IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SEVENTH DAY OF OCTOBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1299 OF 2009 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND 1. Sri Gadila Srinivas 2. L. Shanker Goud ..... 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 16 (1-A) (i) read with 2(ia) (j) and 7 (i) of the Andhra Pradesh Prevention of Food Adulteration Act, 1954, (for short 'the Act'), vide judgment, dated 19.09.2007, in C.C.No.1039 of 2006, passed by the learned Judicial Magistrate of I Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad. 2. Brief facts that are necessary for disposal of the present criminal appeal may be stated as follows: P.W.1-Food Inspector, Division-III, Ranga Reddy District, inspected the Bar and Restaurant of the accused, M/s. Rathna Bar & Restaurant, situated at 2-2-303, 1st and 2nd floor, Nagole, Hyderabad, Ranga Reddy District, on 24.07.2004 at about 4.00 p.m. and at that time, A1 was transacting the business. P.W.1 found 5 kgs. of prepared food, i.e., Mutton Biryani in a big vessel. On enquiry, the accused stated that the Mutton Biryani was meant for sale for human consumption. P.W.1, on suspicion that it was adulterated, purchased 900 grams of Mutton Biryani and divided the same into three equal parts. After following the due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, vide Ex.P19-report, dated 03.08.2004, opined that the sample contained synthetic colours Tartrazine and Sunset Yellow and therefore, it was adulterated. Thereafter, P.W.1 submitted a detailed report to the Director, State Food (Health) Authority for consent. The Director of the State Food (Health) Authority 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 of Cr.P.C. for the offences punishable under Sections 16 (1-A) (i) read with 2 (ia) (j) and 7 (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.W.1 and marked Exs.P1 to P22. 5. After closure of the prosecution evidence, the accused were examined under Section 313 of 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, acquitted the accused on the ground that there was a delay of 11 months in serving the notice under Section 13 (2) of the Act and Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules'), have been violated. Hence, this Criminal Appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the offences punishable under Sections 16 (1-A) (i) read with 2 (ia) (j) and 7 (i) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 would clearly go to show that P.W.1 purchased 900 grams of Mutton Biryani from the Bar and Restaurant of the accused; that as per Ex.P19-report, dated 03.08.2004, of the Public Analyst, the sample contained synthetic colours of Tartrazine and Sunset Yellow and the same was found to be adulterated; that mere delay in serving the notice by itself is not a ground to acquit the accused and therefore, the accused committed offences punishable under Sections 16 (1-A) (i) read with 2 (ia) (j) and 7 (i) of the Act, and 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 the 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. 10. It is the case of the complainant that P.W.1 inspected the Bar and Restaurant of the accused on 24.07.2004 at about 4.00 p.m. and purchased 900 grams of Mutton Biryani and divided the same into three equal parts. After following the due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, vide Ex.P19- report, dated 03.08.2004, opined that the sample contained synthetic colours Tartrazine and Sunset Yellow and therefore, it was adulterated. 11. Rule 17 of the Rules contemplates thus: “The containers of the sample shall be despatched in the following manner, namely:- (a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means: (b) The sealed containers of the remaining two parts of the sample and two copies of the memorandum I Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means: (c) The sealed container of one of the remaining two parts of the sample and a copy of the memorandum in Form VII kept with the local (Health) Authority shall within a period of 7 days be sent to the public analyst on requisition made by him to it by any suitable means: Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the following additional information, namely:- (a) Grade; (b) Agmark lable No. / Batch No; (c) Name of packing station.” 12. Similarly, Rule 18 of the Rules contemplates thus: “A copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent, in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day.” 13. Therefore, from a perusal of the above rules, it is clear that the seals of the sample have to be sent to the Public Analyst separately by suitable means. Therefore, the complainant came forward with a specific version that the sample of article of food in question was dispatched by Registered Post. But the postal receipt under which the article of food was sent to the Public Analyst has not been filed. 14. Ex.P9 is the Form No.VII Memorandum, dated 26.07.2004, wherein it is mentioned that a copy of memorandum and specimen impression of the seal used to seal the packet of the sample is being sent separately by post/hand. There is no indication in this document that the sample was sent by post/hand. 15. As seen from Exs.P11 and 12, it is clear that the sample has been sent through P. Chakravarthy, Office Attender. When the contents of Exs.P11 and 12 were sent through Registered Post, the postal receipt has to be filed. If the contents of Exs.P11 and 12 were sent separately through person, that person has to be examined. That person is not examined to show that the sample that was entrusted to him at the Bar and Restaurant of the accused was infact handed over to the Public Analyst or not. 16. Similarly, there was a delay of nearly 11 months in serving the notice under Section 13 (2) of the Act on the accused. No doubt, the accused has not made any application about his right to make a request to the concerned Magistrate to send the second sample to the Director, Central Food Laboratory as contemplated under Section 13 (2) of the Act, which 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.” 17. No doubt, in this case, admittedly, the accused has not availed the right as contemplated under Section 13 (2) of the Act, but at the same time, after lapse of 11 months, the article of food may not be fit for analysis because of the perishing nature of the article of food. In such circumstances, no useful purpose would be served even if the sample is to be analysed by the Director, Central Food Laboratory. The trial Court, on these two grounds, rightly acquitted the accused. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. The Criminal Appeal is devoid of merit and is liable to be dismissed. 18. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 19.09.2007, in C.C.No.1039 of 2006, passed by the learned Judicial Magistrate of I Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad. _______________ (K.C. BHANU, J) Date: 27th October, 2009 KL