CC No. 171/2006.. 1 of 9..Jt. Dt: 13-08-13
IN THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS AT LUXETTIPET
Present: CH. JITHENDHAR, LL.M.,
I Additional Judicial Magistrate of First Class, Mancherial. FAC JFCM, Luxettipet. Tuesday, this the 13th day of August, 2013
CC.No. 171 of 2006
Between:-
State through Food-Inspector, Division – II, Adilabad district. …Complainant
And
Gundapara Chithraiah S/o Kotaiah, age 52 years, vendor cum Prop. Of Sai Pure Packed Drinking water Beet Bazar, Utkoor village of Luxettipet Mandal, Adilabad dist. …Accused This case is coming on before me for final hearing on 13-08-13 in the presence of Sri S.Ravinder, APP for the prosecution and Sri.G.Govinda Rao. counsel for the accused, hav- ing heard and considered, this court delivered the following:
JUDGMENT
This is an alleged case of stocking and selling misbranded and adulterated packaged drinking water for human consumption about which the complainant/Food Inspector, Division-II, Adilabad Dist lodged a complaint before the Court stating the facts as follows.
1. On 22-2-06 at about 3.30pm, PW1 visited M/s. Sai Pure Packaged
Drinking Water, Beet bazar, Utkoor village while accused was there managing the business, and after disclosing his identity inspected the industry in the presence of one independent panch witness/PW2, found about 15 plastic bags containing 100 packets of 250ml each without batch number, date of packing, and without ISI certification, for sale for human consumption packed but with print that water purified with latest RO technology with USA, ozonized and UV sterilized and processed and packed by M/s. Sai Pure Packaged Drinking Water. On suspicion that the same are adulterated and misbranded, he purchased 36 of such packets by paying
Rs.52/- and sealed the sample in three equal parts for sending it for analysis and informed his intention as such to the accused. PW1 drafted panchanama
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recording the entire proceedings of such visit, inspection and lifting of samples and obtained signature of panch and accused on it. On 23-2-06 the complainant sent one part of sample to the Public analyst, State Food
Laboratory, Hyderabad who in turn analyzed and reported his opinion that the sample does not conform to the standards of aerobic microbial count, it does not have BIS certification mark, thereby violating the rule 49(28), and not sterilized as declared on the label hence it is adulterated as per S.2(ia)
(m) and misbranded as per S.2(ix)(k) of PFA Act. After obtaining proprietorship particulars pertaining to the said M/s. Sai Pure Packaged
Drinking Water plant from accused and obtaining written consent for institution of prosecution from the Director, Institute of Preventive Medicine,
Public Health Labs and Food (Health) Authority, Hyderabad, Andhra Pradesh, the complainant lodged this complaint on 31-7-06 stating that Accused committed offences punishable u/s 16(1)(a)(i) of the PFA Act, 1954 by contravening S.7(i) & (ii), 2 (ix)(e), 2(ix)(k), 2(ia)(m) of PFA Act, 1954 r/w
R.49(28) of PFA Rules, 1955.
2. After careful consideration of the material, this court took cognizance of the same. On appearance before this court, the relevant copies of documents were furnished to accused u/s 207 Cr.P.C. He was examined u/s 251 Cr.P.C. explaining the substance of the accusation leveled against him, for which he pleaded not guilty and claimed to be tried. To prove its case, prosecution examined PW1 & 2 and got marked ExP1 to P25. After closure of prosecution evidence, accused was examined u/s 313 Cr.P.C explaining the incriminating evidence and circumstances against him in the prosecution evidence for which he denied as being false and pleaded not guilty. Defense reported no evidence. Heard arguments on both sides.
3.Now the point for determination is whether the prosecution proved the guilt of the accused, for the offences punishable u/s 16(1)(a)(i) of the PFA Act, 1954 for contravention of S.7(i) & (ii), 2 (ix)(e), 2(ix)(k), 2(ia)(m) of PFA Act, 1954 r/w R.49(28) of PFA Rules, 1955, beyond reasonable doubt.
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4. Firstly it is the complaint that accused was the owner of the said M/s.
Sai Pure Packaged Drinking Water plant, that the available packaged drinking water packets at such plant were not only misbranded but also adulterated and as such that the accused committed the offences alleged. It is the defense that no panchanama was conducted and nothing was seized therefrom, that the complaint and available evidence itself clearly shows several unexplained procedural lacunae which makes the complaint completely unreliable, and that the accused was falsely implicated by the complainant only for statistical purpose. It is pertinent to note in the beginning itself that PW2/mediator did not support PW1 in as much as he stated that he do not know accused, that PW1 obtained his signatures on blank papers, and that nothing was seized in his presence.
