THE HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA CRIMINAL REVISION CASE No.936 of 2004 DATED: 09-08-2010 ORDER: This revision is filed by the petitioner-accused, questioning the judgment, dated 31-05-2004, passed in Crl.A.No.129 of 2001 by the learned VI Additional District & Sessions Judge (FTC), Ongole, confirming the judgment, dated 22-06-2001, in C.C.No.284 of 1996 on the file of the learned Additional Judicial Magistrate, Kandukur, whereby the petitioner herein-accused was convicted and sentenced to undergo simple imprisonment for a period of six months for the offences punishable under Sections 16 (1) (a) (i) r/w 7(1) and 2 (ia) (m) of the Prevention of Food Adulteration Act. 2. It is the case of the prosecution that on 23.08.1995, the Food Inspector, Ongole inspected the shop of the revision petitioner-accused and found that the revision petitioner was transacting the business of toddy in the said shop and on suspicion that the toddy was being adulterated, he purchased 600 ML of toddy and sent it to the Public Analyst for analysis and the Analyst opined that the sample does not confirm to Alcohol and therefore adulterated. Thereupon, he sent the Analyst report to the Director, Institution of Preventive Medicine, Public Health Laboratory and Food Health Administration, A.P. Hyderabad and obtained prosecution order and thereafter, he laid a complaint and the same was taken on file by the learned Magistrate as C.C.No.284 of 1996. 3. During the course of trial P.Ws.1 to 4 were examined and Exs.P1 to P20 were marked. No oral or documentary evidence was adduced on behalf of the accused. 4. Having analyzed the entire evidence, the learned Magistrate came to the conclusion that the petitioner is guilty of the said offences and accordingly convicted and sentenced him as stated supra. As against the same, petitioner herein filed Crl.A.No.129 of 2001 and the same was dismissed by the lower appellate Court. Aggrieved thereby, the present revision is preferred. 5. When this matter is taken up for hearing, learned counsel for the petitioner has drawn my attention to the judgment of this Court reported in GAZETTED FOOD INSPECTOR, DIV-I, MAHABUBNAGAR DISTRICT v. P.MOHAN GOUD[1] and submitted that the Food Inspector though is competent to lift samples has not followed the procedure provided for under the provisions of the Excise Act and the Rules made thereunder, but followed the provisions provided under the Prevention of Food Adulteration Act and the Rules made thereunder and the said procedure is not correct and as such, prosecution has to fail. 6. In the light of the submission, this Court has gone through the said decision, wherein at paragraph No.7 it is held as follows: “The Analyst report in the instant case shows that the sample did not conform to alcohol content. The sample containing less percentage of alcohol content cannot be termed as adulterated having due regard to the Rules 4 and 5 of the latter Rules. The sample has not been analyzed by the Chemical Examiner as envisaged under the provisions of the former Rules. Lifting of the samples and getting the samples analyzed as has been done in this case by the Food Inspector are in total deviation to the provisions of the Rules envisaged under the former Rules. The penal provisions are contained in the Excise Act. Section 34 thereof prescribes penalties for illegal import, export, transport, manufacture, sell or possess, of any intoxicant. The expression “intoxicant” is defined under clause (19) of Section 2 of the Excise Act. As per the said provisions the expression “intoxicant means any liquor as defined in clause (21) thereof. As discussed hereinabove, clause (21) of Section 2 defines the expression “liquor” which is an inclusive definition and it includes toddy. Therefore, toddy though it is tapped from a tee, is a liquor and consequently intoxicant as per the provisi9ons of the Excise Act. If such an intoxicant is sold in contravention of any Rules issued under the Excise Act, it is punishable under Section 34( thereof. Section 36 thereof prescribes penalty to holder of licence for his misconduct. Section 37 thereof prescribes penalty for adulteration by the licensed vendor or manufacturer. The provision specifically envisages that if the licensee indulges in mixing or permitting to mix with the intoxicant being sold or manufactured by ;him any noxious drug or any foreign ingredient likely to ad to its actual or apparent intoxicating quality or strength or any article prohibited by any Rule made under the Excise Act. Therefore, adulteration of toddy shall have to be understood as contained in Section 37 of the Excise Act and as contained in Rule 5 of the latter Rules. The samples not conforming to the alcohol content, as has been drawn and analyzed in the instant case, cannot be considered to be adulterated under the provisions of the Excise Act and the Rules framed specifically in respect of toddy intoxicant. The whole case launched against the respondent herein in that view of the matter is misconceived”. 7. From the above, it is clear that the case on hand is squarely covered by the said judgment, cited supra, and this Court has no hesitation to come to the conclusion that the petitioner is entitled to be acquitted. Accordingly, the judgments of the Courts below are hereby set aside and the fine amount, if any, paid by the petitioner shall be refunded to him. 8. Accordingly, Criminal Revision Case is allowed. _______________________________ GOPALA KRISHNA TAMADA,J 09th August, 2010. Tsy [1] 2006(1) ALT (CRL) 29 (A.P.)