THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL REVISION CASE NO.227 OF 2005 Date: 23.12.2011 Between: Bhawar Lal …..Petitioner And K.Sairam, Food Inspector, Guntur Municipal Corporation, Guntur District and another …..Respondents THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL REVISION CASE NO.227 OF 2005 ORDER: Heard Sri Venkateswar Rao Posani, the learned counsel appearing for petitioner and the learned Additional Public Prosecutor. 2. Petitioner in this revision case is accused No.1 in S.T.C.No.16 of 2002 on the file of the Court of IV Additional Munsif Magistrate, Guntur (trial court). The case arises under the Prevention of Food Adulteration Act, 1954 (for short Act). 3. The petitioner was tried on charges under Sections 16(1)(a) and 7(1) read with Section 2(ia)(m) of the Act on the allegation that he kept adulterated vanaspathi for preparation of sweets meant for sale in his shop in Guntur town. Accused Nos.2 and 3 are said to have manufactured the said vanaspathi and sold the same to accused No.1. 4. After considering the matter and evidence, the trial court by its judgment dated 22.9.2004 acquitted accused Nos.2 and 3 on the ground that there was no material to hold that they supplied the vanaspathi in question to accused No.1, but convicted accused No.1 of the above charges and sentenced him to undergo simple imprisonment for six months and also to pay a fine of Rs.1,000/- with a default clause prison sentence of one month for non-payment of fine. Questioning the said judgment, accused No.1 i.e. the petitioner herein preferred Crl.A.No.431 of 2004. That appeal was dismissed by the Court of I Additional Sessions Judge, Guntur (appellate court) by its Judgment dated 10.2.2005. Aggrieved by the same, the petitioner has come up with this revision case. 5. The following facts need to be noted for deciding the point whether the material on record is sufficient to sustain the convictions recorded by the both the courts below. The sample of the food article i.e. the vanaspathi was lifted from the shop of accused No.1 on 14.10.1999 by P.W.1 the Food Inspector. He sent one of the samples to the State Food Laboratory for analysis and the Public Analyst has submitted his report dated 20.11.1999 marked as Ex.P.14. In the said report the Analyst opined that the sample does not conform to the standards of red units in respect of Baudouin’s test and therefore it is adulterated within the meaning of the Act and the Rules. Basing on this Ex.P.14 Analyst report, the Food Inspector obtained the sanction order from the competent authority on 4.10.2001 and filed complaint on 26.3.2002. 6. It is seen that the Food Inspector has served notice under Section 13(2) of the Act on accused Nos.1 to 3 after launching the prosecution and that notice is dated 1.4.2002. It may then be noted that thereafter at the instance of accused No.3 the other sample was sent to the Central Food Laboratory and that laboratory sent its report dated 19.8.2002 which is marked as Ex.P.26. The said report reads that the sample does not conform to the standards of vanaspathi laid down in item No.A.19.0 of appendix ‘B’ of the PFA Rules (1955) inasmuch as the sample remains hazy on melting and shows presence of sediments and therefore the sample is adulterated. 7. Sri Venkateswar Rao Posani argued that the notice under Section 13(2) of the Act was given nearly two years three months after the sample was collected on 14.10.1999 and that there is also complete variation in the reports of the Central Food Laboratory and the State Food Laboratory as both have given different reasons for holding that the sample is adulterated. His argument is that because of a lapse of two years three months the sample could have become hazy and developed sediments and therefore this itself is a ground for setting aside the convictions of accused No.1 also. 8. On the other hand, the learned Additional Public Prosecutor pointed out that the Central Food Laboratory’s report would supersede the State Food Laboratory’s report and consequently the Central Food Laboratory’s report i.e. Ex.P.26 can be relied upon and convictions can be confirmed. So far as the legal position is concerned, it is true that the report of Central Food Laboratory will supersede the State Food Laboratory’s report and there is no dispute on this aspect. 