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2003 DIGILAW 884 (AP)

Kamalapuram Narayana Setty v. State Of A. P.

2003-07-16

S.R.K.PRASAD

body2003
S. R. K. PRASAD, J. ( 1 ) THIS Criminal Revision Case is directed against the judgment in Criminal Appeal no. 151 of 2000 dated 14-6-2001 on the file of the II Additional Sessions Judge, Kurnool confirming the conviction and sentence awarded by the Judicial Magistrate of First class at Kurnool in CC No. 385 of 1998 for the offence under Section 16 (1) (a) (i), 7 (i) and (v) and 2 (ia) (m) of the Prevention of Food adulteration Act ( the Act for brevity) read with Rules 29 and of Prevention of Food adulteration Rules ( the Rules for brevity ). ( 2 ) THE facts of the case are that on 30-5-1998, at about 11. 00 a. m. the Gazetted food Inspector visited the shop of the accused who being the revision petitioner herein situated at D. No. 2-75 of Amadaguntla village, Kodumur Mandal, Kurnool District and purchased 750 grams of Red Gram Dal for Rs. 22. 00 and obtained a cash receipt. After serving Form-VI notice on the petitioner informing that the said Red Gram Dal will be sent to Public Analyst, Hyderabad for analysis, he had divided the sample and kept them in plastic tins separately and has sent one sample to the Public Analyst, Local (Health) Authority, Hyderabad. After receiving the report from the Public Analyst stating that the food sample contained added synthetic food colour and that the same does not conform to the standards of damaged grains, he presented the complaint before the court after obtaining sanction. A notice under Section 13 (2) of the Act was also served on the accused. The Revision Petitioner has availed the opportunity of sending the sample to the Central Food Laboratory, ghaziabad and a report has been received from the Central Food Laboratory (Ex. P-2) stating that:"the sample does not conform to the standard of Red Gram Dal laid down under item No. A. 180609 of Appendix b of the PFA Rules, 1955 as the devilled grains and damaged grains are more than the maximum prescribed limit and therefore the sample is adulterated. P-2) stating that:"the sample does not conform to the standard of Red Gram Dal laid down under item No. A. 180609 of Appendix b of the PFA Rules, 1955 as the devilled grains and damaged grains are more than the maximum prescribed limit and therefore the sample is adulterated. " ( 3 ) THEREAFTER, the trial was conducted and the accused was found guilty for the offence punishable under Section 16 (l) (a) (i), 7 (i) and (v) and 2 (ia) (m) of the Act read with Rule 29 and 23 of the Rules and accordingly he was sentenced to suffer Simple Imprisonment for six months and to pay a fine of rs. 1,000/- and in default to suffer Simple imprisonment for two months. Aggrieved by the same, the accused carried the matter in appeal being Criminal Appeal No. 151 of 2000 before the II Additional Sessions Judge, kurnool. The learned II Additional Sessions judge dismissed the appeal by judgment dated 14-6-2001 and confirmed the conviction and sentence awarded by the trial court. Thereupon, the accused has invoked the revisional jurisdiction of this court by way of this present Criminal Revision Case. ( 4 ) IN the case on hand, both the courts below gave concurrent findings of facts. Normally, this court will not interfere with the concurrent finding of facts given by both the courts below unless the same are shown to be perverse and there is no proper appraisal of evidence. ( 5 ) IT is mainly contended by the learned counsel for the petitioner that there were no proper seals put on to the containers and therefore there was leakage of moisture into it. It is also contended that taking samples in plastic tins or jars is not contemplated under rule 14 and 16 of the Rules. It is also contended that the contents of the Central food Laboratory report were not put to the accused during the examination under section 313 Cr. P. C. Therefore, his valuable right is lost and prejudice has been caused. In support of his contentions, he relied on the decision of the Supreme Court in State of west Bengal v. Mir Mohammed Omar ( 6 ) THE learned Prosecutor contends that taking of samples in plastic containers and not putting the contents of the Central Food laboratory to the accused during the examination under Section 313 Cr. In support of his contentions, he relied on the decision of the Supreme Court in State of west Bengal v. Mir Mohammed Omar ( 6 ) THE learned Prosecutor contends that taking of samples in plastic containers and not putting the contents of the Central Food laboratory to the accused during the examination under Section 313 Cr. P. C. does not cause prejudice to the accused. ( 7 ) ADVERTING to the same, Rules 14 and 16 of the Rules read as follows:" Manner of Sending Samples for analysis: samples of Food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. 