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Andhra High Court · body

2008 DIGILAW 624 (AP)

B. K. Rajamohan v. State of A. P.

2008-08-08

G.YETHIRAJULU

body2008
ORDER This Revision Case has been preferred by the Accused in S.T.C.No. 65 of 1999 on the file of the Judicial Magistrate of First Class, Madakasira. 2. The complaint was filed by the Food Inspector under Section 16(1)(a)(i), 7(v) and 2 (ia)(m) of the Prevention f Food Adulteration Act, 1954 (for short 'the Act'). On 18-12-1998 at about 4.00 p.m. P.W.1, the Food Inspector, visited the shop of the Accused in the presence of P.W.2. At the time of inspection, the Accused was present in transacting the business and the Food Inspector found 10 KGs of ground nut oil among other oils of food. On enquiry, the Accused informed that the said oil is kept for sale for human consumption. On observation of the can, he found that it did not contain label, trademark and the manufacturer particulars. P.W.1 purchased 450 grams of groundnut oil from the said can for the purpose of analysis on payment of cost and obtained a receipt. P.W.1 also served a notice in form No. VI on the Accused and obtained acknowledgment. The oil was divided into three shares and filled in empty cleaned bottles, caped and sealed. After following the formalities, P.W.1 drafted a panchanama on the spot in the presence of the Accused and mediators and read over the contents to the Accused. The Accused and P.W.2 attested the panchanama. P.W.2 also attested the served copy of form No. VI and cash receipt. On 19-02-1998, P.W.1 sent one sample bottle with the impression of the specimen seal to the Public Analyst, State Food Laboratory, Hyderabad. On receipt of the same, the Analyst analysed the sample and delivered the report to the Local (Health) Authority and the said authority received the report on 01-02-1999. After receipt of the said report and after obtaining sanction from the concerned authorities, the Food Inspector filed a complaint against the Accused. 3. After appearance of the Accused and on a petition filed by him, the trial court sent the second sample of the ground nut oil in question from the Local Authority to the Central Food Laboratory for analysis. 3. After appearance of the Accused and on a petition filed by him, the trial court sent the second sample of the ground nut oil in question from the Local Authority to the Central Food Laboratory for analysis. The Analyst Report of the Central Food Laboratory was also received wherein it was opined that the food sample does not conform to the standards of ground nut oil laid down under item No. A.17.03 of Appendix-B of the Prevention of Food Adulteration Rules, 1955, (for short 'the Rules') therefore, it is adulterated. The accused denied the commission of the offence and pleaded not guilty. 4. The prosecution, in order to prove the guilt of the Accused, examined P.Ws.1 and 2 and marked Exs.P-1 to P-17. No oral or documentary evidence was adduced on defence side. The trial Court, after considering the evidence on record, found the Accused guilty of the offences as indicated above, convicted him and sentenced to undergo simple imprisonment for six months and also to pay a fine of Rs. 800/- in default to suffer simple imprisonment for one month. Being aggrieved by the same, the Accused preferred Crl.A.No. 26 of 2002 before the Additional Sessions Judge, Hindupur and the learned Sessions Judge, after considering the material available on record and after hearing both parties, dismissed the Appeal by holding that there are no grounds to interfere with the judgment of the trial Court. Being aggrieved by the same, the Accused preferred Crl.A.No. 26 of 2002 before the Additional Sessions Judge, Hindupur and the learned Sessions Judge, after considering the material available on record and after hearing both parties, dismissed the Appeal by holding that there are no grounds to interfere with the judgment of the trial Court. Being aggrieved by the same, the Accused preferred the present Revision Case by contending that the oil is not meant for sale; that the Food Inspector failed to follow the mandatory procedure prescribed under the Act and Rules; that the lower Court failed to consider that the report of the Public Analyst has been superceded by the report of the Central Food Laboratory, which came to a different conclusion; that the prosecution of the petitioner basing on the public analyst report is totally without jurisdiction; that there was no independent witnesses to substantiate the charges leveled against the petitioner; that the sample was not analysed on the date of the report; that due to lapse of time and natural conditions, it might have been varied, that it is not a case of mixing foreign substance with the oil and it is only negligible variation in the standard for the reasons beyond the control of the petitioner, therefore, he requested to set aside the conviction and the sentence imposed by the trial Court and confirmed by the Appellate Court. 