THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.273 OF 2004 ORDER: This appeal at the instance of the State is directed against the acquittal of the accused in C.C.No.308 of 1997 by the Judicial First Class Magistrate, Nirmal on 13.02.2002. The respondent herein were prosecuted for the offences under Sections 16 (1) (a) (i) and 7 (i) of Prevention of Food Adulteration Act. According to the prosecution on 18.04.1997 as per the direction of the Judicial First Class Magistrate, Nirmal, P.W.1 – Food Inspector, Adilabad under the supervision of B.Subhakaran, Advocate-commissioner (P.W.3) located the toddy shop of the accused situated at Old Bus-stand, Nirmal by 11.30 A.M and found a person attending to the business. P.W.1 disclosed his identity and informed about the purpose of his visit. On enquiry he came to know the said person as S.Rajeshwar Goud, salesman (accused No.1), who stated that one G.Gangadhar Goud (accused No.2) is the license holder. Then, P.W.1 called the mediators viz., Badri Gangadhar and Akula Rajeshwar and in their presence inspected the toddy shop and found approximately 11 litres of toddy in an open plastic can. Accused No.1 disclosed that the said toddy is meant for sale and human consumption. P.W.1 suspected the quality, purchased 900 ml by paying cost of Rs.4.50 ps to accused No.1 and obtained cash receipt. Then he issued a notice in Form No.6 to accused No.1 informed him that the toddy purchased by him will be sent for analysis to Public Analyst, State Food Laboratory, Hyderabad and obtained his signature in token of having received the said notice. The purchased toddy has been divided into three equal parts, each part of the same was filled in three empty plastic containers. Each toddy sample was sealed properly to prevent leakage. P.W.1 prepared labels bearing No. 9/ADB/DI/14709/1997 and pasted them on each sample container, which were separately wrapped in a fairly thick, brown paper and their ends were folded neatly and affixed with gum and pasted a paper slip bearing code number and serial number of State Local (Health) Authority of Andhra Pradesh around from bottom to top of each sample container. Then each sample container was further secured by means of strong twine both above and across and affixed four distinct seals, one at the top and one at the bottom and two on the body of the sample container with the help of sealing wax and specimen impression seal. P.W.1 drafted mediators’ report to that effect, in the presence of accused No.1, mediators and court commissioner. The remaining stock was seized by P.W.1 and gave acknowledgement to accused No.1 in Form-V. On 19.04.1997 the seized stock of Toddy was deposited before the Court through Form No.66. One part of sample was sent to the Public Analyst, State Food Laboratory, Hyderabad along with a copy of Form No.7 under intimation to the Local (Health) Authority, Hyderabad by registered parcel. Another copy of memorandum in Form No.7 bearing Specimen impression of the seal was sent to the Public Analyst, State Food Laboratory, Hyderabad by registered post in a sealed cover with acknowledgement. The remaining two parts of the samples were sent to the Director, Institute of Preventive Medicine, Public Health Labs, and State Local (Health) Authority for Andhra Pradesh, Hyderabad in a sealed packet along with a covering letter and two copies of memoranda in Form No.7 by registered parcel. The Public Analyst, SFL, Hyderabad has submitted his report on 29.05.1997 to the State Local (Health) Authority, Hyderabad opining that the samples of toddy does not conform to the standards of alcohol content, total and volatile acidity and it also contains saccharine and is therefore adulterated. The same was received by the Local (Health) Authority, Hyderabad on 02.06.1997, which was received by P.W.1 on 26.06.1997 along with covering letter dated 30.05.1997. P.W.1 submitted details of case to the Director, Institute of Preventive Medicine, Public Health Labs and Food (Health) Authority, Andhra Pradesh, Hyderabad. The Food (Health) Authority, Andhra Pradesh, Hyderabad having satisfied that there is a prima-facie case of adulteration of toddy issued the sanction and P.W.1 filed the complaint against accused Nos.1 and 2. Both the accused denied the offence under Sections 16 (1) (a) (i) and 7 (i) of Prevention of Food Adulteration Act when they were examined under Section 251 Cr.P.C. by the lower Court. In order to establish the said charges, the prosecution examined P.Ws.1 to 3 and got marked Exs.P.1 to P.34. No oral and documentary evidence was adduced on behalf of the accused. The learned Magistrate by taking into consideration of the said oral and documentary evidence found both the accused not guilty for the offences under Sections 16 (1) (a) (i) and 7 (i) of Prevention of Food Adulteration Act and thereby acquitted them. Aggrieved by the said acquittal, the State has filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offences under Sections 16 (1) (a) (i) and 7 (i) of Prevention of Food Adulteration Act against the accused beyond reasonable doubt? P O I N T: The contention of the Additional Public Prosecutor is that the samples were taken in clean and dry containers and packed in accordance with the procedure prescribed under Food Adulteration Rules and there is no violation of any of the rules. After receipt of the analyst report immediately they have filed the complaint, thus there is no delay in lodging the complaint and the accused have not availed their right to send the 2nd sample to the Central Food Laboratory in spite of issuing notice. Since