JUDGMENT
P.S. Narayana, J.
1. The Food Inspector, Karimnagar had filed the present Criminal Appeal as against the order of acquittal recorded in C. C. No. 446 of 1996 on the file of Judicial Magistrate of First Class, Jagtial.
2. Learned Additional Public Prosecutor would contend that the delay in launching the prosecution had been made a ground of acquittal, which cannot be sustained. Learned Additional Public Prosecutor also had pointed out to Rules 9, 9-A and 9-B of the Prevention of Food Adulteration Rules, 1955 (hereinafter for short referred to as ‘the Rules’ for the purpose of convenience).
3. The Food Inspector, Karimnagar had charged the respondent/accused under Sections 16(1)(a)(i), 7(1) and 2(i-a)(m) of Prevention of Food Adulteration Act, 1954 (hereinafter for short referred to as ‘the Act’ for the purpose of convenience) on the ground of Alasandalu for human consumption put for sale being adulterated.
4. It is the case of the prosecution that on 23-3-1995 at about 11.30 a.m., the Food Inspector inspected M/s. Mahalaxmi Kirana and General Shop at door No. 10-14, Main Bazar, Raikal village of Karimnagar District along with his attender, P.W.2 who was available, was called to act as a witness. It was also stated that the accused was present and transacting business at the said shop. It was further stated in the complaint as follows :
The said Food Inspector in the presence of the accused and the witnesses inspected the articles kept in the shop for sale for human consumption and found 20 kgs. of Alasandalu. When demanded the accused to sell 7.50 grams, the accused agreed for the same. L. Narayana, Food Inspector purchased 750 grams Alasandalu from the accused for Rs. 7.50 paise and paid the costs and obtained cash receipt in the presence of the witnesses. Food Inspector served notice in form No. VI on the accused informing that the purchased Alasandalu would be sent to Public Analyst for the purpose of analysis and obtained acknowledgment in the presence of witnesses. The purchased Alasandalu was divided into three equal parts and placed each part in empty dry and clean plastic tin and closed and tied with a thread and seal to protect it from leakage and air. Sri. L. Narayana, Food Inspector pasted label bearing Code and Sl. No. 36/ KNR/D III/18111/1995 of the Local Healthy Authority on each plastic tin. Each sample tin was wrapped with thick brown paper and the ends neatly folded in and affixed with means of gum. On each part of sample bottle paper slip having signature Code Number and serial number 36/KNR/D III 18111/ 1995 of the Local Authority Karimnagar District was pasted completely running from bottom to top and obtained the signatures of the accused by covering both wrapper paper and paper slip of each sample bottle and tied with thread both above and across the sample tin and sealed with wax on top and bottom and both sides of the body of sample tin by covering the knots and the thread. Panchanama was drafted and the Food Inspector obtained the signatures, of witnesses and the accused.
5. It was also further stated that the Food Inspector dispatched one part of sample bottle with Form No. VII containing specimen impression seal of the Food Inspector to the Public Analyst by registered parcel and separate copy of memorandum in form No. VII containing the specimen impression seal of the Food Inspector was also sent to the Public Analyst by registered post with acknowledgment due. The remaining two parts of the sample bottles along with form No. VII copies containing the specimen impression seal were handed over to the Local Health Authority and obtained acknowledgment. It was also stated that the Public Analyst declared that the sample of Alasandalu did not conform to the standards and hence, Alasandalu were adulterated. The report in form No. 3 containing No. 212/1995, dated 6-5-1995 in four folios were sent to the Local Health Authority and in turn the Local Health Authority has forwarded the said report to the Food Inspector for necessary action. The Food Inspector submitted a detailed report basing on the Analyst’s opinion and panchanama along with entire file to the Food Health Authority, Andhra Pradesh, Hyderabad for written consent and on perusal of the Xerox copies of entire file, Food Health Authority, Hyderabad had issued prosecution sanction orders to prosecute the accused vide proceedings No. 5051/F6/96, dated 2-7-1996. Hence, the complaint.
6. P.W.1, the Food Inspector and P.W.2, the panch witness were examined and Exs. P1 to P22 were marked. P.W.2 did not support the case of the prosecution. P.W.2 deposed that he does not know the contents of the paper on which the Food Inspector obtained his signature. Hence, the evidence of P.W.1 alone is available. It is no doubt true that the evidence of P.W.1 as such also can be relied upon. Learned Magistrate discussed the evidence of P.W.1 in detail at paras 10, 12 to 15. Learned Magistrate also appreciated Exs. P1 to P22 in detail.
7. It was further held that there is undue delay in launching prosecution. Sample was allegedly taken on 23-3-1995 and the complaint was filed before the Court on 13-8-1996. There is one year five months delay in launching prosecution and hence, the said delay is fatal. Apart from this reason, the other reasons also had been recorded by the learned Magistrate while recording acquittal.
8. In R. Chandrakanth v. State of A.P., 2002 (2) ALT (Crl) 288 (AP) while dealing with Sections 10(4), 11(4) and 13(2) of the Act, it was held that in case of seizure and collecting sample, seizure is not mandatory but only directory and in the instant case, there is no seizure and there is only collection of sample. Section 11(4) of the Act is not applicable and the delay of eight months in filing complaint is not explained. The petitioner has the valuable right under Section 13(2) of the Act and hence, prejudice has been caused to the accused and he is entitled to the benefit of doubt. Accordingly, conviction and sentence imposed by the Courts below had been set aside and the Criminal Revision Case was allowed.
9. A similar view was expressed in Ahmed Dadabhai Advani v. State of Maharashtra, . While dealing with the word “immediately” in Rule 9-A of the Rules, the fact that the report whether sent immediately to the accused has to be determined on facts and circumstances of each case. The date of report was 1-9-1978 and the complaint was filed on 26-4-1979. The report was dispatched on 11-7-1979. It was held that it cannot be said that report was sent promptly and the accused was entitled to an acquittal.
10. In the light of the reasons recorded by the learned Magistrate at para 18 and in the light of other findings recorded by the learned Magistrate at the preceding paras, it is no doubt true that the evidence of P.W.1, the Food Inspector alone is available and it may be sufficient, but however, the fact remains that P.W.2 did not support the version of the prosecution and taking all the facts and circumstances into consideration, the learned Magistrate had recorded that the delay in launching prosecution had caused prejudice to the respondent/accused, and had recorded an acquittal.
11. In the light of the findings recorded by the learned Magistrate in detail, this Court is of the considered opinion that the said findings are well considered findings, which need not be disturbed by the appellate Court and the said findings are hereby confirmed.
12. Accordingly, the Criminal Appeal shall stand dismissed.