Allowed

Siddiramulu Revuri, v. The State of A.P.

Telangana HC15 Dec 2014CRLRC/23/2008

Case brief

AI extract

What is this about?

In a criminal revision, the High Court quashed proceedings after formation that inordinate delay in producing the seized food sample and serving the analyst's report prejudiced the accused by denying his right to central reanalysis, violating mandatory statutory provisions.

What did the court decide?

Impugned judgments and convictions set aside; accused acquitted. Bail bonds cancelled. Fine ordered returned.

Siddiramulu Revuri, Vs The State of A.P. — Criminal Trial and Appeal | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

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Criminal Revision Case No.23 of 2008

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ORDER:

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This criminal revision case under Sections 397 and 401 of the Code of Criminal Procedure (`the Cr.P.C’, for brevity) by the petitioner/accused is directed against the judgment dated 08.01.2008 of the learned VI Additional, Sessions Judge {Judge, Fast Track Court} Nizambad at Kamareddy passed in Crl.A.No.73 of 2006 confirming the judgment dated 06.11.2006 of the learned Judicial Magistrate of First Class, Yellareddy in CC.No.56 of 2001.

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1. (a) The trial court by its judgment dated 06.11.2006 found the accused guilty of the offences punishable under Section 16(1)(a)(i) read with Section 7(i) (v) and 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and had convicted him of the said offences and sentenced him to undergo simple imprisonment for a period of six months and pay a fine of Rs.1,000/- and undergo simple imprisonment for one month in default of payment of such fine.

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2. The case of the prosecution, in brief, is this: - “On the complaint of the Food Inspector, Division-II, Nizamabad, the calendar case was taken on file against the accused who is the owner of a Kirana shop/provision store at Yellareddy. On 01.08.2000 at about 12:45 PM, PW1 the then Food Inspector, Division II, Nizamabad visited the shop of the accused along with PW3, the clerk-cum-typist under him. On inspection of the shop of the accused, PW1 having found certain quantity of groundnut oil in a steel drum had suspected that it is adulterated one. Therefore, with an intention to lift samples of groundnut oil, PW1 had requested PW2 who was present in the said shop as a customer of the accused to act as a mediator. PW1 purchased 450 grams of groundnut oil from the stock available in the shop of the accused for a sum of Rs.22/- under exhibit P1 cash receipt and had then served a notice as required under exhibit P3 and had thereafter divided the purchased quantity

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of groundnut oil into three portions of 150 grams each and seized the same. After completion of the procedure of lifting of the sample he had dispatched one sample to the public analyst of the State Food Laboratory, Nacharam and had sent the remaining two samples to the Director, local health authority. On receipt of exhibit P14-report from the public analyst stating that the sample does not conform to the standards of Bellier’s test and that it is adulterated one, PW1 had submitted a detailed report to the Director, IPM, Food health Authority, for necessary sanction. On receipt of sanction orders under exhibit P15-complaint was filed before the trial court on 05.10.2001.”

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2. (a) Before the trial court, PWs1 to 3 were examined and exhibits P1 to P33 were marked. No evidence was adduced on the side of the defence. On merits, the trial court had convicted and sentenced the accused and the said conviction and sentence was confirmed by the court below in all respects. Therefore, the accused is before this court.

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3. I have heard the submissions of the learned counsel for the petitioner/accused and the learned Additional Public Prosecutor. I have perused the material record.

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4. Now the points for determination are: Whether the prosecution proved the guilt of the accused beyond reasonable doubt for the offence punishable under Section 16(1)(a)(i) read with Section 7(i) and (v) and 2(ia) (m) of the Prevention of Food Adulteration Act?

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Whether the judgment impugned confirming the conviction and sentence of the petitioner/accused of the said offences is unsustainable under facts and in law? And, if so, whether the impugned judgment is liable to be set aside?

