THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1297 of 2009 (Dated : 26-10-2009) Between: State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Appellant/Petitioner A n d Jai Narayan S/o Ramprasadji Lingampally, Ranga Reddy District …Respondent/Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1297 of 2009 JUDGMENT: This Criminal Appeal, filed by State, is directed against the judgment of acquittal dated 22.10.2007 in Calendar Case No. 946 of 2006 on the file of the Judicial Magistrate of First Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad at L.B.Nagar, whereunder and whereby, the respondent/accused was found not guilty of the offence punishable under Section 16(1)(a)(ii) read with 2(ia)(m) and 7(i) of the Prevention of Food Adulteration Act, 1954 (for short, the Act). 2. The brief facts that are necessary for disposal of this appeal, may be stated as follows: On 23.7.2002 at about 4.30 pm., P.W.1-Food Inspector along with his Attender, inspected the shop of the accused, who was transacting business, and found Sago stock. On suspicion that it was adulterated, he purchased 750 grams of the Sago stock from the accused, divided it into three equal parts, and after observing necessary procedure, one sample was forwarded for analysis to the Public Analyst, who after analysis, opined that the sample contains Optical Whitener and was therefore, adulterated. After obtaining written consent from the competent authority, the complaint is lodged. 3. When the accused was examined under Section 251 Cr.P.C., he denied the accusation levelled against him and claimed to be tried. 4. To substantiate its case, the prosecution examined two witnesses Pws 1 and 2 and got marked 22 documents, Exs.P-1 to P-22. No oral or documentary evidence was adduced on behalf of the accused. 5. The trial Court, upon consideration of evidence on record, held that there was no evidence to show that the complainant sent notice as contemplated under Section 13(2) of the Act, and accordingly, acquitted him. 6. Now, the point for determination is whether the complainant proved its case beyond all reasonable doubt for the offence under Section 16(1)(a)(ii) read with 2(ia) (m) and Section 7(i) of the Prevention of Food Adulteration Act, 1954?. 7. Learned counsel representing the Public Prosecutor contended that the evidence of PW.1 would go to show that he purchased Sago stock from the accused and the sample of the Sago was analysed by the Public Analyst, who opined that it contains Optical Whitener and therefore, it was adulterated and hence, the accused committed an offence punishable under Section 16(1)(a)(ii) read with 2(ia)(m) and Section 7(i) of the Act. 8. There is a presumption under law that the accused is presumed to be innocent unless the contrary is proved. The presumption of innocence is further strengthened by the order of acquittal. Normally this court, sitting in an appeal against the order of acquittal, would not ordinarily interfere with the judgment unless there exists substantial and compelling reasons. Some of them are: (i) Perverse finding is given; (ii) Findings are not based upon evidence; (iii) Inadmissible evidence has been taken into consideration; (iv) Admissible evidence has been overlooked. 9. No doubt, as seen from the report of the Public Analyst, the sample contained Optical whitener and therefore, it was adulterated. A valuable right is conferred on the accused by virtue of Section 13(2) of the Act to make a request to the concerned Magistrate to send the second sample to the Central Food Laboratory. There cannot be any dispute that the report given by the Director of Central Food Laboratory supersedes the report of the Public Analyst. Though, PW-1 produced postal receipt showing that he complied the mandatory provision under Section 13(2) of the Act, but mere production of postal receipt would not disclose that the accused received notice under Section 13(2) of the Act. He has not filed the acknowledgment showing receipt of 13(2) notice by the accused. 10. Furthermore, the date of inspection is 23.7.2002 and date on which the notice under Section 13(2) of the Act was sent to the accused was on 16.4.2003. So, there is a gap of about 9 months between the date of inspection and sending the notice under Section 13(2) of the Act, thereby depriving the right of the accused to make a request to the concerned Magistrate to send the second sample to the Central Food Laboratory. As the valuable right conferred on the accused has been lost, no useful purpose would be served even if the accused makes a request to send the second sample to the Director of Central Food Laboratory. Considering these aspects, the trial Court rightly acquitted the accused and there are no grounds to interfere with the findings of the trial Court. 11. The appeal is devoid of merit and is, accordingly, dismissed at the stage of admission confirming the judgment dated 22.10.2007 passed in C.C.No.946 of 2006 on the file of the Judicial Magistrate of First Class, Special Mobile Court-cum- XI Metropolitan Magistrate, Cyberabad at L.B.Nagar. ______________ (K.C.BHANU, J.) Dt. 26-10-2009 RAR THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1297 OF 2009 Date: 26.10.2009