5. PW1 deposed that he was appointed as Food Inspector vide GO MS
No.452 dtd 7th Sept, 1994 which is marked as ExP1. During his evidence
before the Court, he narrated the entire incident as follows. On 22-2-06 at
about 3.30pm he along with his officer subordinate one Mohd. Shakil visited
M/s. Sai Pure Packaged Drinking Water plant, Uthkur village when accused was present there managing the business and process. At that time there were few customers among whom PW2 accepted to be a panch witness and other customers refused to be so. In the presence of PW2, PW1 disclosed his identity and enquired accused about the PFA license and BIS certification whereby accused disclosed that he had not obtained BIS certification. PW1 then inspected the plant and found 15 sealed bags containing 100 sealed packets of 250ml water without certification mark, batch number, and date of packing. On enquiry accused stated that they are stocked for sale for human consumption. Suspecting that they may be misbranded and adulterated, PW1 purchased 36 of such water packets as samples paying its cost and obtaining the receipt i.e ExP2. Then he informed through notice i.e
ExP3 to accused that the said samples will be sent for analysis. Thereafter
PW1 divided the purchased packets into 3 equal parts i.e each containing
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12packets, sealed them in 3 dry, clean and empty plastic jars fastening them with twine and affixing a label no.37/ADB/D-II/25075/2006. Copy of such label was marked as ExP4. One empty sachet is marked as ExP5. Then PW1 wrapped each jar with thick brown paper and affixed four distinct seals with specimen impression seals on four sides of each jar and obtained signatures of accused and panch witness. Thereafter he drafted a panchanama about his visit, inspection and lifting of samples and after explaining its contents obtained signatures of accused and panch witness. ExP6 is the said panchanama.
On 23-2-06 he sent one sample container along with Form-VII affixing specimen impression seal to the public analyst, SFL, Nacharam, Hyd. for analysis. A separate memorandum in form-VII bearing the specimen impression seal was also sent to the public analyst in a sealed cover. Postal receipts were marked as ExP7 & 8 respectively. Thereafter PW1 deposited on the same day the remaining two parts of samples with the Gazetted Food
Inspector and Local Health Authority, Adilabad Dist. for safe custody and obtained acknowledgment to that effect vide ExP9. The gram panchayath tax receipt submitted by accused to PW1 is marked as ExP11. On 6-4-06, he received the public analyst report no.83/2006 dtd 31-3-06 with covering letter no.545/SFL/2006, dtd 31-3-06 in which the public analyst opined that the sample does not conform to the standards of aerobic microbial count, it does not have BIS certification mark, thereby violating the rule 49(28), and not sterilized as declared on the label hence it is adulterated as per S.2(ia)
(m) and misbranded as per S.2(ix)(e) and S.2(ix)(k) of PFA Act. Such analysis report was marked as ExP12 and the said covering letter was marked as
ExP13 and both corroborated the same. Then PW1 submitted a detailed report to the Director, IPM, Andhra Pradesh seeking necessary orders. After obtaining written consent vide RC No.10376/F6/2006 dtd 29-5-06 i.e ExP14, he filed this complaint against the accused on 31-7-06 on which cognizance of the offence was taken on 10-8-06.
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6. He also deposed that he intimated the Local Health Authority, Adilabad about the cognizance of the offence whereon they issued a notice u/s 13 (2) of PFA Act to the accused by registered post enclosing the analyst report.
Acknowledgment of such notice by accused is marked as ExP17. It is pertinent to note here that ExP17 does not bear any postal date stamp and that the copy of such notice, postal receipts and acknowledgment were filed in this Court on 29-1-09 after almost 3yrs even though they are showed to be sent in 2006 itself, and such delay remained unexplained either by complainant or APP. Further ExP16 which was marked as postal receipt through which such notice was sent to accused also does not bear any postal date stamp on its face. Such absence of postal date stamps on postal receipt and acknowledgment do not support the evidence of PW1 as to sending of
S.13(2) notice as prescribed by law. Further PW1 had not deposited the remaining two samples before the Hon'ble Court even before or after lodging the complaint. When compared with the signatures of accused on other documents submitted by PW1 himself, the signature on the acknowledgment is not tallying with. Such difference makes the very alleged service of notice doubtful. The defense counsel argued that the accused was not served with notice as prescribed u/s 13(2) of the Act, that the label itself contained that the packaged water is best before 21days only from date of packing, but that from the date of seizure the complaint was lodged after 4months violating provisions of S.11(4), and finally as such the accused was deprived of opportunity to get the second opinion in these circumstances, and in support of his argument the defense counsel relied on M.Jaipal Reddy and another v.
State of AP, 2011(2) ALD (Crl) 868 (AP). The doubtful documents showing service of notice, delay in lodging complaint from the date of analysis report and non deposit of remaining samples immediately after report before the
Court give strength to such argument.
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7. During cross examination, he admitted that he was non-gazetted as on the day of lifting samples. Admittedly PW1 did not file before this Court the detailed report submitted by him to the Director, IPM(FHA). He had to lift sample for analysis as per R.22 of PFA Rules 1955. On one hand he stated that he scribed the panchanama and read over the contents to panch for confirmation and on the other hand ExP6 shows the contents as if the panch himself had stated the same. He stated that after drafting the panchanama, he obtained signatures of accused and panch. But the said panch witness did not support him in that regard as stated supra.
