THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1625 of 2006 Date:22.01.2014 Between:
Thallam Subbaih . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1625 of 2006 JUDGMENET:
This revision is preferred against Judgement dated 20-02-2006 in Criminal Appeal No.170/2002 on the file of Sessions Judge, Nellore whereunder judgment dated 16-10-2002 in STC.No.33 of 2002 on the file of Judicial First Class Magistrate, Gudur was confirmed.
2. The brief facts leading to filing of this revision are as follows:-
On 31-05-1995, P.W.1-Food Inspector visited Kirana shop of the revision petitioner around 5:00 P.M along with his Attender and a mediator by name Ch. Pavan Kumar and noticed display of 30 Polythene packets of Red Gram Dall, each weighing 250 grams in the shop of the revision petitioner meant for sale. On suspicion, P.W.1 revealed his identity and expressed his intention to lift the sample for analysis. Accordingly, he purchased three packets of Red Gram Dall, weighing 250 grams each against cash receipt for Rs.15/- and served Form No.VI Notice on accused and obtained his acknowledgment. P.W.1 opened the three packets, mixed them and divided them into three equal parts by pouring them into three clean, dry & empty plastic jars and after affixing the statement label on the jars, collected them under a panchanama drafted before the mediators and the accused. On 01-06-1995, he forwarded one such sample together with Form No.VII Memo to the Public Analyst, State Food Laboratory, Hyderabad in a registered parcel and intimated the same to Local Health Authority, Nellore District. The other two sample parts along with copies of Form No.VII were handed over to the Local Health Authority on the same day i.e., 01-06- 1995 and the Public Analyst furnished his report dated 14-07- 1995 stating that the sample contains added “Synthetic Colour Tartrazine” and thereby food is adulterated and on receipt of necessary permission, P.W.1 filed complaint before the learned Magistrate. On these allegations, the trial Court took cognizance of the offence and after appearance of the accused, by following due procedure, conducted trial during which, three witnesses are examined and 17 documents are marked on behalf of prosecution. On behalf of accused, no witnesses are examined and no documents are marked. On a over all consideration of oral and documentary evidence, the learned trial Judge found the accused guilty for the offences charged against him and sentenced him to suffer six months imprisonment with a fine of Rs.1,000/-. Aggrieved by the conviction and sentence, accused preferred appeal to the Court of Sessions and the First Additional District and Sessions Judge, Nellore confirmed the conviction and sentence imposed by the trial Court. Now aggrieved by the judgments of Courts below, the present revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner contended that Section 13 (2) and Rule 9B of Prevention of Food Adulteration Act (for short ‘PFA Act’) and Food Adulteration Rules, 1955 (for short ‘PFA Rules’) are not followed by the Food Inspector and on that ground, accused is entitled for acquittal.
He further contended that the report of the analyst do not specify that the sample is injurious to health or unfit for human consumption as required under Section 2 (1a) (f) of PFA Act. He also contended that the Public Analyst has not followed Rules 22, 28 & 29 of PFA Rules. On the other hand, learned Public Prosecutor contended that Rules 28 & 29 are not applicable to the case on hand since Red Gram Dall is not among the commodities referred in Rule 29 for use of Tartrazine Synthetic. He further contended that Rule 22 is also not applicable since the total quantity i.e., required for Food Grains and Pluses under Rule 22, Whole and Split was 500 grams as on the date of offence and in this, P.W.1 has purchased 750 grams in three packets, therefore, no violation of Rule 22 of PFA Rules. With regard to compliance of Section 13 (2) and Rule 9B of PFA Act & Rules, learned Public Prosecutor submitted that the same may be considered, after verifying the record. With regard to non-mention of sample being injurious to health or unfit for human consumption in the analyst report, the learned Public Prosecutor submitted that it is not mandatory.
5. Now the point that would arise for my consideration is whether the Judgments of the Courts below are legal, proper and correct?
