Telangana High Court
The State Of A.P., Rep By Pp., vs Palakonda Rajender Goud And ... on 28 September, 2021
Bench: P Naveen Rao
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 ?
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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
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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
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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
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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
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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
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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.
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.
Section 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.
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.
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;
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--
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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.
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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
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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.
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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
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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
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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
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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.
2007 (4) SCC 415
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(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
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HONOURABLE SRI JUSTICE P.NAVEEN RAO
CRIMINAL APPEAL NO.286 OF 2010
Date: 28.09.2021
kkm
