Uddagari Satyarao, vs The State Of A.P., Rep By Pp., And ...
2022 Latest Caselaw 9321 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

         CRIMINAL REVISION CASE No.1106 OF 2008

ORDER:

This is a Criminal Revision Case filed under Sections 397

and 401 of the Code of Criminal Procedure, 1972 (for short, 'the

Cr.P.C') on behalf of the petitioner, who is accused in Calendar

Case No.47 of 2002, on the file of the Court of Judicial First Class

Magistrate, Srungavarapukota (for short, 'the trial Court'), and

appellant in Criminal Appeal No.126 of 2003 on the file of the

Court of I Additional District and Sessions Judge, Vizianagaram

(for short, 'the learned Additional Sessions Judge'), with a prayer

to revise the judgment, dated 24.07.2008, in Criminal Appeal

No.126 of 2003; where under the learned Additional Sessions

Judge, dismissed the Criminal Appeal filed by the petitioner herein

confirming the judgment, dated 08.09.2003, passed in C.C. No.47

of 2002 by the learned Magistrate, Srungavarapukota.

2. The petitioner faced trial in C.C. No.47 of 2002 under

Section 16(1)(a)(ii) R/w. Section 7(v) and 2(ia)(j) of the Prevention of

Food Adulteration Act, 1954 (for short, 'the Food Adulteration Act')

R/w. Rules 23 and 29 of the Prevention of Food Adulteration

Rules, 1955 (for short, 'the PFA Rules') and suffered conviction

AVRB,J Crl.R.C. No.1106/2008

before the trial Court and further the Appeal filed by him before

the learned Additional Sessions Judge, Vizianagaram came to be

dismissed. Having felt aggrieved of the same, the unsuccessful

accused in the Calendar Case, who was the unsuccessful

appellant in the Criminal Appeal, approached this Court by way of

this Criminal Revision Case.