9. To appreciate the rival contentions of Sri Venkateswar Rao Posani and the Additional Public Prosecutor, the opinions of the State Food Laboratory and the Central Food Laboratory should be noted. The State Food Laboratory’s report so far as the tests done, the values obtained and permitted values read as follows. Tests done Values Values permitted in Clause obtained A.19 in Appendix B to the P.F.A. Rules. Butyro-refractometer 48.0 Not less than 48 reading at 400 C Melting point 370 C 31.00 C to 410 C Unsaponifiable matter 1.85 Not more than 2.0% Free fatty aids (as Oleic acid) 0.22% Not more than 0.25% Moisture 0.08% Not more than 0.25% Test for Vitamin A Positive Should be positive Test for Nickel Negative Synthetic food colour Absent Should be absent Castor oil test Negative Baudouin’s test Positive Shall be positive (colour Red units 0.6 produced by Baudouin’s test shall not be lighter than 2.0 red units in 1cm. cell) Opinion: I am of the opinion that the sample does not conform to the standards of Red units in respect of Baudouin’s test for Sesame oil. It is therefore adulterated. 10. It may thus be noted that from the above contents of Ex.P.14 i.e. the State Food Laboratory’s report it is clear that all the values were within the values permitted by item A.19 in Appendix B to the PFA Rules except Baudouin’s test result which showed that it was less than the minimum of 2.0 red units in 1 cm. cell. 11. Now coming to Ex.P.26 i.e. the Central Food Laboratory’s report, its contents are as follows: 1. Moisture content: 0.03% 2. Free fatty acid as oleic acid: 0.19% 3. Melting point (capillary slip method): 37.80 C 4. B.R.Reading at 600 C: 37.8 5. Baudouin’s test: Positive, 3.2 red units in 1 cm. cell on livibond scale in 1:4 ration with groundnut oil 6. Test for presence of Vitamin A: Positive 7. Unsaponifiable matter: 0.87% 8. Test for presence of mineral oil: Negative 9. Test for presence of argemone oil: Negative 10.Test for presence of oil soluble coaltar colour: Negative Opinion: Sample does not conform to the standards of vanaspati laid down under item No.A.19.0 of Appendix ‘B’ of the PFA Rules (1955) in that sample remains hazy on melting and shows presence of sediments. Sample is thus adulterated. 12. A perusal of the contents of the Central Food Laboratory’s report would show that even in respect of baudouin’s test it shows that the sample contained of 3.2 red units i.e. more than the minimum of 2.0 in 1 cm. cell prescribed for vanaspathi and that test result is also normal. Ex.P.26 would however show that the Analyst who gave the said report opined that the sample remains hazy on melting and shows presence of sediments. It may be noted that haziness in a sample of vanaspathi and the sediments in it, in my opinion, would be easily visible to any Food Analyst but these things were not mentioned in Ex.P.14 i.e. State Food Laboratory’s report. It should be noted here that the other sample was sent to the Central Food Laboratory after more than two years from the date of lifting of the sample. This long gap of two years may have its own effect on the vanaspathi sample and it is quite possible that because of the said delay the sample must have become hazy and have developed sediments also. 13. What should be noted is that the sample sent to the Central Food Laboratory proved positive even for baudouin’s test contrary to Ex.P.14 report of the State Food Laboratory as it held the sample is adulterated because of a negative result of the baudouin’s test. This is a plus point for the petitioner on that aspect and shows his innocence. On the other hand, the Central Food Analyst opined that the sample is adulterated because it developed haziness and sediments which were not detected by the State Food Analyst and which would have been easily visible to him also. To repeat, it cannot therefore be ruled out that the sample must have subsequently developed haziness because of its long storage and the sediments also can be said to be the result of that long storage. In such a situation it follows that accused No.1 must also be held to have lost his valuable opportunity under Section 13(2) of the Act to get the other sample analysed immediately after the State Laboratory’s report was obtained to get a proper report and this was not possible because of the long delay of more than two years in launching the prosecution. 14. In the above circumstances two views i.e. one in favour of the accused showing his innocence and the other in favour of the prosecution are permissible. In such a situation it is well settled that the one which is favourable to the accused should be preferred. For the aforesaid reasons I am of the opinion that the convictions recorded by both the courts below cannot be sustained. Accordingly, this revision case is allowed and the petitioner is also acquitted. The fine amounts, if any paid, shall be refunded to the petitioner after the expiry of time available to prosecution to pursue its further remedies against this order. ___________________________ JUSTICE N.RAVI SHANKAR 23rd December, 2011 Tjmr THE HON’BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL REVISION CASE NO.227 OF 2005 DATE: 23.12.2011