IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
TELANGANA
********
CRIMINAL APPEAL NO.286 OF 2010
Date: 28.09.2021
Between:
The State of A.P., rep.by the
Public Prosecutor,
High Court of A.P., Hyderabad.
.....Appellant/Petitioner
And
Palakonda Rajender Goud, s/o.Janardhan Goud,
Aged 20 years, M/s. Laxmi General Store,
D.No.2-63, Main Road, Shadnagar Mandal,
Head Quarter, Mahabubnagar District and
another.
.....Respondents/accused
DATE OF JUDGMENT PRONOUNCED : 28.09.2021
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
PNR,J
Crl.A.No.286 of 2010
2
*THE HON'BLE SRI JUSTICE P.NAVEEN RAO
+CRIMINAL APPEAL No.286 OF 2010
%28.09.2021
# The State of A.P., rep.by the
Public Prosecutor,
High Court of A.P., Hyderabad.
.....Appellant/Petitioner
Vs.
$ Palakonda Rajender Goud, s/o.Janardhan Goud,
Aged 20 years, M/s. Laxmi General Store,
D.No.2-63, Main Road, Shadnagar Mandal,
Head Quarter, Mahabubnagar District and
another.
.....Respondents/accused
!Counsel for the appellant : Public Prosecutor for the
State
Counsel for the Respondents: Mr. V.Ravi Kiran Rao
<Gist :
>Head Note:
? Cases referred:
(2011) 9 SCC 479
(2011) 8 SCC 635
2007 (4) SCC 415
PNR,J
Crl.A.No.286 of 2010
3
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CRIMINAL APPEAL NO.286 OF 2010
ORDER:
Heard learned Public Prosecutor for the State and Mr. V.Rohit, learned counsel representing Sri V.Ravi Kiran Rao learned counsel for the accused.
2. The State is in appeal against judgment dated 31.10.2008 rendered by the Court of Judicial Magistrate of First Class, Shadnagar in C.C.No.36 of 2002 granting acquittal on the charge committing offences under Sections 16(1)(a), 7(i) and 2 (ia)(m) of Prevention of Food Adulteration Act, 1954 (Act, 1954).
3. The case of the prosecution is that on 20.03.1999 at 01.20 p.m., L.W.1-Food Inspector visited the premises of M/s.Laxmi General Store & Book Sellers and Stationery, Main Road, Shadnagar. He introduced himself as Food Inspector to Accused No.1, who was found to be managing the business, inspected the commodities of the shop and found 33 bottles of 300 ml. each quantity of Thums-Up cool drinks (beverage) kept in plastic boxes in Refrigerator for sale to public for consumption. Suspecting that there is adulteration in the said stock of Thums- Up cool drinks, L.W.1 decided to lift samples for analysis, purchased 9 sealed bottles from Accused No.1 for Rs.9/- per bottle, obtained cash receipt, drawn up notice in Form-VI and served on accused No.1 for the purpose of sending the samples for analysis. L.W.1 divided 9 Thums-UP bottles into three equal parts, tied each part of three bottles, affixed label bearing No.178/ MBNR/D1/22978/1999 to each part of the sample, sealed the ends as well as each bottle caps after fastening with twine thread PNR,J Crl.A.No.286 of 2010 4 with sealing wax and official seal covering on knots and each sample bottles are wrapped on thick brown paper separately, folded neatly and pasted the ends with gum, pasted the paper slip to each part from bottom to top and top to bottom with twine thread sealed four sides, one on top, one on bottom and one each both sides covering on knots. A1, L.W.1, L.W.3-panch witness and L.W.4-panch witness signed on each sample bottle, drafted the panchanama in English on behalf of panch witnesses. Contents of the panchanama were read over and explained to A1, L.W.3 and L.W.4. After collecting the samples in the above manner, on 22.03.1999 one part of the sample was sent to Public Analyst, State Food Laboratory, Nacharam, Hyderabad, under intimation to the Local (Health) Authority. A sealed cover memorandum in Form-VI with specimen impression of seal used to seal the said sample was sent separately in person through Anjaiah, Attender. The remaining two parts of the samples were deposited with the Director, IPM, PH Labs & Local (Health) Authority. On the basis of purchase bill produced by the Accused No.1 and as per label declaration of manufacturer firm, notice in Form-VI was sent to M/s.Bharath Coca Cola Bottling South East Private Limited, Mahanandi, Cross Roads, Gajulapalli, Kurnool District. After causing analysis of the said sample, the Public Analyst delivered the report in Form-III bearing No.252/99, dated 26.04.1999 along with covering letter bearing No.576/SFI/99, dated 28.04.1999. The Public Analyst opined that the sample contained moulds beyond the permissible limits and is therefore adulterated. In view thereof, the Director, Institute of Preventive Medicine, P.H. Labs & Local (Health) Authority, Narayanaguda, Hyderabad, accorded PNR,J Crl.A.No.286 of 2010 5 written consent under Section 20(1) of the Act, 1954 read with G.O.Ms.No.62, Medical and Health dated 30.01.1985 and directed L.W.2 to launch prosecution against Accused 1 to 4 for the offences under Sections 16(1)(a), 7(i) and 2 (ia)(m) of Prevention of Food Adulteration Act, 1954. Charge sheet was filed to this extent. The trial Court took cognizance for the above offences.