the complainant has fulfilled all the mandatory provisions of Food Adulteration Act, both the accused are liable to be convicted for the above said offences. The accused/respondents’ counsel on the other hand has pleaded that the lower Court has rightly observed that the samples were not taken in clean and dry containers; thereby there is every possibility of contamination of sample with any other substance and the sample was not analysed within the time prescribed under the Rules and in view of the delay, the sample might have decomposed before examination and as the notice was not served on the accused as required under Section 13 (2) of the Food Adulteration Act, he could not avail the right to send the 2nd sample to the Central Food Laboratory for analysis, thereby prejudice was caused to them, as such the lower Court has rightly acquitted the accused. He further pleaded that even though P.W.1 directed by the Court to inspect the toddy shop of the accused and produce samples before the Court immediately, P.W.1 has sent the samples directly to the Public Analyst in stead of depositing the same in the Court and thereby he has violated the Order of the Court. As per the evidence before the lower Court, P.W.1 is the Food Inspector, who has taken the sample, P.W.3 is the Commissioner appointed by the Court and P.W.2 is the mediator, in whose presence the samples were drawn, but P.W.2 has turned hostile to the prosecution and not supported the case of the prosecution. Thus, the only evidence available on record is P.Ws.1 and 3. According to P.W.1, he has taken the samples in clean and dry plastic containers, but P.W.3 has specifically stated in his cross- examination that the bottles were not cleaned in their presence. Therefore, the prosecution could not establish the lifting of the samples in clean and dry empty plastic containers as required under Rule 14 of the Food Adulteration Rules. P.W.1 has drawn the sample from the shop of the accused in pursuance of the directions issued by the Court under a search warrant. As per Ex.P.4 search warrant issued to the Food Inspector of Adilabad, authorizing him to check the premises i.e. shop Nos.3 and 5 and seize the toddy sample bottles under cover of Panchanama in the presence of B.Shubhakaran, Court-Commissioner and deposit the toddy sample bottles in the Court within 24 hours. Then P.W.1 inspected the shop of the accused and taken the samples in pursuance of the directions issued by the Court in Crl.M.P.No.732 of 1997 under Ex.P.4, but he has not deposited the samples in the Court as directed by the Court. Admittedly, he has sent the samples directly to the Public Analyst. Thus, P.W.1 has violated the directions issued to him under search warrant Ex.P.4. The sample was lifted on 18.04.1997. As per Public Analyst Report Ex.P.20 the sample was received by them on 22.04.1997 and analyzed on 29.05.1997 and the report was received by the Local Health Authority on 02.06.1997, in turn it was sent to P.W.1 on 26.06.1997, and the complaint was filed on 29.08.1997. Thus, there is delay of 4 months 11 days in filing the complaint by P.W.1. In view of lodging the complaint with delay of 4 months 11 days and as the notice was not served on the accused, they have lost their valuable right of sending 2nd sample to the Central Food Laboratory. According to P.W.1, notice under Section 13 (2) of Food Adulteration Act sent to the accused was returned un-served and the postal receipts were marked as Exs.P.22 and P.23 dated 20.09.1997 and the un-served cover was marked as Exs.P.24 and P.25 and again they sent a notice on 15.10.1997 to accused No.2 and the same was also un-served as per Exs.P.27 and P.28. Therefore, the notices sent to the accused were returned un-served. In “FOOD INSPECTOR, GUNTUR V. BARINISETTI HANMANTHA RAO[1]” this Court held that that mere proof of dispatch of notice is not sufficient and the prosecution must prove the service of notice on the accused and the failure in serving the notice amounts to non-compliance of Section 13 (2) of Food Adulteration Act and the accused is entitled for acquittal. In the present case, the notice was not served on the accused. Moreover, there is delay of 4 months 11 days in lodging the complaint, due to the long lapse of time there is every possibility of decomposition of samples, which were deposited in the public health authority. Therefore, in view of the decision rendered in “MUNICIPAL CORPORATION OF DELHI V. GHISA RAM[2]”, the accused have lost their opportunity of sending the 2nd sample to the Central Food Laboratory for analysis. Hence, the accused are entitled for acquittal on that ground. The lower Court also observed that only basing on the version of accused No.1, P.W.1 has stated that accused No.2 is the licensee of the shop and filed the complaint without making any proper enquiry in that regard and only after filing of the complaint after lapse of 4 years, they produced Exs.P.29 and P.30 to show that accused Nos.2 is licensee of the said shop. In view of the inordinate delay in obtaining the details of accused No.2, the lower Court has rightly observed that he is not liable for prosecution for the offences as alleged against him. Thus, the lower Court has rightly found the accused not guilty for the offences under Sections 16 (1) (a) (i) and 7 (i) of Prevention of Food Adulteration Act and the said findings recorded by the lower Court does not warrant any interference by this Court in the appeal. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 4th November, 2011 Ksp [1] 1994 Crl.L.J.1145 [2] AIR 1967 Supreme Court 970.