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2022 DIGILAW 36 (TS)

Food Inspector v. Digidam Krishna Murthy

2022-01-21

G.RADHA RANI

body2022
JUDGMENT : This appeal is preferred by the Food Inspector, represented by the Public Prosecutor, aggrieved by the judgment dated 17.05.2010 in CC No.844 of 2008 by the Additional Judicial Magistrate of First Class, Jangaon acquitting the respondent-accused for the offence under Section 16 (1) (a) (i) & (ii) of the Prevention of Food Adulteration Act (in short ‘PFA Act’). 2. The case of the appellant was that the Food Inspector, Division III, Warangal District inspected the shop of the respondent-accused, by name, M/s.Dindigam Krishna Murthy Rice and Kirana Merchant, D.No.3-2-82, Old Beet Bazar, Jangaon, Warangal District on 11.09.2003 at 3.30 PM and collected samples of Toordal from a open gunny bag of about 40 kgs., on suspicion that it might be containing added colour. After purchasing the same, drawn three samples under the cover of panchanama and sent one part of the sealed sample jar to the Public Analyst, State Food Laboratory, Hyderabad on 12.09.2003 under intimation to Local Health Authority, Zone-V, Warangal and deposited the remaining two samples before the Assistant Food Controller and Local Health Authority, Zone-V, Warangal for safe custody. The Public Analyst sent his report dated 06.10.2003 opining that the sample contained synthetic colour Tartazine and was therefore, adulterated. The Assistant Food Controller received the said report on 16.10.2003 and forwarded the same to the complainant. The complainant sent a report to the State Food (Health) Authority for sanction and the State Food Health Authority accorded written consent vide order dated 04.10.2004 under Section 20(1) of the PFA Act for launching prosecution against the respondent-accused for sale of adulterated toor dal. The complainant filed the complaint before the Judicial Magistrate of First Class at Jangaon which was taken on file for the offence under Section 2 (ia)(j) and 7(i)&(v) read with Section 16(1)(a)(i)&(ii) of the PFA Act against the respondent-accused on 07.05.2005 and numbered the same as CC No.249 of 2005. The accused pleaded not guilty and claimed to be tried. The case was subsequently transferred to the Court of Additional Judicial Magistrate of First Class and numbered as CC No.844 of 2008. The prosecution got examined PWs.1 to 3 and got marked Exs. P1 to P25. No defence evidence was adduced by the respondent-accused. On considering the evidence on record, the trial Court acquitted the accused for the above offences. The case was subsequently transferred to the Court of Additional Judicial Magistrate of First Class and numbered as CC No.844 of 2008. The prosecution got examined PWs.1 to 3 and got marked Exs. P1 to P25. No defence evidence was adduced by the respondent-accused. On considering the evidence on record, the trial Court acquitted the accused for the above offences. Aggrieved by the same, the State preferred this appeal contending that the learned Magistrate ought to have seen that the ingredients of Section 16 (1) (a) (i) & (ii) for contravention of Section 2(ia)(j) and Section 7(i) & (v) of PFA Act read with Rules 23 and 29 were made out by the prosecution against the accused. The learned Magistrate ought to have seen that the delay in filing the complaint was not fatal to the case of the prosecution and it would not cause any prejudice to the accused. The learned Magistrate had not considered the evidence of the prosecution witnesses in correct prospective and prayed to allow the appeal. 3. Heard the learned counsel for the appellant and the learned counsel for the respondent. 4. Now the point for consideration is: Whether there are any grounds to set aside the acquittal recorded by the trial Court against the respondent-accused? 5. PW.1 was the Food Inspector who lifted the sample. PW.2 was the Food Inspector who obtained consent order and filed the complaint. PW.3 was the panch witness, who turned hostile and not supported the prosecution case. The defence taken by the respondentaccused was that PW.1 had no authority to lift the sample in the Jangaon Mandal area and it was PW.2 who was authorised to lift the samples in the said area. PW.3 was the panch witness, who turned hostile and not supported the prosecution case. The defence taken by the respondentaccused was that PW.1 had no authority to lift the sample in the Jangaon Mandal area and it was PW.2 who was authorised to lift the samples in the said area. The trial Court, after considering the document marked under Ex.P.18, letter issued by the Director of Food (Health) Authority permitting PW.1 to implement the Act in local body of Jangaon Nagar Panchayat vide order dated 13.07.2004 and no document was filed by the prosecution to show that an authorization was given to PW.1 to lift the samples from the shops more particularly on 11.09.2003 and considering the judgment of the Allahabad High Court in Nazar v. State of U.P. [2000 Cri.L.J. 161], relied upon by the learned counsel for the respondent-accused, wherein it was held that when the Food Inspector who was not authorized to take sample beyond the area assigned to him had collected the samples, the entire trial land proceedings would be vitiated, rightly opined that there was no authority for PW.1 on 11.09.2003 to act as Food Inspector in Jangaon Municipal area and the collection of samples by PW.1 was without any jurisdiction. 