Andhra HC (Pre-Telangana)
R. Chandrakanth vs State Of Andhra Pradesh, Rep. By Public ... on 31 January, 2002
Equivalent citations: 2002(2)ALT(CRI)288
ORDER Gopala Krishna Tamada, J.
1. This revision is filed against the judgments of the courts below wherein the petitioner was convicted for the alleged offence punishable under sections 16(1)(a)(i), 7(ii) and 2(ix) (a) (e) of Prevention of Food Adulteration Act, 1954 (for short the Act) and ultimately was found guilty of the said offence and accordingly, sentenced to undergo Rigorous imprisonment for six months and pay a fine of Rs.1000/- , in default to undergo simple imprisonment for two months.
2. Admittedly, the Sanitary Inspector who was the complainant visited the shop of the petitioner on 11-11-1993 and on suspicion collected 3 sample bottles of oil in accordance with section 10 of the Act. Subsequently, one of the sample bottle was sent to the Public Analyst on 12-11-1993 for analysis and opinion. The Public Analyst opined that the sample oil was adulterated and submitted a report date 24-12-1993 which is marked as Ex.P-9. Pursuant to that in the month of August, on 26-8-1994, the Food Inspector filed a complaint before the Judicial First Class Magistrate, Nizamabad. Subsequently, on 2-9-1994 a notice as contemplated under Section 13 (2) of the Act was issued, for which the petitioner has not chosen to file any explanation requesting the Court to send the second sample to another analyst.
3. Heard learned counsel for petitioner and learned public prosecutor.
On perusal of the complaint and the documents marked on behalf of the complainant wherein it is alleged that the Food Inspector after dividing the oil into 3 equal parts and after following the procedure, sent one sample bottle on the next day i.e., on 12-11-1993 along with Form No.7 to the Public Analyst, Hyderabad. The remaining two parts of the sample bottles along with copies of memorandum were sent to the Director, Institute of Preventive Medicine, Hyderabad for keeping the same in safe custody. After analysis, the Public Analyst opined by his report dt 24-12-1993 that the oil was adulterated.
4. After receipt of the report, the Food Inspector filed a complaint before the Judicial First Class magistrate, Nizamabad on 26-8-1994 and thereafter issued a notice under Section 13(ii) of the Act on 2-9-1994 directing the petitioner to file an application before the Magistrate, if he so chooses.
In all the prosecution examined P.Ws 1,2 and 3 in support of its case and got Exs. B-1 to B-21 marked .
Learned counsel for the petitioner Mr. Raghuveera Reddy strenuously contended that the procedure adopted by the Food Inspector is totally contrary to the mandatory provisions of the Prevention of Food Adulteration Act, 1954 and as such the courts below ought not have convicted the petitioner. His main contention before this court is that according to Section 11 (4) of the Act, when once an article of food is 'seized', the complaint shall be filed before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report from the Public Analyst.According to him, the opinion of the Public Analyst is dated 24-12-1993 and it must have been received immediately thereafter but, admittedly, the complaint was filed before the Magistrate on 26-8-1994, which is contrary to the period mentioned in the said clause. Hence, the complaint is filed without following the procedure under the said provision. In support of his contention, he relied on a judgment of this court reported in Sri Bheema Oil Mills, Anantapur V. State of A.P., (1999 (1) ALD (Crl.) 42 AP). He also further submitted that there is abnormal delay in filing the complaint on account of which any amount of prejudice is caused to the petitioner.
Insofar as the first submission is concerned, I do not think, it is tenable under law.Section 10 (4) of the Act deals with the seizure and collecting sample. Here, it is necessary to extract Section 10 (4) of the Act:
"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. "
5. From the language of the above provision of law, it is clear that the Food Inspector may seize or may not seize. The seizure by the Food Inspector in my considered view is not mandatory but only directory.When once the article is 'seized', then only the question of invoking the provisions of Section 11 (4) would come into play. In the instant case, it is not the case of the complainant that the article of food i.e., oil, was seized by the Food Inspector.As per the allegations in the complaint, he only took sample of the oil. In the light of the above discussion, the judgment cited by the learned counsel has no application.
6. As contended by the learned counsel, there is another infirmity in the case of the prosecution that admittedly the report of the analyst is dated 24-12-1993 and the complaint of the Sanitary Inspector was filed on 26-8-1994, it is not known as to why the complainant has not chosen to file the complaint for a period of about 8 months i.e., from 24-12-1993 to 26-8-1994, which in my considered view caused any amount of prejudice to the petitioner. As early as in the year 1973, the Hon'ble Supreme Court in RESHAM SINGH Vs. STATE OF PUNJAB 1 and held as follows:
"The right is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that for his satisfaction and proper defence he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. Ina case where there is denial of this right on account of the deliberate conduct of the prosecution. We think that the vendor in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein".
7. The Prevention of Food Adulteration Act is made with an object to prevent the adulteration to the maximum extent possible and in that contest heavy penalties are imposed for the offences under the Act and the offenders are dealt with seriously but at the same time the courts also shall see that the interest of the accused are also safe guarded when once the prosecution has not explained the delay in not issuing the notice till 2-9-94.Admittedly, the petitioner has lost valuable right conferred under section 13(ii) of the Act. Of course, it is true that the petitioner has not chosen to give any reply to the notice dated 2-9-94 and request the court to send the other sample to another analyst, even if he has availed the opportunity. In view of the fact that the prosecution has not explained the delay, it is not necessary for this Court to go into that aspect.
8. In view of the above finding that the sample bottle was not sent to the Court within a period of 7 days as mandated under section 11 (iv) of the act and the unexplained delay caused prejudice to the petitioner herein. The petitioner herein is entitled to benefit of doubt and accordingly the revision petition is allowed. The conviction and sentence imposed by the Courts below are hereby set aside. The bail bonds furnished by the petitioner shall stands cancelled. The fine amount if any paid shall be refunded to the petitioner forthwith.