3. The parties to this Criminal Revision Case will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

4. The State of Andhra Pradesh, represented by Food Inspector

of Division - I, Vizianagaram filed a complaint before the learned

Magistrate alleging, in substance, that on 18.05.2001 at about

10:30 AM, the complainant (hereinafter referred to as Food

Inspector) inspected the kirana shop of the accused, situated at

the main road of Kottam Village, along with his Assistant-cum-

Typist viz., R. Eswara Rao (PW.3). The accused was transacting

business at the time of the inspection. The Food Inspector, in the

shop of the accused, found kirana articles such as Rice, Spices,

Dals, Edible Oils, Sago etc., which are kept for sale of human

consumption. The Food Inspector, suspecting adulteration in sago,

purchased 750 grams of sago from the shop of the accused by

AVRB,J Crl.R.C. No.1106/2008

paying Rs.15/- in the presence of the Village Talayari (PW.2) and

also PW.3. The accused passed a receipt after receiving the sale

price. Then, the Food Inspector served Form-VI notice on the

accused informing his intention of sending the sample to the

Public Analyst, Hyderabad for the purpose of analysis. He divided

the 750 grams of sago into three equal parts of 250 grams each

and placed them in three clean, dry and empty plastic tins and

closed them tightly with caps and sealed them. Then, the Food

Inspector affixed labels bearing Code No.122/VZM/D-1 and Serial

No.2022/2001 of Local (Health) Authority on each of the three

plastic tins and affixed five seals with wax on each of the three

plastic tins and then obtained signatures of the accused on the

labels. Each sample was covered with thick cover paper and their

ends were neatly folded in and pasted together with gum. Then,

the paper slips containing signature, code number and serial

number were pasted on each of the three plastic tins covering

them from bottom to top and he obtained the signatures of the

accused on each of three sample tins in such a manner that both

paper slips and cover paper carry a part of signature of the

accused. Then, each of three sample tins were fastened by means

of strong twine both above and across the sample packets and

then he affixed four seals with sealing wax on each packet

AVRB,J Crl.R.C. No.1106/2008

covering the knots of the twine also (one seal on the top and

another seal on the bottom and the remaining two seals on both

sides of the sample plastic tins). Then, the Food Inspector asked

the accused to disclose the source of supply of the said sago. The

accused did not disclose the same. The Food Inspector drafted a

mediators report there. On 19.05.2001, the Food Inspector sent

one part of the sample along with a copy of Form-VII

memorandum with specimen impression of the seal used to seal

the packet to the Public Analyst, AP, Hyderabad under

acknowledgment to the Local (Health) Authority in a sealed packet

for the purpose of analysis by registered parcel vide receipt

No.5818, dated 19.05.2001. On the same day, one more copy in

Form-VII memorandum with specimen impression of the seal were

sent to the Public Analyst, AP, Hyderabad in a sealed cover

separately by registered post vide Receipt No.5250, dated

19.05.2001. The remaining two parts of the samples along with

two copies of form-VII Memorandum were sent to the Local

(Authority), Zone-I, Visakhapatnam in a sealed packet by

registered parcel vide Receipt No.5817, dated 19.05.2001. On

21.06.2001, the Local (Health) Authority, Visakhapatnam, received

Form-III report in quadruplicate from the Public Analyst, AP,

Hyderabad. On 25.06.2001, the Food Inspector received Form-III

AVRB,J Crl.R.C. No.1106/2008

report in triplicate from Local (Health) Authority, Visakhapatnam.

The Public Analyst opined that the sample contains fluorescence

matter and is therefore, adulterated. The Food Inspector, obtained

sanction for prosecuting the accused from the Director of Public

Health, Hyderabad and filed this case. Therefore, the accused is

liable for punishment under Section 16(1)(a)(ii) R/w. Section 7(v)

and 2(ia)(j) of the Food Adulteration Act R/w. Rules 23 and 29 of

the PFA Rules.

5. The learned Magistrate, on going through the complaint and

the supporting material, took cognizance of the case under Section

16(1)(a)(ii) R/w. Section 7(v) and 2(ia)(j) of the Food Adulteration

Act R/w. Rules 23 and 29 of the PFA Rules and numbered it as

C.C. No.47 of 2002. After appearance of the accused and after

completing the formalities under Section 207 Cr.P.C., the accused

was subjected to examination under Section 251 Cr.P.C, for which

he pleaded not guilty and claimed to be tried.

6. During course of trial on behalf of the complainant, PWs.1 to

4 were examined and Exs.P-1 to P-24 were marked. Thereafter, the

accused was examined under Section 313 Cr.P.C. with reference

to the incriminating circumstances appearing in the evidence

AVRB,J Crl.R.C. No.1106/2008

adduced by the complainant and he denied the incriminating

circumstances and reported no defence evidence.

7. The learned Magistrate, on hearing both sides and

considering the oral as well as documentary evidence on record,

found the accused guilty of the offence under Section 16(1)(a)(ii)

R/w. Section 7(v) and 2(ia)(j) of the Food Adulteration Act R/w.

Rules 23 and 29 of the PFA Rules and after hearing the quantum

of sentence, sentenced the accused to suffer Rigorous

Imprisonment for six (6) months and to pay a fine of Rs.2,000/- in

default to suffer Simple Imprisonment for one month.

8. Being aggrieved of the judgment of the trial Court, the

accused preferred Criminal Appeal No.126 of 2003 before the

learned Additional Sessions Judge, Vizianagaram which came to

be dismissed on merits on 24.07.2008.

9. As against the above, the unsuccessful appellant filed the

present Criminal Revision Case.

10. Now, in deciding this Criminal Revision Case, the point that

arises for consideration is as to whether the judgment, dated

24.07.2008, in Criminal Appeal No.126 of 2003, passed by the

learned Additional Sessions Judge, Vizianagaram suffers with any

AVRB,J Crl.R.C. No.1106/2008

illegality, irregularity and impropriety and whether there are any

grounds to interfere with such judgment of the Appellate Judge?

11. POINT: Sri Taddi Nageswara Rao, learned counsel for the

petitioner, would contend that PW.2, the so called mahazar

witness, did not support the case of the complainant. The evidence

of PW.1 has no corroboration from the evidence of PW.2. Even the

evidence of PW.1 has no corroboration from the evidence of PW.3,

who was the Office Assistant of PW.1. PW.4, the so called Scientific

Officer, did not follow the procedure prescribed in conducting the

chemical analysis test of the so called sample. The complainant

got marked Ex.P-11, the so called mahazarnama, which did not

disclose that PW.2 was secured by the Food Inspector to act as

mahazar witness. Even PW.1 did not depose properly in his chief-

examination that he secured the presence of PW.2 to act as

mahazar witness. It is mandatory, according to Section 10(7) of the

Food Adulteration Act, to call one or more persons to be present at

the time when the Food Inspector proposes to lift samples from

any shop. So, Section 10(7) of the Food Adulteration Act is

violated. Apart from this, when the petitioner sought before the

Court below to send the second sample to the Central Food

Laboratory, he was not given opportunity for sending the same to

AVRB,J Crl.R.C. No.1106/2008

the Central Food Laboratory. So, he was deprived of valuable right

to dispute the opinion of the Public Analyst. The trial Court

knowing fully well that PW.2 did not support the case of the

complainant, erroneously convicted the petitioner. PW.4, the

Public Analyst did not depose that the food article is injurious to

health. She deposed that she did not conduct chemical

examination except examining the sample microscopically. Even

she did not count the globules. Her report, that the globules

containing fluorescence by 10%, is without any basis. When the

petitioner got cited some decisions before the appellate Court, they

were not appreciated properly. Both the Courts below erroneously

subjected the revision petitioner to conviction and sentence as

such the Criminal Revision Case is liable to be allowed.

12. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, appearing for the complainant, sought

to support the judgments of the Courts below on the ground that

the learned Magistrate convicted the petitioner rightly basing on

the evidence available on record and the learned Appellate Judge

also appreciated the evidence on record and dismissed the

Criminal Appeal and there are no grounds to interfere with the

judgment of the learned Additional Sessions Judge.

AVRB,J Crl.R.C. No.1106/2008

13. The substance of the allegations in the complaint is that the

accused was running a Kirana shop. On 18.05.2001, the Food

Inspector inspected the Kirana shop of the petitioner and found

articles such as Rice, Spices, Dals, Edible Oils and Sago etc.,

which were kept for sale of human consumption. He suspected

adulteration in sago, purchased 750 grams of sago by following

the procedure. So, the allegation is that the accused stored the

sago meant for human consumption and ultimately the samples

were found to be adulterated.

14. To bring home the guilt against the accused, complainant

examined himself as PW.1, got examined PW.2, the so called

mediator, PW.3, the Office Assistant and PW.4 the Public Analyst.

15. Insofar as the evidence of PW.1 is concerned, before the

Court below, it was in detail speaking about the minute details.

16. Coming to the evidence of PW.2, the so called mediator, his

evidence is that he is a Village Talayari. He knows the accused

who is running a kirana shop. About two years ago, Food

Inspector and his staff came to the shop of the accused. Food

Inspector sent a word to him (PW.2) to come to the shop of the

accused. Hence, he went there and sat outside the shop. Food

AVRB,J Crl.R.C. No.1106/2008

Inspector went into the shop of the accused. He does not know

whether the Food Inspector inspected food items therein. PW.1

came out from the shop and obtained his signatures on Exs.P-7,

P-9 and P-11. PW.1 did not read over the contents of the same.

The Assistant Public Prosecutor got declared PW.2 as hostile and

cross-examined him. During the cross-examination, PW.2 denied

that in his presence PW.1 lifted the samples and he is deposing

false.

17. PW.3, Office Assistant, deposed that he accompanied along

with PW.1 to the shop of accused for inspection relating to sago

items and purchases thereto of PW.1 and lifting of samples and

that the accused did not reveal the source of supply etc.,

18. PW.4 is the Public Analyst, who deposed that on

22.05.2001, she received sample of Sago from Food Inspector,

Division-I, Vizianagaram with code No.122/VZM/D-1 and Serial

No.2022/2001 for analysis. She noticed the same on 04.06.2001

and dispatched the report on 18.06.2001. She opined that the

sample contains fluorescent matter and therefore adulterated.

Ex.P-17 is the report given by her.

AVRB,J Crl.R.C. No.1106/2008

19. Now, this Court would like to look into the defence of the

accused before PW.1 at the time of cross-examination. He deposed

in cross-examination that he did not mention in the mediators

report that he called the mediators. He denied that he obtained the

signature of LW.2 - Terapalli Bangarayya, since he is a

government employee and will be under his control and denied

that the sample tins are not clean and dry at the time of sampling

and that the Health Authority gave sanction without application of

mind. He denied that the variation in the standard, according to

the analyst opinion, arose because he did not use the sample

bottles with clean and dry and fluorescence arose due to improper

sampling.

20. By virtue of above, the accused did not dispute the visit

made by PWs.1 and 3 by securing the presence of PW.2. The

defence of the accused is that PW.1 simply obtained the signature

of PW.2 on the mediators report. So, the crucial defence of the

revision petitioner before PW.1 is that as PW.1 did not follow

proper sampling by using the clean and dry tins, the variation

arose and due to improper sampling only fluorescence arose.

21. The above defence set forth before PW.1 is negatived by

virtue of the answers elicited from the mouth of PW.4 during

AVRB,J Crl.R.C. No.1106/2008

cross-examination. She deposed in cross-examination that there is

no possibility of attaching fluorescence while transferring the sago

globules from one container to another container and fluorescence

is possible only at the time of manufacture. So, the defence set

forth before PW.1 is negatived by virtue of the answers elicited

during the course of cross-examination of PW.4.

