Hyderabad v. Dhanwda

THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1358 of 2009 JUDGMENT: This Criminal Appeal, filed by State, is directed against the judgment of acquittal dated 08.11.2005 in Calendar Case No. 199 of 2002 on the file of the Judicial Magistrate of First Class, Narayanpet, whereunder and whereby respondent/accused was found not guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954(for short, `the Act’) for contravention of Sections 2(1)(a) (m) and 7(i) of the Act.

The brief facts of the case for disposal of the present appeal, may be stated as follows: P.W.1, who is Food Inspector along with his Attender, inspected the shop of the accused on 30.6.2000 at about 2 pm and found loose oil kept for sale for human consumption. On suspicion that it was adulterated, he purchased 450 grams of oil from the accused, divided it into three equal parts, and after observing necessary procedure, one sample was forwarded for analysis to the Public Analyst, who after analysis, opined that the sample does not conform to the standard of iodine value and Belier’s test (turbidity temperature- Acetic acid method) and was therefore adulterated. After obtaining written consent from the competent authority, the complaint is lodged.

When the accused was examined under Section 251 Cr.P.C., he denied the accusation levelled against him and claimed to be tried.

To substantiate its case, the prosecution examined two witnesses Pws 1 and 2 and got marked 21 documents, Exs.P-1 to P-21. No oral or documentary evidence was adduced on behalf of the accused.

The trial Court, upon consideration of evidence on record, acquitted the accused mainly on the ground that there was a delay in filing the complaint and also the accused lost his valuable right to make a request to the concerned Magistrate to send the second sample to the Director of Central Food Laboratory. Challenging the same, the present appeal is preferred by the State.

Now, the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the offence punishable under Section 16(1)(a)(i) read with Sections 2(1)(a)(m) and 7(i) of the Act?.

Learned counsel representing the Public Prosecutor contended that the evidence of PW.1 is very clear that he purchased loose oil from the shop of the accused and that when the sample was sent to the analyst for analysis, he opined that the sample does not conform to the standards, and therefore, it was adulterated and hence, the complainant proved its case beyond all reasonable doubt.

There is a presumption under law that the accused is presumed to be innocent unless the contrary is proved. The said presumption is further strengthened by the order of acquittal. Normally this court, sitting in an appeal against the order of acquittal, would not ordinarily interfere with the judgment unless there exists substantial or compelling reasons. Some of them are:- (i) Perverse finding is given; (ii) Findings are not based upon evidence; (iii) Inadmissible evidence has been taken into consideration; (iv) Admissible evidence has been overlooked

The report of the public analyst would go to show that the sample does not conform to the standard of iodine value and Belier’s test (turbidity temperature- Acetic acid method), and therefore, it was adulterated. The sample was lifted on

30.6.2000, whereas the prosecution filed complaint on

24.7.2002. Thus, there is a delay of more than two years between the date of lifting the sample and sending notice under Section 13(2) of the Act, thereby depriving the right of the accused to make a request to the concerned Magistrate to send the second sample to the Central Food Laboratory. There cannot be any dispute that the report given by the Director of Central Food Laboratory supersedes the report of the Public Analyst. Because of the delay of more than two years in lodging the complaint, the second sample may not be fit for analysis by that time. As the valuable right conferred on the accused has been lost, no useful purpose would be served even if the accused makes a request to send the second sample the Director of Central Food Laboratory. Considering these aspects, the trial Court rightly acquitted the accused and there are no grounds to interfere with the findings of the trial Court.

The appeal is devoid of merit and is, accordingly, dismissed at the stage of admission confirming the judgment dated 8.11.2005 passed in C.C.No.199 of 2002 on the file of Judicial Magistrate of First Class, Narayanpet, Mahabubnagar District. Dt. 26-10-2009 RAR _____________ K.C.BHANU, J. THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1358 OF 2009 Date: 26.10.2009