THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1150 of 2004 Date: 28.01.2011 Between: Gutha Sreenivasa Rao … Petitioner AND State of A.P. rep.by P.P. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1150 of 2004 ORDER: The two accused faced trial before the learned Special Mobile Magistrate, Guntur for the offence under Section 2 (i-a) (a) and Section 7 (i) read with Section 16 (1)(a) (ii) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’). The trial Court convicted both the accused for the offences u/s.16 (1)(a)(ii) r/w 2 (i-a)(a) and Section 7 (i) of the Act. Each of the accused was sentenced to rigorous imprisonment for a period of one year and fine of Rs.3,000/-. 2. Assailing the same, both the accused laid appeal before the X Additional District and Sessions Judge’s Court, Guntur. During pendency of the appeal, the second accused breathed his last. The case against the second accused stood abated on the ground of his death. Only the first accused faced trial before the appellate Court. The learned X Additional Sessions Judge, Guntur held that the finding of the guilt of the accused by the trial Court was justified. He consequently confirmed the conviction as well as sentence recorded by the trial Court. Aggrieved by the judgment of the appellate Court, the present revision is laid. 3. Sri A. Hari Prasad Reddy, learned counsel for the accused contended that PW.4, mediator in this case is not an independent witness. The case of the prosecution is that on 15.12.1998 PW.1 who is the Food Inspector surprised the shop of A.2 at Guntur at about 11.30 a.m. He was accompanied by his immediate subordinate, who is PW.3. A.2 was the licence holder of the departmental stores raided by PW.1. A.1 was transacting business at the shop. 4. Suspecting adulteration of the red gram, PW.1 purchased 750 grams of red gram at Rs.23/- from A.1 under Ex.P.5 receipt. Thereafter, PW.1 served Form-VI notice upon A.1. A.1 acknowledged the same. PW.1 drew samples in accordance with the provisions of the Act. One of the samples was sent together with Form No.VII-Memo to the State Laboratory for analysis. The analyst opined under Ex.P.14 report that the sample did not confirm to the standards of damaged grain, that the sample contained excess of uric acid and that the sample, therefore, was adulterated. Inter alia, the learned counsel for the accused contended that there was no mixture of any other adulterated food item in the sample and that the sample, therefore, cannot be treated as adulterated. As pointed out by the representative of the Public Prosecutor, the excess uric acid itself is tantamount to adulteration. The contention of the learned counsel for the accused that it cannot be considered to be adulteration, therefore, cannot be countenanced. 5. The learned counsel for the accused further contended that there was no inconsistency between PWs.1 and PW.3 regarding the time of inspection and that the same, therefore, is fatal to the prosecution case. PW.1 deposed that he inspected the premises at 12.30 a.m. I consider that PW.1 deposed that he inspected the premises at 12.30 p.m. and not at 12.30 a.m. 12.30 a.m. would be at mid night time. Perhaps the trial Court by slip recorded that PW.1 deposed that the time of inspection was 12.30 a.m, whereas he intended to record that the time of inspection was 12.30 p.m. PW.3 on the other hand deposed that the time of inspection was 11.30 a.m. Between the evidence of PWs.1 and 3, there is a time gap of about one hour regarding the time of inspection. Added to it, PW.3 is admittedly the immediate subordinate of PW.1. 6. The learned counsel for the accused/revision petitioner contends that albeit PW.3 is the direct subordinate of PW.1 and PWs.1 and 3 allegedly acted in consortium, PWs.1 and 3 did not agree regarding the time of inspection. Added to it, PW.3 deposed that on 14.12.1998, i.e., the day before the date of inspection, PW.1 informed PW.3 that the next day i.e., on 15.12.1998, PW.1 would be surprising the shop of A.1 and A.2. It is the contention of the learned counsel for the accused that there was any amount of pre-mediation for PW.1, which can be culled out from the evidence of PW.3. I may point out that it is the duty of PW.1, as Food Inspector, to verify the shops whether the food is sold without adulteration. If PW.1 decided to ride the shop of accused, I am afraid that it cannot be considered to be pre- mediation