IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SECOND DAY OF OCTOBER, TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1283 OF 2009 Between: The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Suresh Kumar Chowdary ..... Respondent/Accused The Court made the following: JUDGMENT: This Criminal Appeal, under Sections 378 (1) & (3) of the Code of Criminal Procedure, 1973, 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 31.10.2007, in C.C.No.1094 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-I, Ranga Reddy District, visited the shop of the accused situated at Plot No.267, Adarshnagar (Chilkanagar), Uppal Municipality, Ranga Reddy District, along with his attender on 13.10.2003 at about 2.00 p.m. and at that time, the accused was transacting the business. P.W.1 found 40 kgs. of redgram dall. On enquiry, the accused stated that the redgram dall was meant for sale for human consumption, but he did not disclose the source of supply. P.W.1, on suspicion that it was adulterated, purchased 1,500 grams of redgram dall and divided the same into three equal parts. After following the due procedure, one sample packet was sent to the Public Analyst for analysis. The Public Analyst, after analysis, opined that the sample contained synthetic colour Tartrazine 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 for consent. The Director of the Institute of Preventive Medicine and State Food (Health) Authority has given a written consent to launch prosecution against the accused. Thereafter, the complaint was filed. 3. When the accused was examined under Section 251 of the Code of Criminal Procedure, 1973, for the offences punishable under Sections 16 (1) (a) (i) read with 2 (ia) (j) and 7 (i) of the Act, he denied the same, 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 the Code of Criminal Procedure, 1973, 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 the prosecution failed to establish the guilt of the accused beyond all reasonable doubt 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 the article of sample was purchased from the shop of the accused; that as per the report of the Public Analyst, the sample contained synthetic colour Tartrazine and the same was found to be adulterated; that mere delay in lodging the complaint may not be fatal to the case of the prosecution, 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 Appeal 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. It is settled that it must be shown that the sample of food taken by P.W.1 from the shop of the accused, must be self- same sample analysed by the Public Analyst. This fact has to be proved beyond all reasonable doubt. Ex.P9 is the Form No.VII Memorandum, dated 11.12.2003, wherein at point No.5, it is mentioned that a copy of memorandum and specimen impression of the seal used to seal the packet of the sample is being sent separately by post/hand. There is no indication in this document that the sample was sent by post/hand. 11. As seen from Exs.P10 and 11, it is clear that the sample has been sent through D. Raju, Office Attender. The copies in the printed forms have been filled up. When the contents of Exs.P10 and 11 were sent through Registered Post, the postal receipt has to be filed. If the contents of Exs.P10 and 11 were sent separately through person, that person has to be examined. 12. Rule 17 of the of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules'), contemplates thus: “Manner of despatching containers of samples:- 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.” 13. Similarly, Rule 18 of the Rules contemplates thus: “Memorandum and impression of seal t be sent separately:- 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.” The object and purpose of aforesaid mentioned Rules is that the sample of article of food must be the same that was analysed by Public Analyst. 14. As seen from Ex.P9-Memorandum Form VII sent to Public Analyst, the sample sent was bearing No.ZVI/RRD/13865/2003, dated 14.10.2003. But as seen from Ex.P14-Public Analyst Report, the sample bearing No.ZVI/RRD/13866/2003, dated 14.10.2003, was received by the Public Analyst. Therefore, the sample which was collected from the accused and sent to the Public Analyst was not the self-same sample that was analyzed by the Public Analyst under Ex.P14. Similarly, there was a delay of nearly seven months from the date of collecting the sample till the accused informed about his right to make a request to the concerned Magistrate to send the second sample to the Director, Central Food Laboratory as contemplated under Section 13 (2) of the Act. 15. Section 13 (2) of the Act reads thus: “Report of Public Analyst: 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. No doubt, in this case, admittedly, the accused has not availed the right as contemplated under Section 13 (2) of the Act, but, at the same time, after lapse of seven months, the article of food might not be fit for analysis due to natural changes. The sample would be deteriorated especially when the article of food is perishable in nature. The sample would be affected with insects. In such circumstances, no useful purpose would be served even if the sample is to be analysed by the Director, Central Food Laboratory. The trial Court, on these two grounds, rightly acquitted the accused. The said order of acquittal does not suffer from any infirmities so as to call for interference by this Court. 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 31.10.2007, in C.C.No.1094 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: 22nd October, 2009 KL