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.1065 of 2005 Between: The Food Inspector, Medak District At Sangareddy. Rep by the Public Prosecutor, High Court of A.P., Hyderabad Appellant / Petitioner AND Deen Dayal, S/o. Ganga Bishan Joshi, Resident of Kukunta, BHEL – 23 And others. …Respondent / Accused The Court made the following: THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.1065 of 2005 ORDER: The acquittal of the accused in C.C.No.241 of 2003 on the file of the Court of the Judicial Magistrate of First Class, Special Mobile Court, Sangareddy, by the judgment dated 10.11.2004, led the State represented by the learned Public Prosecutor to prefer the present appeal. The factual background of the appeal is that, on 25.08.1999, at about 2.45 P.M., the Gazetted Food Inspector, Medak District, along with his attender B.R.Manik Rao, inspected the shop of the first accused at Kankunta, BHEL, and after disclosing his identity to the first accused who was managing the business, collected samples of Moong Dal for analysis in the presence of Y.Chandra Sekhar as mediator. The first accused failed to produce the purchase bill for Moong Dal and after serving of Form VI notice, the Food Inspector paid Rs.18/- towards cost of sample under a cash receipt, divided the samples into three equal parts and sealed them in accordance with the prescribed procedure. Proceedings were conducted under a panchanama and the sample was sent to the Public Analyst, who opined that synthetic food colour ‘Tartrazine’ was added to the article of food, which was therefore, adulterated. After obtaining written consent from the Food Health authority, a case was instituted in respect of offence punishable under Sections 16(1)(a)(i), 7(i)&(v) and 2(i-a)(m) of the Prevention of Food Adulteration Act, 1954 (‘the Act’, for brevity) and Rules 23 and 29 of the Prevention of Food Adulteration Rules, 1955 (‘the Rules’, for brevity). The copies of the documents were furnished to the accused after they entered appearance, and the case was initially tried as a Warrant Case and finding it to be incorrect, the case was again tried summarily. The accused denied the offence when they were examined under Section 251 of the Cr.P.C., P.Ws.1 to 4 were examined and Exs.P.1 to P.28 were marked during the trial. The accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Cr.P.C. and they did not produce any defence evidence. The trial Court rendered the impugned judgment referring to the evidence of P.W.1 – Gazetted Food Inspector, P.W.2 – Chief Public Analyst, P.W.3 – Panch witness and P.W.4 – the attender of P.W.1 and also the documents Exs.P.1 to P.28. The trial Court found that, notwithstanding the hostility of the mediator examined as P.W.3, the evidence of P.W.1 – Gazetted Food Inspector and P.W.4 – the attender of P.W.1 can be safely accepted in the absence of any compelling reasons for discrediting them. The trial Court also found that the mere absence of the word ‘Gazetted’ in Ex.P.16 - report of the Public Analyst makes no difference when P.W.1 was a Gazetted Food Inspector, and the trial Court also rejected the contention about some other sample being sent to Public Analyst than that collected from the shop, more so, due to absence of any cross-examination of P.W.1 to that effect. The trial Court further found that the collection of samples was in accordance with the procedure and the alleged violation of Section 13(2) and Rule 9(b) of the Act was not proved. The trial Court also found that Ex.P.16 - report of the Public Analyst did not mention whether the addition of synthetic food colour was injurious to health and whether any special tests were conducted by Public Analyst in that regard. The trial Court noted that the Public Analyst admitted that he did not refer to Rule 29 of the Rules under Ex.P.16 - report, but still concluded that no prejudice was caused to the accused by such factors. The trial Court, however, found that the offence for which Ex.P.20 - proceedings sanctioned the prosecution and the offence allegedly committed by the accused are different, and therefore, sanction accorded for prosecuting the accused is not in accordance with law. The trial Court further found that postal charges collected for sending one sample to Public Analyst at Rs.56/- and two samples to the Director, Institute of Preventive Medicine at Rs.52/- lend credence to the contention that a doubt is created about the postal charges being less for two samples than for one sample, which doubt should enure to the benefit of the accused. As there was no attempt by the Food Inspector to explain the discrepancy and as there was no application of mind by the Local (Health) Authority to the specific offence alleged to be committed by the accused, the trial Court gave advantage to the accused and acquitted them. The appellant contends that the Food Inspector complied with all the mandatory provisions and prescribed procedures without any irregularities and minor discrepancies and variations could not have resulted in acquittal of the accused. Sri. K.Venkateswara Rao, learned counsel representing learned Public Prosecutor for the appellant and Smt. P.Vijaya Lakshmi, learned counsel representing Sri T.V.K. Murthy, learned counsel for the respondents / accused are heard. It should first be noted that the accused did not challenge, in any manner so far, the conclusions of the trial Court about the truth of the investigation and lifting of samples of Moong Dal, the capacity of P.W.1 to lift the samples and take further action, the improbability of any other sample being sent to the Public Analyst and any irregularities in procedure in lifting the samples. The absence of any prejudice with reference to Section 13(2) of the Act and Rule 9(b) of the Rules and the absence of prejudice by the contents of Ex.P.16 – report of the Public Analyst are not seriously in dispute and need no consideration in the present appeal. Only two grounds then remain. The conclusions of the trial Court concerning the sanction for prosecution and apparent irreconcilable discrepancies concerning postal charges for sending the samples are also not factually in question. The prosecution of the accused and sanction for prosecution were regarding the offence under Sections 16(1) (a)(i), 7(i)&(v) and 2(i-a)(m) of the Act, whereas, the offence that can be attributed to the accused due to addition of synthetic food colour is one covered by Section 2(i-a)(j) of the Act under which, the presence of any colouring matter other than that prescribed in respect thereof, makes the article of food adulterated. When there was no sanction from the competent authority in accordance with the prescribed statutory procedure to prosecute the accused for the said offence, the prosecution obviously is incompetent, as held by the trial Court. The material discrepancies about the quantum of postal charges calculated in respect of samples sent to the Public Analyst and the Director also should enure to the benefit of the accused, as held by the trial Court. As proof of any offence against any suspect should be beyond reasonable doubt and it should be more so, in respect of technical offences like the one under the Act, any interference with a verdict of acquittal should also be on a very strong ground, and when the conclusions of the trial Court in this regard did not appear to be unreasonable or improper ex facie, such interference cannot be made. Accordingly, the Criminal Appeal is dismissed. ______________________ JUSTICE G.BHAVANI PRASAD December 03, 2009 BVV