IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE THIRTIETH DAY OF OCTOBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1295 OF 2009 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Alladi Gnaneswar Gupta ..... Respondent/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 respondent/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 30.10.2007, in C.C.No.1108 of 2006, passed by the learned Judicial Magistrate of I Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad, L.B. Nagar. 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, Prakasam District, visited the shop of the accused M/s.Espee's King Horn Bakers, situated at opposite NMDC, Street No.8, Habsiguda, Ranga Reddy District, on 14.02.2002 at about 7.10 p.m., and at that time, the accused was transacting the business. P.W.1 found 750 grams of Chicken-65 kept in an open aluminum dish. On enquiry, the accused stated that the Chicken-65 is meant for sale for human consumption. P.W.1, on suspicion that it was adulterated, purchased 750 grams of Chicken-65 and divided the same into three equal parts and made three samples. After following due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, opined that the sample contained added synthetic colour and therefore, it was adulterated. Thereafter, P.W.1 submitted a detailed report to the Director, Institute of Preventive Medicine and State Food (Health) Authority, Hyderabad, for consent. The Director of the Institute of Preventive Medicine and State Food (Health) Authority, Hyderabad, has given a written consent to launch the prosecution against the accused. Thereafter, the complaint was filed. 3. When the accused was 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, he denied the offences, pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 and 2 and marked Exs.P1 to P19. 5. After closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. with reference to the incriminating material found against him in the evidence of prosecution witnesses. He denied the same and reported no evidence. 6. The trial Court, after considering the evidence on record, came to the conclusion that rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules'), have not been complied with, that there was an abnormal delay in serving the notice under Section 13 (2) of the Act and accordingly acquitted the accused. 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 he purchased 750 grams of Chicken-65 from the shop of the accused and divided the same into three equal parts and made three samples; that after following due procedure, one sample packet was sent to the Public Analyst for analysis; that as per the report of the Public Analyst, the sample contained added synthetic colour and the same was found to be adulterated; that after serving the notice under Section 13 (2) of the Act, the complaint was lodged, 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 Appeals 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. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. The evidence of P.W.1 would go to show that he purchased 750 grams of Chicken-65 from the shop of the accused on 14.02.2002 and divided the same into three equal parts and made three samples. After following due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, opined that the sample contained added synthetic colour and therefore, it was adulterated. The trial Court acquitted the accused on the ground that Rules 17 and 18 of the Rules have been violated. 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. As seen from the above rules, it is clear that the sample that was lifted from the shop of the accused has to be sent properly and that the specimen impressions of the seal affixed on the sample have to be sent separately to the Public Analyst. Unless it is shown that the sample that was taken from the shop of the accused is the self-same sample analysed by the Public Analyst, the accused cannot be convicted. There is absolutely no evidence to show that the article of food that was taken from the shop of the accused was the self-same sample that was analysed by the Public Analyst. 14. Further more, there was a delay of one year and eight months from the date of collecting the sample till the date of serving the notice under Section 13 (2) of the Act. By the time of serving the notice under Section 13 (2) of the Act, the article of food may not be fit even for analysis. 15. Section 13 (2) of the Act 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.” 16. The accused has got a right to make a request to the concerned Magistrate to send the second sample to the Director, Central Food Laboratory. The report given by the Director, Central Food Laboratory supercedes the report of the Public Analyst. That valuable right conferred on the accused has been lost. Though the accused has not made any request to send the second sample to the Director, Central Food Laboratory, but no useful purpose would be served even if the sample was sent to the Public Analyst because the article of food may not be in tact and same as it was lifted from the shop of the accused. Even after six months from the date of lifting the sample, the article of food which is perishable in nature may not be fit even for analysis. In this case, there was a delay of one year eight months from the date of lifting of sample till the date of serving the notice under Section 13 (2) of the Act. Therefore, the trial Court rightly acquitted the accused. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 17. Accordingly, the Criminal Appeal is dismissed at the stage of admission confirming the judgment, dated 30.10.2007, in C.C.No.1108 of 2006, on the file of the learned Judicial Magistrate of I Class, Special Mobile Court-cum-XI Metropolitan Magistrate, Cyberabad, L.B. Nagar. _______________ (K.C. BHANU, J) Date: 30th October, 2009 KL