JUDGMENT
P.S. Narayana, J.
1. The Food Inspector, Nellore District filed the present criminal appeal against the order of an acquittal recorded by the Additional Judicial Magistrate of I Class, Kovur dated 31st day of December 1998 in C. C. No. 74 of 1995.
2. The State of Andhra Pradesh, represented by the Food Inspector, Nellore filed complaint against the accused under Sections 16(1)(a)(i), 7 (i) and 2(i-a)(m) of Prevention of Food Adulteration Act, 1954 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) alleging that he visited the shop of accused situated at Anareddypalem on 15-11-1994 at about 3-00 p.m. along with his attender, P. W. 2 and found the articles kept in the shop for human consumption and at the relevant point of time the accused was transacting the business and he had secured the presence of mediator, P.W. 3 and found an open tin containing about 10 Kgs. of Groundnut oil and suspected its quality and purchased 450 gms. of Groundnut oil by paying Rs. 17-10 ps. and obtained a receipt and he had also served Form VI notice on the accused expressing his intention of sending the purchased Groundnut oil sample to the Public Analyst, Andhra Pradesh, Hyderabad for the purpose of analysis and the mediators and accused also had signed on receipt and Form VI notice and he divided the sample into three equal parts and poured them into three clean, dry and empty bottles and corked and sealed the bottles as per procedure under the Act and Rules and sent one of the bottles to the Public Analyst and keeping the remaining two bottles with the Local (Health) Authority, Nellore. The Public Analyst analyzed the sample and opined that the sample does not conform to acid value and contained Castor oil and hence adulterated. On receipt of Public Analyst report, the Food Inspector sent a detailed report to the Director, Institute of Preventive Medicine Public Health and Food (Health) Authority, Andhra Pradesh, Hyderabad and the competent authority on perusal of the relevant documents, accorded permission to launch prosecution against the accused.
3. Prosecution examined P. Ws. 1 to 3 and Exs. P1 to P22 were marked. On appreciation of the evidence available on record, the learned Magistrate recorded an acquittal and aggrieved by the same the present criminal appeal is filed by the State.
4. The learned Additional Public Prosecutor had taken this Court through the evidence of P.Ws. 1 to 3 and also Exs. P1 to P22 and would contend that the learned Magistrate erred in holding that the sanction order is vitiated for non-application of mind. The learned Additional Public Prosecutor also would contend that the fact that the sample is adulterated with Castor oil is revealed by both the reports and hence in view of the same there is no question of any prejudice being caused for non-consideration of the earlier report Ex. P10.
5. Per contra Sri K. Suresh Reddy, learned counsel representing the respondent would contend that the reasons recorded by the learned Magistrate are convincing and sustainable. Ex. P10, the Analyst report is dated 26-12-1994, Ex. P13, letter of Chief Public Analyst is dated 28-2-1995 and the sanction order Ex, P12 is dated 14-3-1995. The learned counsel would also submit that mainly Ex. P12 is based on Ex. P13, which was not served on respondent/accused at all and serious prejudice had been caused. Learned counsel had also pointed out several other infirmities which had been discussed in detail by the learned Magistrate. Learned counsel also placed strong reliance on a decision in Shivraj Bang v. State of A. P., 1996 FAJ 181.
6. Heard both the counsel.
7. As already referred to supra the prosecution examined P.Ws. 1 to 3. P. W. 1 is the complainant himself and P. W. 2 is the Attender and P. W. 3 is the mediator. P. W. 1 deposed about his appointment as Food Inspector and about his visit and inspection of the food articles at the shop of the accused and the accused transacting the business at the relevant point of time and his securing the presence of mediator P.W. 3 during inspection and about the open tins containing 10 Kgs. of Groundnut oil and his suspecting its quality and purchasing of 450 gms. of oil by paying cost of Rs. 17-10 ps. to the accused and obtaining a cash receipt. P.Ws. 2 and 3 attested on cash receipt, Ex. P2 and then he served Form VI notice to the accused expressing his intention to send the purchased Groundnut oil to the Public Analyst, Ex. P3 is the Form VI notice served on the accused, which was attested by P. Ws. 2 and 3. This witness further deposed about his dividing the said item into three equal parts and pouring them into three clean, dry and empty bottles and corking the bottles with twine and sealing the bottles and affixing the labels as per the Rules under the Act and obtaining signatures of accused on each bottle with the paper slip and a wrapper. This witness also deposed about preparation of panchanama, which was attested by P.Ws. 2 and 3. Ex. P5 is the panchanama. This witness further deposed that on 16-11-1994 he sent the sample bottle along with copy of Form VII notice containing his specimen impression seal to the Public Analyst vide postal receipt No. 4746, dated 16-11-1994 under intimation to Local (Health) Authority, Nellore. Ex. P6 is the Form VII notice, Ex. P7 is the postal receipt, Ex. P8 is the intimation to Local (Health) Authority, Ex. P9 is the postal receipt No. 5123 and P. W. 1 handed over the remaining two bottles of the sample along with Form VII in duplicate and specimen impression seal in a sealed packet to the Local (Health) Authority, Nellore District. The Public Analyst furnished his report dated 26-12-1994 stating that the sample does not conform to acid value, containing Castor oil and hence adulterated. Ex. P10 is the Analyst report. Ex. P11 is the covering letter dated 26-12-1994. The Director, Institute of Preventive Medicine, Public Health Labs and Food Health Authority, Andhra Pradesh, Hyderabad issued a written consent for launching prosecution under Section 20(1) of the Act. Ex. P12 is the sanction order dated 14-3-1995 mentioning 10% of Castor oil. Ex. P13 is the letter of Chief Public Analyst dated 28-2-1995. Then he filed a complaint on 6-4-1995 in the Court and served notice under Section 13 (2) along with copy of Form III analytical report to the accused and the same was served on accused on 25-4-1995. Ex. P14 is the office copy of Section 13(2) notice. Ex. P15 is the postal receipt. Ex. P16 is the postal acknowledgment. Ex. P17 is the xerox copy of G.O.Ms. No. 312, Medical and Health (L.I.), dated 30-5-1993. Ex. P18 is the xerox copy of true copy of G.O.Ms. No. 112/Health Medical and Family Welfare Department, dated 28-2-1994 in which it is directed to replace the words “Senior Food Inspector” the words “Gazetted Food Inspector” shall be substituted. Ex. P19 is the xerox copy of the G.O.Ms. No. 62 M. and H. (L. I.) Medical and Health Department dated 30-1-1995 in which Governor of Andhra Pradesh authorized the Food (Health) Authority, Andhra Pradesh, Hyderabad to give written consent to launch prosecution.