4. When the accused 1 and 2 were examined under Section 251 of Criminal Procedure Code, the charges were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.
5. As NBW against A3 and A4 were pending, the case against them was split up and numbered as C.C.No.152 of 2008 and the trial was conducted against accused No.1 and 2.
6. On behalf of the prosecution, P.Ws.1 to 3 were examined, and Exs.P1 to P38 were marked. No evidence was adduced on behalf of the Accused 1 and 2. After closure of the evidence of prosecution, when accused 1 and 2 were examined under Section 313 of Cr.P.C., they denied the incriminating evidence. No evidence was produced by the accused. On both sides, written arguments were submitted to the Court.
7. On analysis of the evidence adduced on behalf of the prosecution, the trial Court found that the provisions of the Act, 1954 were not complied with reference to the submission of samples with final analysis report to the Court, with reference to affording opportunity to the accused 1 and 2 and also there was PNR,J Crl.A.No.286 of 2010 6 inordinate delay in filing the charge sheet, even after the competent authority accorded sanction for prosecution.
8. The trial Court found that in the cross-examination, P.W.1 admitted that he has not seen the purchased bill furnished by Accused no.1. He has also admitted in his cross-examination that the self life of Thums-Up cool drinks was three months from the date of its manufacture and after three months, it becomes unfit for consumption as moulds in the cool drink would increase thereafter. He has also admitted in his cross-examination that he received Ex.P11-analysis report on 05.05.1999 and till his retirement on 30.06.2001, charge sheet was not filed. The trial Court noticed that though Public Analyst gave Ex.P11-analysis report on 26.04.1999, charge sheet was filed on 23.01.2002 i.e., after more than 2½ years from the date of receipt of Ex.P11- analysis report. The delay in filing charge sheet was not explained satisfactorily. The trial Court also noted from the testimony of P.W.1 that the seals of the sample bottles were intact and based on the purchase bill purchasing the sample bottles by the accused, he has sent notices to the manufacturer, who was Accused No.4, represented by its Managing Partner, accused No.3. The trial Court recorded the finding that in the absence of corroboration by independent witnesses the testimony of P.W.1 did not inspire confidence of the Court.
9. Having analyzed the evidence on record, having regard to the timeline noted above, and the legal position with reference to the liability of the manufacturer, the trial Court held that the prosecution miserably failed in complying the statutory mandate PNR,J Crl.A.No.286 of 2010 7 and leveling the charges against the accused when seals on the samples were intact, without proceeding against the manufacturer.
10. The Act, 1954 is made in supersession of the respective State Laws and is comprehensive dealing with all aspects of adulteration of food. It contemplates stringent provisions on manufacturing, storing, sale or distribution of adulterated and misbranded food; prescribes measures to prevent adulteration; provides for laying down food standards; prohibits import of certain objectionable articles of food items; and also provides for penal consequences for violation of provisions of the Act.
11. Having regard to the charges levelled against the accused, the relevant provisions of the Act, 1954 are Sections 10(4)1, 10(4A)2, 11(4)3, 13(2)4, 16(1)(a)(i)5 and Section 19(2)6. 1 Section 10. Powers of Food Inspectors:-
Sub-section (4): If any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided and he shall, in either case, take a sample of such article and submit the same for analysis to a public analyst.
Provided that where the food inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the food inspector deems fit and the vendor shall execute the bond accordingly.
2 Sub-Section (4A): Where any article of food seized under sub-section (4) is of a perishable nature and the Local (Health)Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed.