and animosity of PW.1 towards the accused. At the same time, when PW.3 was a direct subordinate of PW.1, where PWs.1 and 3 did not agree regarding the time of inspection and they mentioned the time of inspection with a gap of one hour, the evidence of PWs.1 and 3 deserves to be regarded with some suspicion. Added to the fact, it is the case of the prosecution that PW.1 waited for about 15 minutes before he called PW.4 to act as a mediator. The learned representative of the Public Prosecutor contended that PW.4 was an independent witness and that he is not a stock mediator. It is not the case of the accused that PW.4 is a stock mediator. The accused, on the other hand, contends that PW.4 was the recipient of a favour from PW.1 and that PW.4, therefore, was trying to pay back PW.1 by speaking in tune with the prosecution case. In this case, the evidence of PW.1 that he waited for about 15 minutes before choosing a mediator also becomes suspicion. Again the suspicion between the time gap as mentioned by PWs.1 and 3 as to the time of inspection and the time taken by PW.1 before he chose the mediator under Ex.P.4 are suspicious circumstances. However, I am afraid that they do not go to the root of the case and do not throw out the prosecution story wholly. 7. But, there is a very important technical lacuna in this case. As already pointed out, Ex.P.14 is the report of the analysis of the State Laboratory. Ex.C.1 is the analysis report of the Central Food Laboratory. The Central Food Laboratory report under Ex.C.1 did not speak about the presence of the uric acid, which was mentioned in Ex.P.14 State Laboratory Report. The Central Food Laboratory, however, also found that the sample was indeed adulterated food being not according to the specifications and that it does not confirm to the standards of damaged grain. 8. Curiously, the trial Court did not confront the accused with the Central Laboratory Report at the time of the examination of the accused u/s.313 (1)(b) Cr.P.C. When the learned counsel for the accused contended that it would be fatal to the prosecution case, the learned representative of the Public Prosecutor submitted that there was no major variation between the State and Central Food Laboratory reports. I am afraid that it is of no consequence whether the State report and the Central report are identical or in variance. Once the Central Food Laboratory report is available, the State Food Laboratory report is deemed to have been superseded. This Court held in Kamalapuram Narayana Shetty v. State of A.P.[1] that if the accused is not confronted with the Central Food Laboratory report, the conviction on the basis of the Central Food Laboratory report would not be proper. As in the reported decision, in the present case also, the accused was not confronted with the Central food Laboratory report at the time of the examination under Section 313 (1)(b) Cr.P.C. by the trial Court. Consequently, Ex.C.1 report became non est. In the light of Ex.C.1, Ex.P.4 became superseded, so much so, the technical evidence against the accused that the sample drawn was adulterated food item does not exist. Once the prosecution failed albeit for technical reasons that the sample was not adulterated food substance, the accused would be liable to be acquitted. Indeed, there was no short fall on the part of the prosecution. In fact, the trial Court ought to have confronted the accused with Ex.C.1. The trial Court has not chosen to do so. However, the benefit of such situation would accrue to the accused. 9. All in all, the prosecution for technical reasons is found to have failed in establishing the guilt of the accused for the offence levelled against him. The trial Court and the appellate Court gravely erred regarding the legality of not confronting A.1 with Ex.C.1 Central Food Laboratory report in Section 313 Cr.P.C. examination. The non- confronting of the accused with Ex.C.1, for the reasons already stated, is fatal to the prosecution case. The accused, consequently, is liable to be found not guilty. 10. Accordingly, the Criminal Revision Case is allowed. The conviction recorded against A.1 is set aside. A.1 is found not guilty of the offence with which he is charged and is acquitted. The bail bonds of A.1 shall stand discharged. The fine amount, if any, shall be refunded to the accused. _______________ K.G. SHANKAR, J Date: 28.01.2011 Isn [1] 2004 (1) ALT (Crl.) 124 (AP)