6. The respondent-accused had taken another defence that after receipt of report from the Central Food Laboratory, accusation was changed and the Local Health Authority did not challenge the report of the Central Food Laboratory. The trial Court, after discussing the evidence of PW.1 and the opinion of the Public Analyst and the opinion of the Director of Central Food Laboratory observed that the said reports were not contradictory to each other and the report of the Central Food Laboratory that the sample did not confirm to the standards of split pulse (Dal) Arhar as per Rules was nothing but adulteration and even in the report of Central Food Laboratory they detected synthetic tartrazine in the sample during analysis and it would squarely come under Section 2(ia)(j) of the PFA Act which would come under Section 16(i)(a)(ii) of the PFA Act, the charge framed against the accused and found that the said defence was not tenable. 7. 7. Another defence taken by the accused was that there was a delay of (15) days in depositing the sample by the Local Health Authority and that the said sample was sent to Central Food Laboratory by the Court on 12.09.2006 and there was no compliance of sub-section (2-A) of Section 13 of the PFA Act. The trial Court observed that the provisions under Section 13 (2-A) of the PFA Act was mandatory in nature. The report of the Public Analyst dated 06.10.2003 was received by the Local Health Authority, Zone-V on 16.10.2003 and was forwarded to the complainant. A copy of the report was sent to the accused on 14.05.2005 and the accused made an application to the Court on 12.07.2005 to call for the sample from the Local Health Authority to send it for second opinion to Central Food Laboratory and the local Health Authority deposited the second sample in the Court on 23.08.2005 with a delay of 10 days as against the mandatory period as prescribed in sub-Section (2-A) of Section 13 of the Act. The complaint was filed on 31.12.2004. Thus, the complaint was filed almost 15 months later to the date of sample. As per sub section (2-A) of Section 13 of the PFA Act, the Local Health Authority shall deposit the second sample within a period of five days from the date of requisition. But, it was deposited with a delay of ten days. The Court directed the Local Health Authority to deposit the second sample on 09.08.2005 whereas the Local Health Authority deposited the second sample on 23.08.2005. But, it was deposited with a delay of ten days. The Court directed the Local Health Authority to deposit the second sample on 09.08.2005 whereas the Local Health Authority deposited the second sample on 23.08.2005. The Court below observed that thus there was a delay of ten days as against the mandatory period as prescribed in sub section (2-A) of Section 13 of the PFA Act and as much time was elapsed since the date of lifting of the sample by PW.1 till the date of analysis by the Central Food Laboratory on 07.10.2006 and observed that there was every possibility of contents (toor dal) getting decomposed and deteriorated in quality owing to passage of time rendering the sample unfit for analysis and placed reliance on the judgment of this Court in Ruchi Infrastructure Limited v. Food Inspector, Division-II, Nalgonda District, Andhra Pradesh (2008 (2) ALD (Crl.) 711 (AP)], wherein it was held that Section 11(4) of the Act mandated that an article of food seized under sub-section 4 of Section 10 of the Act and any adulterant seized under Section 6 of the Section 10 of the Act 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 and there was a clear violation of the mandatory stipulation contained under sub section 4 of Section 11 of the Act regarding the production of the sample before the Court and acquitted the accused. The trial Court observed that there was a delay of approximately 14 months in filing the complaint, as such prejudice was caused to the accused. 8. Thus, the trial Court by a reasoned order by observing the mandatory provisions under the Act and considering the delay in filing the complaint and in sending the second sample to the Central Food Laboratory and the precedents on this aspect rightly acquitted the accused. Hence, I do not find any merits in the contention of the State, represented by the Food Inspector, that the delay in filing the complaint was not fatal to the case of the prosecution. The trial Court had considered the evidence of the witnesses in proper perspective and had given a reasoned order, which requires no interference by this Court. 9. Hence, the Criminal Appeal is dismissed. Miscellaneous petitions, pending if any, shall stand closed.