3Section 11. Procedure to be followed by food inspectors:- Sub-section (4): An article of food seized under sub-section (4) of Section 10, unless destroyed under sub-section (4A) of that section, and any adulterant seized under sub-section (6) of that section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst. 4 Section 13: Report of public analyst:-
Sub-section (2): 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 person 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 analyzed by the Central Food Laboratory. 5 Section 16. Penalties:-- -- (1) Subject to the provisions of sub-section (1A) if any person--
(a) Whether by himself or by any other person on his behalf, imports into India or manufacturers for sale or stores, sells or distributes any article of food--
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; 6
Section 19. Defences which may or may not be allowed in prosecutions under this Act.-- Sub-section (2): A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves--
(a) that he purchased the article of food--
PNR,J Crl.A.No.286 of 2010 8
12. Section 10 of the Act, 1954 vests wide powers in Food Inspectors on prevention of Food Adulteration. According to sub-
Section (4) of Section 10, if any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away or keep it in the safe custody of the vendor to be dealt with as provided in the Act and in either case, he shall take a sample of such article and submit the same for analysis by a public analyst. Section 11 of the Act, 1954 deals with the procedure to be followed by the Food Inspectors to take a sample of food for analysis. According to sub-section (4) of Section 11 of the Act, 1954, an article of food seized under sub-section (4) of Section 10, unless destroyed as required by sub-section (4A) of Section 10, should be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst.
13. Section 13 of the Act, 1954, deals with report of public analyst and steps required to be taken thereon. After the public analyst submits report holding that article of food was adulterated and prosecution was initiated against the persons, from whom the samples of the articles of food were taken, the Food Inspector should forward the copy of the report in the prescribed manner by duly 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 copy of the report to get the sample of article of food, kept by the Local (Health)
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
PNR,J Crl.A.No.286 of 2010 9 Authority, to be analyzed by the Central Food Laboratory. If an application is made under sub-section (2) of the Section 13 by the person or persons, the Court should require the Local (Health) Authority to forward the part or parts of the sample kept by the said authority and upon such requisition being made, the said authority should forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition (Sub-section (2A) of Section 13). On being satisfied that the samples were properly collected, sealed and kept intact and not tampered, one of the parts of the sample shall be sent under its own seal to the Director of the Central Food Laboratory. The Director of the Central Food Authority shall thereupon examine the samples of the food and send a certificate to the Court in the prescribed form within one month specifying the result of the analysis.
14. Section 16 of the Act, 1954, prescribes the penalties and Section 19(2) provides 'defences'. According to sub-section (1) of Section 19, accused cannot be permitted to say that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased the adulterated or misbranded article of food was not prejudiced by the sale. However, it is appropriate to note, to the extent relevant to the case, that according to sub-section (2) of Section 19 of the Act, 1954, the vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. In other words, if the vendor proves that PNR,J Crl.A.No.286 of 2010 10 seals are intact as purchased by him, the liability shifts to the manufacturer/producer/distributor.
15. The Act, 1954 aims to ensure that quality food is provided by vendors and no health hazard should be caused to the consumers. Thus, strict regime is put in place. At the same time, the Act also provides safeguards to the accused. Section 11(4) of the Act, 1954 mandates production of seized article of food to be produced before the Magistrate not later than seven days after the receipt of the report of the public analyst.
16. Next provision for consideration is Section 13(2) of the Act, 1954. Section 13(2) has three components. It pre-supposes that there should be a report of analysis of article of food from the public analyst. After receiving the report and after instituting the prosecution against the person concerned, the copy of the report of the result of the analysis be forwarded to the person concerned informing such person that if he desires, he can make an application to the Court within a period of ten days from the date of receipt of copy of the report to get the sample of article of food kept with the local authority, to be analyzed by the Central Food Laboratory. According to sub-section (2A) of Section 13, if such application is made to the Court under sub-section (2) of Section 13, the Court shall ask the local authority to forward the part of the sample kept with the authority. On such requisition received from the Court, the local authority should forward the part of the sample to the Court within a period of five days from the date of receipt of such requisition.
PNR,J Crl.A.No.286 of 2010 11
17. On a plain reading of Section 13 of the Act, 1954, it is apparent that statutory right is vested in the accused to receive a copy of the report of the public analyst and to file an application for referring the sample already collected for second opinion from the Central Food Laboratory. The section imposes strict timeline. It mandates that soon after analyst report is received, the local authority should supply copy of the report. It gives that person ten days time to make an application to send the samples for testing by the Central Laboratory. Alternatively, he can make an application to the Magistrate. When such application is made to the Magistrate, the Magistrate can call upon the local authority to forward the sample. On such requisition, the local authority is required to forward part of the sample to the Court within a period of five days from the date of receipt of such requisition. From this statutory scheme, it is seen that within seven days of submission of report by the Public Analyst, the seized food articles should be produced before the Magistrate. This timeline is crucial having regard to the self-life of any food item.