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5. POINTS:

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5. (a) The facts, which are necessary for consideration and the facts, which lead to the filing of the present revision case, are already stated supra, in detail. At the time of hearing, the learned counsel for the accused had

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contended as follows: ‘PW1, the then Food Inspector, is not having jurisdiction over the place where the shop of the accused is situate and that he is not competent either to make an inspection or lift the sample and file the prosecution against the accused. There was an abnormal delay of more than 15 months in sending the notice under Section 13(2) of the Act to the accused. The said provision of law is intended to give an opportunity to the accused to send the second sample to the central food laboratory for re analysis. In view of the inordinate delay in sending the notice, the valuable right to seek permission of the court to send the sample for reanalysis to a central laboratory was denied to the accused. Section 11(4) of the Act mandates that the article of food seized shall be produced before the Magistrate as soon as possible and in any case not later than seven days after receipt of the report of the public analyst, but, the said statutory mandate was not complied with and the sample was placed before the court along with complaint and thus there has been a clear violation of the mandatory stipulation contained in Section 11(4) of the Act regarding the production of the sample before the court. The ingredients of the penal provisions of law are not attracted to the case on hand. The court below erred in placing reliance on the testimonies of PWs1 to 3, which are unreliable. There is no compliance of rule 22 of the Rules under the Act.’

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5. (b) On the other hand, the learned Additional Public Prosecutor would submit that the evidence on record as concurrently found by the courts below sufficiently established that PW1 had got jurisdiction to deal with the matter and that there is no violation of Section 11(4) or Section 13(2) of the Act and that PW2 is a customer and an independent witness and that he was admittedly present in the shop of the accused at the time of inspection and that in his presence the sample was lifted and that therefore, the evidence of Pws1 and 3 is well corroborated by the evidence of an independent witness and that the evidence brought on record is sufficient to base a conviction and that therefore, there is no merit in the contentions of the accused. He had also placed reliance on a Division Bench decision of this court in Handi Instant Foods, Chennai v. State of AP^[1] in support of the contention that

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unless prejudice is shown to have been caused to the accused because of the delay, the accused is not entitled to plead for acquittal.

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6. I have bestowed my attention to the facts and the submissions and I have given earnest consideration.

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7. In the case on hand, the chronology of events would lay bare that there was inordinate delay not only in the matter of issuance of the statutory notice but also in launching the prosecution against the petitioner. It is not disputed that the sample of the food article/oil was collected from the shop of the accused on 01.08.2000 and it was sent to the Public Analyst on the next day, i.e., 02.08.2000. The report of the Public Analyst dated 11.09.2000 was received by the Food Inspector on 25.09.2000 to the effect that the sample does not conform to the standard of Bellier’s test and that therefore, the sample was adulterated. The permission for prosecuting was accorded on 04.08.2001. Thereafter, the complaint was filed on 05.10.2001. Section 11(4) of the Act mandates that an article of food seized under sub-section (4) of Section 10 and any adulterant seized under subsection (6) of Section 10 shall 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. However, the seized sample, admittedly, was not produced before the Court within seven days, as required under sub-section (4) of Section 11 but placed before the court when the complaint was filed. Thus, there has been a clear violation of the mandatory stipulation contained in Section 11(4) of the Act regarding the production of the remaining samples before the court. In the case on hand, the sample was placed before the court about 14 months after it was taken and almost after 13 months from the date of receipt of the report of the Public Analyst. In fact, the material record shows that the Public Analyst had furnished his report on 11.09.2000 under exhibit P14. The inordinate delay in producing the sample before the court from the date of taking the sample and also from the date of receipt of the report of the Public Analyst would certainly cause prejudice to the accused and such prejudice is naturally detrimental to the case of the accused and inasmuch as there is every likelihood of the contents of the sample getting degenerated or

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decomposed. No explanation is forthcoming for the abnormal delay in production of the sample before the court.

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8. Now coming to the aspect of delay, in the case of Handi Instant Foods (1 supra) relied upon by the learned Additional Public Prosecutor, the question that was referred to the Division Bench was – ‘whether the prosecution under the Prevention of Food Adulteration Act can be quashed merely on the ground of delay without there being any prejudice to the accused?’ The Division Bench having referred to the ratios in various precedents had held as follows: -

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‘It is clear that Section 13(2) of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of a copy of the report of the Public Analyst to get the samples of food analysed in the central Food Laboratory and in case the sample is found by the Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. That would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case, even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay.”