16. Manner of packing and sealing the samples: All samples of food sent for analysis shall be packed, fastened and sealed in the following manner namely: (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit (B) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive. (C) A paper slip of the size that goes round completely from the bottom to top of the container bearing the signature and code and serial number of the local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression:provided that in case, the person from whom the sample has been taken refused to affix his signature or thumb impression, the signature or thumb impression of the witness shall be taken in the same manner. (D) The paper covered shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. " ( 8 ) IT is clear from Rule 14 of the that the samples have to be taken in clean dry bottles or jars or in other suitable containers. The only thing that has to be interpreted is whether the use of plastic tins is permitted under Rule 14 or not. ( 9 ) THE word other suitable container mentioned in Rule 14 covers any other container, which suits for taking a sample. There is no bar for usage of plastic tins. Hence I am of the considered view that taking samples in plastic containers is permissible under Rule 14 of the Rules and it cannot be said that it is in violation of Rule 14, the Food inspector took the samples and sent the same for analysis. Hence, I disagree with the contention canvassed by the revision petitioner in this regard. ( 10 ) COMING to the contention of improper sealing it can be seen that the sample taken is of Redgram Dal. Therefore, even assuming that there is improper sealing, the same cannot cause prejudice. Further, the contention about the non mentioning of dead insects at the time of taking the sample and later finding by the State Analyst as well as by the Analyst at Central Food Laboratory on the same point cannot lead to the conclusion that the sample analysed by central Food Laboratory is not correct. The act makes it clear that the report of the central Food Labortory is final and forms basis for prosecution also. It super cedes the state Analyst Report. ( 11 ) COMING to the aspect of not putting the contents of the report of the Central Food laboratory to the accused during the examination under Section 313 Cr. The act makes it clear that the report of the central Food Labortory is final and forms basis for prosecution also. It super cedes the state Analyst Report. ( 11 ) COMING to the aspect of not putting the contents of the report of the Central Food laboratory to the accused during the examination under Section 313 Cr. P. C, it is held by the Supreme Court in Kanhaiya Misar v. State of Bihar as follows:"the last circumstance which has been used against the appellant is that after the alleged occurrence he absconded from his house and surrendered in court only after about a month from the date of alleged occurrence. The only evidence on this circumstance is of the investigating Officer (P. W. 10) who has stated that during the course of investigation he received secret information to the effect that the appellant was seen fleeing away wearing only undergarments and in order to verify the same he left the police station along with the armed forces in search of the accused, went to the house of one mithlesh Jah (husband of appellant s sister) at village Murli where he was informed that chandra Mohan Mishra, father of the appellant had gone there is search of him and he having not found him there went to the place of other relatives for searching him. This witness has nowhere stated from whom he received the secret information inasmuch as such information cannot be made basis to prove this circumstance for being used against the appellant. The other portion of the evidence of this witness that he learnt at the place of appellant s brother- in-law Mithlesh Jha, that his father, chandra Mohan Mishra had come to the house of Mithlesh Jha and gone to the places of other relatives in search of the appellant could have been proved by examining Mithlesh Jha and Chandra mohan Mishra who could have been the best persons to prove this fact, but, for the reasons best known to the prosecution, they have been withheld. It may be stated that the Investigating officer has nowhere stated that he ever visited the house of the appellant nor any other witness sated that the appellant was not present in his house after the occurrence. Thus; we find there is no credible material to prove this circumstance. It may be stated that the Investigating officer has nowhere stated that he ever visited the house of the appellant nor any other witness sated that the appellant was not present in his house after the occurrence. Thus; we find there is no credible material to prove this circumstance. In any view of the matter, this circumstance cannot be used against the appellant as from his statement recorded under Section 313 of the Code of Criminal Procedure, it would be amply clear that this circumstance was never put to him and consequently the same cannot be used. Reference in this connection may be made to a decision of this court in the case of Kehar Singh v. State (Delhi Administration) (1999) 3 SCC 609. " ( 12 ) AS per the principle laid down by the supreme Court in the above judgment if the contents of the Central Food Laboratory report are not put to the accused during the examination under Section 313 Cr. P. C. the same cannot be made use of. I have perused the entire examination under Section 313 cr. P. C. The lower court has put the State analyst report to the accused and not the central Food Laboratory Report. Thus it is clear that the same cannot be made use of in view of the principles laid down by the supreme Court in the aforesaid decision. When once the certificate issued by the central food Laboratory cannot be made use of, there is no material to show that the sample taken by the Food Inspector was adulterated since the State analyst report is deemed to have been superseded by Central food Laboratory report. In that view of the matter, I agree with the contention canvassed by the learned counsel for the revision petitioner on the aspect of not putting the contents of the Central Analyst report to the petitioner during the examination under section 313 Cr. P. C. This aspect has not been properly dealt with by both the courts below, which lead to miscarriage of justice. Hence, the conviction and sentence ordered by both the courts below are set aside. ( 13 ) THE Criminal Revision Case is accordingly allowed.