18. As noticed by the trial Court, the self life of beverage is three months from the date of the production. After three months naturally the moulds in the cool drink would increase and it would be unfit for consumption. If moulds develop after self-life the laboratory analysis cannot give accurate results. Juxtaposing this statutory mandate to the facts in issue, it is seen that the sample was collected on 20.03.1999, and the Public Analyst gave his report on 26.04.1999. While report was to be produced before the Magistrate on or before 02.05.1999, it was not produced even within a reasonable time from that date. The charge sheet was filed PNR,J Crl.A.No.286 of 2010 12 on 23.01.2002. As can be seen from the scheme of Section 13 of the Act, 1954, until charge sheet is filed and copy of the public analyst report is furnished to the accused/filed in the Court, he was not required to apply to refer the sample for second opinion. He may not even know the result of the analysis. Long before the charge sheet was filed, the three months of self life of beverage expired. Therefore, there was no possibility of second opinion as naturally moulds develop in the beverage bottle and long before 23.01.2002 the cool drink became unworthy for human consumption loosing the relevance to refer for second opinion. Therefore, after 23.01.2002 there could not have been a second analysis on the quality of the beverage.
19. The adverse food analysis report results in penal consequences. Therefore, Section 13 of the Act 1954 vests valuable right in the accused to seek second opinion of the sample by Central Laboratory, which was subjected for chemical analysis earlier. When statutory scheme embodies valuable right to seek second opinion, by his actions, deliberate or otherwise, no authority can frustrate such right and not affording opportunity vitiates the entire exercise. Having regard to the statutory scheme prejudice is apparent and palpable.
20. As noticed by the trial Court, there was absolutely no explanation as to why the concerned authority kept quite till 23.01.2002 i.e., for almost three years, after receiving report from the public analyst and not filing the report before the Court when statute mandates him to comply with Sections 11 and 13 of the Act, 1954. Thus, non-production of sample bottle before the trial PNR,J Crl.A.No.286 of 2010 13 Court, as required by Section 11(4) of the Act, 1954 and Section 13, is fatal to the case of the prosecution.
21. From the evidence on record it is seen that seals on the sample bottles collected by the Food Inspector were intact. The Food Inspector did not notice the date of production of beverage. When the seal on the product is intact and the accused produced bills in proof of purchase made, and the Food Inspector having taken steps to proceed against the distiller, the accused is entitled to take the defence provided by Section 19(2)(b) of the Act, 1954. It is not the case of the prosecution that the accused did not properly store the food article and that he did not sell the food article in the same state as he purchased it. Having regard to the provision in Section 19(2) of the Act, 1954, the prosecution case falls to the ground on this aspect also.
22. I have gone through the evidence adduced by the prosecution and judgment rendered by the trial Court. On careful consideration of the submissions of learned Public Prosecutor, I am not persuaded to upset the well considered decision of the trial Court.
23. It is appropriate to notice that while there are no fetters on the appellate Court to go into all aspects of the case, review, re-appreciate and reconsider the evidence, it must exercise judicial restraint in reversing the finding of not guilty. The presumption of innocence raises to higher pedestal whenever the trial Court or lower appellate Court grants acquittal. It is settled principle of law that the scope of consideration of appeal against acquittal is within a narrow bandwidth. It is not in every case this Court should PNR,J Crl.A.No.286 of 2010 14 reverse the decision of Court below granting acquittal, even when two views are possible on same set of evidence. Ordinarily, interference is not warranted even when acquittal is found to be wrong. An order of acquittal can be interfered with only when there are compelling and substantial reasons, such as 'clearly unreasonable', Court below 'ignored the evidence or has ignored material documents', bordering on perversity. (Mrinal Das vs. State of Tripura = (2011) 9 SCC 479; Maloth Somaraju Vs. State of Andhra Pradesh = (2011) 8 SCC 635).
24. In Chandrappa v. State of Karnataka7, the Hon'ble Supreme Court delineated the principles that emerged from plethora of decisions as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.7
2007 (4) SCC 415 PNR,J Crl.A.No.286 of 2010 15 (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(emphasis supplied)
25. Learned Public Prosecutor is unable to persuade the Court on attracting any of these ingredients to reverse the well considered decision of the lower appellate Court.
26. Having given my anxious consideration to the submissions of learned Public Prosecutor, in the facts and circumstances of this case, I am of the opinion that there is no illegality or perversity in the findings of the trial Court warranting interference by this Court.
27. The Criminal Appeal fails and is accordingly dismissed, confirming the judgment dated 31.10.2008 in C.C.No.36 of 2002 on the file of the Court of Judicial Magistrate of First Class at Shadnagar. Pending miscellaneous petitions if any shall stand closed.
___________________________ JUSTICE P.NAVEEN RAO Date: 28.09.2021 Kkm PNR,J Crl.A.No.286 of 2010 16 HONOURABLE SRI JUSTICE P.NAVEEN RAO CRIMINAL APPEAL NO.286 OF 2010 Date: 28.09.2021 kkm