8. P. W. 2 supported the version of prosecution. P. W. 3 supported the version of prosecution only relating to obtaining his signature on paper by P. W. 1 in the shop of the accused. For the procedure adopted and other particulars relating to lifting sample P.W. 3 had not supported the version of the prosecution. This is the evidence available on record.
9. It is no doubt true that Ex. P12 in reference had referred to both Exs. P10 and P13. On the basis of first report dated 26-12-1994 Ex. P10 and the report of the Chief Public Analyst Ex. P13, the Authority accorded permission that the sample does not conform to acid value and contained about 10% of Castor oil and hence adulterated.
10. On a careful analysis of Ex. P12 it is clear that there was non-consideration of first report and the second report also had not been considered in detail. No doubt, in the light of the reasons in Ex. P12, submissions at length were made relating to the non-application of mind by the sanctioning authority. Ex. P14 shows that P. W. 1 sent first report dated 26-12-1994 and it was received by accused on 25-4-1995 under Ex. P16. The evidence of P.W. 1 in cross-examination also revealed that he had not mentioned percentage of Castor oil in his complaint and there is no mention of percentage of Castor oil in Ex. P10 and P.W. 1 also deposed that in sanction order Ex. P12 dated 14-3-1995 the percentage of Castor oil is shown as 10% basing on the letter of Chief Public Analyst, dated 28-2-1995 Ex. P13 and he has served notice under Section 13(2) on the accused by furnishing first report dated 26-12-1994 Ex. P10. Though he received the result of the report of Public Analyst he had not mentioned percentage of Castor oil in his complaint and he had not served 13(2) notice along with second report. On a careful scrutiny of Ex. P12 and also Ex. P10 and Ex. P13 the learned Magistrate arrived at a conclusion that prejudice is caused to the respondent/accused and accordingly recorded an acquittal. No doubt, certain other reasons had been recorded. It is needless to say that the independent witness P.W. 3 had not supported the version of prosecution in toto. Strong reliance was placed on 1996 FAJ 181 (AP), wherein it was held thus :
“It is only the first report dated 2-8-1991 which was furnished and with the result the petitioner is denied of his valuable right to dispute the correctness of the Analyst report by filing an application before the Court seeking analysis of the sample by Central Laboratory. Further, from the record available in the file, it is seen that the Director was not prepared to give permission to prosecute the petitioner on the basis of the first available report i.e., Ex. P16. But unfortunately, what transpired between the Director and the Chief Public Analyst was not even discussed in the sanction order Ex. P19. Hence, it cannot be said definitely that the Director would have given permission on the basis of Ex. P16 to launch the prosecution against the petitioner. As the sanction order did not throw any light on the circumstances under which a second report was called for by the Director, I have no hesitation to hold that there is no application of mind and the orders were vitiated sanctioning the prosecution on the basis of Ex. P16. Hence, the view taken by the Court below that even if the second report is brushed aside, the case of the prosecution can be sustained on the basis of Ex. P16 cannot be upheld under the provisions of the Act. Without there being a proper sanction order, no prosecution can be launched against the accused and this being the mandatory provision. I have no hesitation to hold that the sanction order Ex. P19 is not based on the first Analyst report Ex. P16, which was furnished to the petitioner. As observed supra, there was not even a mention about the contents of Ex. P16 in the sanction order. As the very sanction order is vitiated on the basis of which the prosecution was launched, the proceedings cannot be sustained in law and the entire proceedings thereafter are vitiated. On this ground alone, the petitioner has to succeed in this revision petition.”
11. On a careful scrutiny of Exs. P10, P13 and also the contents of Ex. P12 and the findings recorded by the learned Magistrate, this Court of the considered opinion that definitely in the facts and circumstances, prejudice had been caused to the respondent/accused and hence this Court cannot find fault with the acquittal recorded by the learned Magistrate and accordingly, the acquittal is hereby confirmed. The other findings recorded by the learned Magistrate are also hereby confirmed. The other findings recorded by the learned Magistrate are also hereby confirmed. The criminal appeal shall stand dismissed.