* THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.2065 of 2004 % 12.12.2011 # The Food Inspector, Amadalavalasa …Appellant Vs. $ Talluri Ramamohana Rao & 3 others …. Respondents ! Counsel for the Appellant: Public Prosecutor ^Counsel for Respondent: Sri A.Ravi Shankar <Gist : >Head Note: ? Cases referred: 1993(1) Prevention of Food Adulteration Cases 86 THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.2065 of 2004 BETWEEEN: The Food Inspector, Amadalavalasa … Appellant AND Talluri Ramamohana Rao & 3 others … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2065 of 2004 JUDGMENT: The lower Court recorded acquittal of the respondents 1 to 4/A1 to A4 of the offence under Section 16(1)(a)(i), 7(i) and 2(i)(a) (f) of the Prevention of Food Adulteration Act, 1954 (in short, the Act) and questioning the same, the State filed this appeal. 2. The Food Inspector, PW1 took samples of Spik Cola Soft Drinks from shop of the accused by name M/s. Vijayalaxmi Aerated Waters, Amadalavalasa and sent one of the samples for analysis. The Public Analyst after analysis sent Ex.P19 report opining that the sample does not conform to total plate count and yeasts and moulds and also contains E.Coli and is therefore adulterated. After obtaining written consent from the Director, PW1 instituted the complaint before the Magistrate. 3. The lower Court recorded acquittal on two grounds namely, that there was no service of notice under Section 11(1) (a) of the Act and that notice issued by the Food Inspector to the accused under Section 13(2) of the Act was delayed abnormally. 4. The lower Court relied upon Parmeshwar Prasad Chaudhury Vs. State[1] of the Patna High Court and came to the conclusion that failure to issue notice under Section 11(1)(a) of the Act before taking sample for analysis is fatal to the prosecution. The lower Court observed that notice in this case was served in Form-VI to the accused, after purchasing Spik Cola Soft drink and after obtaining the cash receipt. Ex.P11 is copy of Form- VI notice served by the Food Inspector on A1 at the time of obtaining the samples from the shop. It reads as follows: FORM-VI (See Rule-12) To Sri Talluri Ramamohana Rao, Partner:- M/s.Vijayalaxmi Aerated Waters Industrial Estate,D.No.17-2-113, Amadalavalasa. I have this day taken from the premises of M/s.Vijayalaxmi Aerated Waters situated at Industrial Estate D.No.17-2-113 samples of the Food specified below to have the same analyzed by the Public Analyst for Amadalavalasa Municipality. Code & Sno- S19/98. Details of Food Spik Cola Soft drink Place: Amadalavalasa Municipality Date: 18-7-98 Sd/- Food Inspector Amadalavalasa Municipality 5. Section 11(1)(a) of the Act did not say that the required notice thereunder should be served by the Food Inspector ‘before’ or ‘after’ taking sample of food for analysis. Section 11(1) (a) reads as follows: “11. Procedure to be followed by Food Inspectors:- [(1) When a Food Inspector takes a sample of food for analysis he shall, - (a) give notice in writing then and there of his intention to have had so analyzed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A;” 6. On reading of language employed in the above sub- section, it is evident that service of notice thereunder should be contemporaneous with taking of sample of food for analysis. When the said sub-section does not contemplate service of notice before taking a sample of food for analysis, it would amount to misinterpreting the provision, incase it is held that the Food Inspector has to serve the notice thereunder in anterior point of time of taking the sample. Though Form -VI did not quote Section 11(1)(a) of the Act, but only quoted Rule 12 of the Prevention of Food Adulteration Rules 1955, it cannot be held that service of notice in Form-VI is not under Section 11(1)(a) of the Act. Section 11(1)(a) of the Act enjoins duty on the Food Inspector to serve notice at the time of taking sample of food. But the Act did not prescribe any form for giving the said notice. The statutory forms are prescribed by Rules. Rule 12 of the Rules deal with notice contemplated to be issued by the Food Inspector under Section 11(1)(a) of the Act and it enunciates that it should be in Form No.VI given in Appendix ‘A’ of the Rules. In the case on hand, PW1 gave Ex.P11 notice in Form VI to A1 at the time of taking the sample for analysis. Therefore, there is valid service of notice under Section 11(1)(a) of the Act read with Rule 12 of the Rules by giving Ex.P11 notice in Form VI. The lower Court erred on this aspect of the case. 7. Samples of Spik Cola Soft drink was obtained by PW1 in this case on 18.07.1998. The Public Analyst report in Form- III is dated 27.08.1998. There is inordinate delay of nearly ten months in obtaining written consent from the Director under Section 20 of the Act. Written consent in this case was obtained on 22.06.1999 and it was received by PW1 on 08.07.1999. Complaint in this case was filed by PW1 before the Magistrate on 04.08.1999. Originally, the complaint was filed before Judicial Magistrate of the First Class, Amadalavalasa and later the case was transferred to the lower Court i.e. the Special Judicial Magistrate of the First Class, Mobile Court, Srikakulam. Notice under Section 13(2) of the Act was served on A1 to A4 on 05.08.1999, 09.08.1999 respectively. By the time of receipt of the said notice under Section 13(2) of the Act, shelf life of a soft drink must have expired as the time gap was nearly thirteen months. Therefore, valuable right of the accused for sending the second sample to the Central Food Laboratory for second analysis and report became nugatory. On this ground, the lower Court rightly recorded acquittal of the accused. There are no grounds to come to a different conclusion in this appeal from that of the lower Court, even though the 1st ground under Section 11(1)(a) did not stand. 8. In the result, the Criminal Appeal is dismissed. __________________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:12.12.2011 Note: L.R. copy to be marked B/o.ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2065 of 2004 Dt:12.12.2011 ysk [1] 1993(1) Prevention of Food Adulteration Cases 86