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A reading of the Division Bench decision of this court would show that delay is per se not fatal to the prosecution case in cases where the sample continues to remain fit for analysis in spite of the delay and when no prejudice is caused to the accused. In the case on hand, the packing label cautions that the content of the packet, i.e., the food article, which is milk, is best for use before 180 days from the date of its manufacture. Section 13(2) of the Act confers a valuable right on the accused. Under the said provision the accused can make an application to the Court, within a period of 10 days from the receipt of a copy of the report of the Public Analyst by them, to get the samples of food analysed in the central Food Laboratory. And, in case the sample is found by the Central Food Laboratory unfit for analysis due to decomposition or degeneration by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right provided under the said provision would stand denied. That would constitute prejudice to the accused entitling him to acquittal. Therefore, in the facts and circumstances of the case, it cannot be said that no prejudice has been

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caused to the petitioners-A2 and A3 and therefore, the ratio in the Division Bench judgment of this Court is not helpful to the respondent-State. Thus, in the well considered view of the Court, the accused is, therefore, deprived of his valuable right under Section 13(2) of the Act to seek permission to send the sample for second analysis to the Central Food Laboratory. On this ground alone, the accused is entitled to an acquittal. The view of this court finds support from the decision in Ruchi Infrastructure Ltd., Mumbai v. Food Inspector, Nalgonda District .^[2]

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9. In Girishbhai Dahyabhai Shah v. C.C.Jani and anothe r^[3] of the Hon’ble Supreme Court, the facts and ratio are as under: ‘A sample of curd was collected on 08.04.1988 and thereafter, there was a delay of 15 months in serving the public analyst’s report on the first sample on the accused and that delay lead to the deterioration of the second sample and the accused was prevented from applying for analysis of the second sample before 17.07.1989, i.e., till 15 months after the sample has been colleted and that by that time, the second sample of curd had deteriorated and was not fit for being analyzed.’ In the light of the above facts, the Hon’ble Supreme Court while setting aside the judgment of the High Court had quashed the proceedings against the accused.

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10. In view of the principle laid down in the above decision and in view of the fact that there has been inordinate delay in filing the complaint and thereby, deprivation of valuable right conferred on the accused under Section 13(2) of the Act and because of the violation of the mandatory requirement under Section 11(4) of the Act, this Court holds that no case as required under facts and in law is made out by the prosecution against the petitioner/accused to record a finding of guilt and for convicting him under Section 16(1)(a)(i) read with Section 7(i) and (v) and 2(ia)(m) of the Prevention of Food Adulteration Act. The points are accordingly answered in favour of the petitioner/accused.

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11. In view of the finding recorded supra that the accused is entitled to

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an acquittal, there is no need to go into the other aspect regarding the jurisdiction of PW1 to make inspection of the shop of the accused and launch prosecution against him.

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12. In the result, the Criminal Revision Case is allowed and the impugned judgment and the judgment of the trial Court holding the petitioner/accused guilty of the offence punishable under Section 16(1)(a)(i) read with Section 7(i) and (v) and 2(ia)(m) of the Prevention of Food Adulteration Act and further recording a conviction and imposing sentences of imprisonment and fine are set aside. The bail bonds of the petitioner/Accused shall stand cancelled. The fine amount, if any, paid by the petitioner/accused is ordered to be returned after the time for preferring the further appeal/revision is over.

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Miscellaneous petitions pending, if any, in this Crl.RC shall stand closed.

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__________________________ JUSTICE M. SEETHARAMA MURTI 15^th December, 2014 Vjl

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[1] 2007(1) ALD (Crl.) 316 (AP)

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[2] 2008(2) ALD (Crl) 711 (AP)

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[3] (2009) 15 Supreme Court Cases 64

Siddiramulu Revuri, v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Siddiramulu Revuri, v. The State of A.P.

Case brief

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