5. The learned counsel for the petitioner cited a decision of the Supreme Court in support of his contention in Nortal Mal v. State of Rajasthan 1995 Cri.L.J. 2661, wherein the Supreme Court, while considering Section 2(ia)(1) of the Act, Appendix B, Item A.05.05.01, held as follows: "The adulteration found in the instant case being marginal, the possibility of there being an error of judgment in analysis and the matter being very old, as mentioned at the outset, we think it would be unsafe to uphold the conviction of the appellant as was recorded by the High Court in reversal of that of the trial Court who had initially acquitted the appellant of the charge. In this view of the matter, we allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge." 6. In this view of the matter, we allow the appeal, set aside the conviction and sentence of the appellant and acquit him of the charge." 6. In the present case, there is sufficient evidence to show that the Food Inspector took the sample in the presence of P.W.2 by following the procedure prescribed under law, therefore, there is no procedural irregularity in taking the sample. The Analyst Report was also served on the accused at the earliest time and he had availed the opportunity of sending second sample to the Central Food Laboratory, therefore, no prejudice is caused to him. 7. The learned counsel for the petitioner submitted that the public analyst report discloses that the sample does not conform to the standards of butyro-refractometre reading iodine value and seller's cost (turbidity temperature-acetic acid method), therefore, it is adulterated. The value of the Bellier Test (BTT) was 34.5 C, whereas the permitted value is 39 C to 41 C. There was variation of about 4 C. The BTT according to the Central Food Laboratory is 41.4 C. The Central Food Laboratory opined that the sample does not conform to the standards of groundnut oil laid down in item No.A.17.03 in Appendix-B of the Rules. In that, the BTT is more than the maximum prescribed limit, the sample is, therefore, adulterated. 8. The standard of turbidity temperature acetic acid of the oil is 30 C to 41 C. When the sample was tested by the State Food Laboratory, on conducting Bellier Test (turbidity temperature Acetic Acid method), the temperature of the oil was found as 34.5 C. When the sample was tested by the Central Food Laboratory, the temperature was found as 41.8 C. The temperature in the report of the State Food Laboratory was 34.5 C, which is less than the minimum standard temperature, whereas the temperature in the report of the Central Food Laboratory was 41.8 C, which is 0.8 C more than the maximum standard temperature. It was not explained by the prosecution as to how there was no much variation in the result of the analysis when similar sample were tested by both the laboratories. Though both the laboratories conducted Bellier Test only, the result yielded differently. 9. It was not explained by the prosecution as to how there was no much variation in the result of the analysis when similar sample were tested by both the laboratories. Though both the laboratories conducted Bellier Test only, the result yielded differently. 9. The learned counsel for the petitioner submitted that excess temperature of 0.8 C might be due to exposure of the oil and it is not on account of mixing of any foreign material in the oil, therefore, he requested to give benefit of doubt to the Accused by taking into consideration that there is no consistency in the tests conducted by the State and Central Food Laboratories. 10. It is not the contention of the prosecution that the groundnut oil was mixed with any other oil. But, it was the contention that it is not up to the standard prescribed under the Rules. The standard incorporated in the schedule is the outcome of the laboratory test, therefore, the oil collected from the outside is likely to show some variation in the standard due to exposure to light and air. In the light of the above circumstances and in the light of the judgment of the Supreme Court cited above, I am inclined to give benefit of doubt to the petitioner. 11. In the result, the Criminal Revision Case is allowed. The conviction and the sentence imposed by the trial Court against the petitioner and confirmed by the Appellate Court are set aside. The Accused is acquitted for the offence under Sections 16(1)(a)(i), 7(v) and 2 (ia)(m) of the Act. The bail bonds of the petitioner shall stand cancelled and the fine amount, if any, paid shall be refunded to him.