exs.P-1 to P-25 were marked. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and they had no defence evidence. The trial Court rendered the impugned judgment firstly concluding that 753 trays of mango drink kept in the premises of the company were so kept for being destroyed on return of the stocks from sellers after the dates of expiry of the drink. The trial Court also observed that the Food Inspector failed to note the date of manufacture, batch number and date of expiry anywhere in the record and the public analyst report also did not show whether the analysis was made before or after the expiry date. The prosecution was, hence, considered to have failed to prove that the sample was analysed within its life. The trial Court further noted that there was no written consent from the Director, Institute of Preventive Medicine, for the prosecution of the third accused and the first accused who is only the Process Manager of the company is neither the Managing Director nor a partner that can be considered responsible for the adulteration. The trial Court also considered that the prosecution of the Managing Director of the second accused in the absence of written consent for the prosecution of the company is also bad and further noted that Section 13 (2) notices were sent to the accused on 14/02/2003 nine months after drawing the sample while the life of the mango drink is only six months. Considering that A-1 to A-3 lost their valuable right to send the sample for re-analysis to the Central Food Laboratory the trial Court considered the accused to be entitled to acquittal. Consequently, it gave the benefit of reasonable doubt to the accused and acquitted them. The challenge to the said judgment in this appeal is on the ground of the trial Court failing to view the evidence in proper perspective and failing to honour strict compliance with the mandatory provisions of the statute. Hence, the prosecution desired the acquittal to be reversed. Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor and Sri K.Rama Koteswara Rao, learned counsel for the respondents are heard. The only point for consideration is whether the prosecution proved the guilt of any or all of the accused 1 to 3 for an offence punishable under Section 16 (1A) (ii) of the Prevention of Food Adulteration Act, 1954 (for brevity ‘the Act’). The facts are not in dispute and the conclusions of the trial Court on the admitted and proved facts do not appear to be divorced from the reasonable probabilities arising out of the evidence placed before the Court. The penalty under Section 16 of the Act is attracted only when the import or manufacture or storage of an article of food was for sale or distribution and it is only the intended consumption of the adulterated article of food by any person likely to cause death or bodily harm that was desired to be punished without reference to any mens rea under the statute. In the present case, 753 trays of mango drink (frooti) found in the premises of the third accused company were not shown to have been stored for any offensive purpose within the meaning of the statute and the claim in defence that the said stocks were received back from sellers after the expiry of the life of the product for being destroyed was not shown to be unconvincing by the evidence on record, more so, when the Food Inspector had never taken the precaution of noting the date of manufacture, batch number and date of expiry of the products in question. So was also the analyst report which was deficient in such particulars and ex-facie, it cannot be said that the sample analysed found to be adulterated was so analysed before the expiry date of the product. The absence of written consent to prosecute the third accused company makes the prosecution of the third accused untenable and without a tenable prosecution against the company itself, the Managing Director could not have been prosecuted as the second accused as Section 17 of the Act mandates the joint prosecution of not only the company but also the person nominated to be in-charge of and responsible to the company for the conduct of its business together. The first accused as rightly noted by the trial Court was not shown to be in- charge of or responsible to the company for the conduct of the business of the company or more particularly for dealing with the stocks in question. That apart, irrespective of all other considerations, the denial of the right to the accused to have the sample re-analysed by the Central Food Laboratory due to Section 13 (2) notices being served on them nine months after drawing the samples cannot be overcome by the prosecution and the denial of such a valuable right for the accused was consistently held by binding precedents to be entitling the accused to the benefit of reasonable doubt and consequential acquittal. Under the circumstances, there are absolutely no merits in the appeal which has to fail. In the result, the Criminal Appeal is dismissed. ___________________ G.BHAVANI PRASAD, J 24th October 2009 SKM