22. The contention of learned counsel for the petitioner is that

though Section 10(7) of the Food Adulteration Act mandates

joining of the mediators but the contents in Ex.P-11 did not reveal

the same. This Court has carefully looked into the aforesaid issue.

Admittedly, according to Section 10(7) of the Food Adulteration

Act, where the Food Inspector takes any action under clause (a) of

sub-section (1), sub-section (2), sub-section (4) or sub-section (6),

he shall call one or more persons to be present at the time when

such action is taken and take his/her signatures. In this regard,

Ex.P-11 itself reads as it is a mediators report on the top of it. So,

when Ex.P-11 is literally styled as a mediators report, there is no

need to make any narration to the effect that PW.1 called the

mediators. Apart from this, PW.1 categorically deposed in his

chief-examination that he took the food articles in the presence of

accused and LWs.2 and 3, who were called as mediators. When

AVRB,J Crl.R.C. No.1106/2008

that is the situation, the contention of the petitioner that the

evidence of PW.1 did not disclose he called for the mediators or

that Ex.P-11 did not disclose that he called the mediators is not at

all tenable. One cannot read between the sentences of depositions.

The entire deposition of PW.1 and entire contents of Ex.P-11 are to

be looked into. If they are looked into, it goes without saying that

PW.1 secured the presence of PW.2 as mediator. It is altogether a

different aspect that PW.2 did not support the case of the

prosecution. As to whether the testimony of PWs.1 and 3 liable to

be believed though PW.2 did not support the case is a matter to be

discussed hereinafter. So the contention of the petitioner that

Ex.P-11 did not disclose that PW.2 was secured as a mediator and

evidence of PW.3 did not disclose the same is not tenable.

23. PW.2 exhibited hostility to the case of the prosecution. The

contention of the petitioner is that PW.1 obtained the signature of

PW.2 as he was a Government employee and as he was under his

control. In my considered view, PW.2 was not under the control of

PW.1. PW.2 was Talayari of the village, on whom PW.1 has no

control. In fact, PW.2 has no necessity to simply sign on Ex.P-11

and other documents at the request of PW.1. PW.2 admitted that

he reached the shop of the accused and sat outside. Having

AVRB,J Crl.R.C. No.1106/2008

considered the answers spoken by him and the outcome of cross-

examination of PW.2, it is quite improbable to assume that PW.2,

without witnessing anything signed Ex.P-11. So, simple because

PW.2 turned hostile, the evidence of PWs.1 and 3 cannot be

thrown out. If the evidence is convincing, complainant case can be

believed. As seen from the evidence of PW.3, he corroborated the

evidence of PW.1. PW.3 was the Office Assistant-cum-Typist. So,

he testified the fact that he accompanied PW.1 along with PW.2

and PW.1 lifted sample of sago and forwarded the same to the

Chemical Analyst etc.,

24. Admittedly, it is a case where the accused made a request

before the Court below to send his sample for chemical analysis,

which was not accepted. Here, it is born out from the record that,

according to Section 13(2) of the Food Adulteration Act, limitation

period is 10 days from the date of receipt of a report from

complainant to file an application seeking to send the sample to

the Central Food Laboratory. It appears that from the judgment of

the appellate Court that he moved the learned Magistrate to

forward his sample beyond the period of limitation and it was

dismissed on the ground of delay. So, it cannot be held that

accused was deprived of an opportunity to negative the Public

AVRB,J Crl.R.C. No.1106/2008

Analyst opinion. Even before the learned Additional Sessions

Judge, the petitioner herein cited three decisions to contend that

the time stipulated of 10 days to file an application is only

directory in nature. This Court would like to make it clear that

when the Court below dismissed the application of the accused on

the ground of limitation, the remedies were elsewhere to challenge

the legality of the said order, which was not done. Hence, at the

stage of Appeal, his contention was not found to be tenable. Under

the circumstances, the observation of the learned Additional

Sessions Judge in this regard is tenable. The accused did not

challenge the so called order passed by the learned Magistrate

when his application under Section 13(2) of the Food Adulteration

Act was dismissed. Now, on that ground the appellant cannot

contend that the judgment of the appellate Court is erroneous.

25. Turning to the evidence of PW.4, admittedly, she did not

depose that the food article is injurious to health. Her evidence is

categorical that though she did not conduct any chemical analysis

test she performed only microscopical test. Her evidence in cross-

examination is quietly convincing. She had clarified that there is

no question of arising of fluorescence by contact and it must have

been grown at the time of manufacture. So, it is the accused who

AVRB,J Crl.R.C. No.1106/2008

elicited adverse answers to him in cross-examination of PW.4.