6. Point:- The fact that P.W.1 visited the shop of revision petitioner on 31-05-1995 along with a mediator and his Sanitary Attender is not in dispute. There is also not in dispute with regard to purchase of three packets of 250 grams each containing Red Gram Dall from the shop of revision petitioner for Rs.15/-. With regard to objection of use of Tartrazine Synthetic in the Red Gram Dall contemplated under Rules 28 & 29 of PFA Rules is concerned, it is clear in Rule 28, it is stated that Tartrazine Synthetic is a permissible Synthetic Colour to be used in food, which are categorised in Rule 29.
A reading of these two Rules, it is clear that Red Gram Dall is not among the categorised items under Rule 29. Therefore, the objection of the learned Public Prosecutor with regard to non-
compliance of Rules 28 & 29 by the Food Inspector is to be upheld and the contention of the learned counsel for the revision petitioner on this aspect cannot be accepted.
7. Coming to non-compliance of Rule 22 of PFA Rules as pointed out by the learned counsel for the petitioner, 500 grams in Whole and Split is the requirement as on the date of the offence and from the record, it is clear that P.W.1 purchased a total quantity of 750 grams, which means i.e., more than the quantity prescribed in Rule 22 as on the date of offence. Therefore, the objection of learned counsel for revision petitioner with regard to non-compliance of Rule 22 cannot be sustained.
8. The next contention of Advocate for revision petitioner is that there is no mention in the analyst report to the effect that the food item analysed by him is injurious to health or not fit for human consumption. To support of his argument he has drawn my attention to Section 2 (1a) (f) of PFA Act, which reads as follows:-
“2. Definitions In this Act unless the context otherwise requires,-
(ia) “adulterated” – an article of food shall be deemed to be adulterated-
(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect- infested or is otherwise unfit for human consumption;”
9. Section 2 of the Act deals with definitions and for the definition of adulterated under 2 (ia), there are as many as 13 circumstances and the Advocate for revision petitioner only relied on one among these 13 circumstances. According to Section 2 (ia) (j), if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amount of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability also the article has to be treated as adulterated. So the contention of the Advocate that the analyst report should invariably contain that the article is injurious to health or unfit for human consumption cannot be accepted because it is for the analyst to find out whether the sample falls in any of the 13 categories defined in Section 2 (ia) of PFA Act. Here the report of the analyst would disclose that the article is adulterated on account of use of Tartrazine Synthetic a prohibited synthetic to be used in the food items. Therefore, the objection of the Advocate for revision petitioner with regard to definition of adulterated cannot be accepted.
10. Now coming to non-compliance of Rule 9B read with Section 13 (2) of PFA Act and Rules, according to Section 13 (2), a notice has to be issued to the accused person enabling him to approach the Court with a request to send the second sample to Central Laboratory for analysis.
11. Section 13 (2) of PFA Act reads as follows:-
“13. Report of public analyst (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.”
12. Rule 9B of PFA Rules reads as follows:-
“9B. Local (Health) Authority to sent report to person concerned The Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under section 14A of the Act.”
13. According to Rule 9B, after institution of the prosecution, it is the duty of the Local Health Authority to forward a copy of the analyst report within ten days to the concerned Court. Admittedly in this case, the complaint is filed before the concerned Magistrate Court on 11-01-1996 and the notices are forwarded to the accused on 24-01-1996, which is beyond the period of ten days. Admittedly, on the face of material, the said Rule 9B is not complied by the Local Health Authority, which definitely caused prejudice to the accused. So the contention of Advocate for revision petitioner on this aspect is to be accepted.
14. In the result, revision is allowed by setting aside the conviction and sentence imposed by the trial Court and appellate Court against the revision petitioner for the offence under Section 16 (1) (a) (ii) of PFA Act and he is acquitted of the charges levelled against him. The fine amount if any paid shall be refunded.
15. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand disposed of.
JUSTICE S. RAVI KUMAR
Date:22.01.2014.
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