According to her, the fluorescence count is of 10% and on the

globules they should be absent as per the standard prescribed.

26. Having considered above, this Court is of the considered

view that the evidence of PW.4 is fully convincing. The contention

of the accused before PW.1 that there was presence of fluorescence

because he did not follow the proper sampling was negatived by

virtue of the evidence of PW.4 in her cross-examination.

27. The accused sought to support his contention before the

learned Additional Sessions Judge by relying upon the decision of

the Hon'ble Supreme Court in Jagdish Chandra v. State of

Uttar Pradesh1, wherein the description of the sample taken by

the Food Inspector is in dispute. Hence, it was held by the Hon'ble

Supreme Court that it was necessary to conduct chemical analysis

test including treatment of the ash in the sample with

hydrochloric acid. The finding of the learned Additional Sessions

Judge that the above said decision is not applicable to the present

case on hand is convincing.

1 1982 (SC) Crl. 221

AVRB,J Crl.R.C. No.1106/2008

28. He also relied upon another decision of this Court in

Kantheti Bhogeswara Rao v. State of A.P2 wherein two different

opinions were given when the articles were forwarded to the State

Laboratory and Central Laboratory and then this Court pointed

out that analysts did not mention in their reports that the food

article is injurious to health and unfit for human consumption.

The learned Additional Sessions Judge distinguished the same for

giving finding that as per the standards prescribed under the PFA

Rules, sago shall not contain any other colouring matter, which is

prohibited under Rule 23 of the PFA Rules. The findings of the

learned Additional Sessions Judge in this regard are convincing.

The accused also canvassed before the learned Additional Sessions

Judge that there was delay in furnishing the public analyst

opinion which was not found favour by the learned Additional

Sessions Judge. He distinguished the facts in M/s. Ruchi

Infrastructure Limited v. State of AP3, where there was delay of

more than one and half years in producing the sample.

29. So, the contention of the revision petitioner that the public

analyst opinion is vague is not tenable. Admittedly, under Rule

A.03.02 of Appendix-B shows that 'sago' shall mean small hard

2 2003 (2) ALD (Crl.) 41 3 2008 (1) ALT (Crl.) 123

AVRB,J Crl.R.C. No.1106/2008

globules or pearls made from either the starch of the sago palm or

the tubers of Tapioca (Menihot Utilissima) and shall be free from

any extraneous matter including natural colours. So, by virtue of

the above, the petitioner cannot contend that there is no opinion

that it is injurious to health.

30. A look at the evidence of PW.1 in view of defence of the

accused before him in cross-examination shows that the evidence

of PW.1 remained unchallenged and there are no circumstances to

disbelieve his evidence. PW.2 has no necessity to just to visit the

shop of the accused and sit outside. So, purposefully he did not

support the case of the complainant. However, PW.3 supported the

evidence of PW.1. PW.3 was not a technical person and it is

sufficient to see that evidence of PW.1 on material aspects has

corroboration from the evidence of PW.3. Even PW.3 was not

supposed to speak about the sampling procedure spoken by PW.1

in detail. So, PW.3 deposed as regards the material facts such as

lifting of samples by paying the sale price, separating the samples

into three parts and packing with seals.

31. The accused did not dispute the signatures on exhibits that

are marked by the complainant. Even it is not the defence of the

accused that Food Inspector did not visit the shop and did not lift

AVRB,J Crl.R.C. No.1106/2008

the samples. Under the above circumstances, I am of the

considered view that the learned Magistrate as well as the learned

Additional Sessions Judge rightly appreciated the evidence on

record.

32. In the light of the above, in my considered view the

judgment, dated 24.07.2008, passed in Criminal Appeal No.126 of

2003 by the learned I Additional District and Sessions Judge,

Vizianagaram cannot be said to be erroneous as it does not suffer

with any illegality, irregularity and impropriety and absolutely

there are no grounds to interfere with the same.

33. In the result, the Criminal Revision Case is dismissed.

34. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the order of this Court along with the

lower Court record, if any, to the Court below on or before

12.12.2022 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

petitioner in C.C. No.47 of 2002, dated 08.09.2003, and report

compliance to this Court. A copy of this order be placed before the

Registrar (Judicial), forthwith, for giving necessary instructions to

the concerned Officers in the Registry.

AVRB,J Crl.R.C. No.1106/2008

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date :06.12.2022 DSH