8. As the panch witness did not support the prosecution, what evidence the prosecution has against the accused is the sole evidence of PW1 coupled with documents. If panchanama was conducted in the presence of PW2, his denial of panchanama in his presence weakens the evidence of PW1. The defense counsel argued that PW1 prepared false panchanama by planting a person who has reason to oblige him at that time and implicated the accused herein. In these circumstances, the office subordinate who was admittedly present at the time of panchanama would have been another material witness to corroborate PW1. But he was not examined by prosecution. Such intentional ignorance of available witness goes against the prosecution.
9. The learned defense counsel argued that samples were not collected in the required quantity and as such PW1 violated the mandatory procedure prescribed. R.22 of PFA Rules prescribes the minimum quantity of sample to be lifted as 4000ml in case of water but admittedly 36 packets of 250ml water were lifted as sample in 3 parts which amounts to only 3000ml of each water sample part which is a clear violation of required quantity of sample.
Further it was pointed out by defense counsel that on ExP5 '250ml' was printed but the correct quantity contained in each packet was not known until it is measured. Admittedly PW1 did not measure the water sample lifted as alleged. This lacunae remained unexplained by prosecution.
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10. The learned defense counsel argued that even though the water were packed in polythene covers, they were not properly sealed by PW1 as water in polythene covers will not be in tact for much time and that PW1 did not add any preservative in the jars due to which the water might have become adulterated as alleged. Even though the label itself contained that the water is best before 21 days from the date of packing, the sample was admittedly analysed after such 21 days itself. Admittedly samples were water packets and they were sealed in jars as it is and no preservatives were added. It is quite natural that water in polythene covers will not stand good for much time and naturally they are bound to contaminate as such. This lacunae also remained unexplained.
11. The learned defense counsel argued that if truly S.13(2) notices were sent to the accused in 2006, PW1 could have filed the acknowledgment and other documents in the year 2006 itself but they were filed in 2009, and that such non-filing of the same initially itself caused prejudice to the accused.
Admittedly, the postal receipts and acknowledgment were filed before this
Court in 2009 and no reason was adduced for such delay.
12. The defense counsel argued that accused was no where concerned with the samples, and that the accused was falsely implicated for statistical purpose. Except PW1 there is no independent evidence to prove the connection of accused with the alleged panchanama or samples allegedly seized. It is no doubt true that the evidence of public servants cannot be brushed aside on the ground that they are interested witnesses, but the very fact that the very panch witness cited by prosecution did not support it itself creates a doubt as to the panchanama.
13. The defense counsel argued that even though allegedly samples were lifted on 22-2-06 and analysis report was received on 6-4-06, the complaint was lodged with an unexplained delay of 3 months, which is fatal to the prosecution against the accused. The APP explained the delay as procedural
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to obtain necessary permissions from higher authorities. But such procedural delay may be for few days but more than 3 months was inordinate and was not sufficiently explained.
14. The defense counsel relied on various reported decisions of various
High Courts to support their argument as to various lacunae as pointed above and finally submitted that there is no sufficient evidence to show that the said sample was lifted from accused, that the accused was no where concerned with the samples and offence alleged, that there are many unexplained and admitted lacunae in the prosecution evidence itself which makes the prosecution case weak and doubtful the benefit of which shall go in favor of accused. As panch witness did not support, there is no independent corroboration. As discussed supra, the lacunae pointed out by defense counsel remained unexplained by either PW1 or APP. When the alleged panchanama itself is not sufficiently proved it can not be said that the prosecution established the allegation as to misbranding.
15. In these circumstances, I opine that the prosecution case is not sufficiently proved and that the prosecution's case is weak and doubtful against the accused and finally that the benefit of such doubt shall go in favor of the accused.
16. In the result, accused is found not guilty for the offences punishable u/s 16(1)(a)(i) of the PFA Act, 1954 for contravention of S.7(i) & (ii), 2 (ix)(e), 2(ix)(k), 2(ia)(m) of PFA Act, 1954 r/w R.49(28) of PFA Rules, 1955 and ac- cordingly he is acquitted u/s 255(1) CrPC for the said offences. The bail bonds of the accused shall remain in force for a further period of 6 months so as to bind him to appear before the appellate Court if any appeal is preferred from this judgment.
Typed to my dictation by Typist and after correction, pronounced by me in the open court on this the 13th day of August, 2013.
I Addl.Judicial Magistrate of First Class, Mancherial FAC JFCM, Luxettipet.
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Appendix of evidence Witnesses examined For prosecution:
PW-1 (LW-1): Ch.Gangadhar - complainant PW-2 (LW-2): K.Sathaiah – panch witness for lifting of sample
For Defence : NIL
Exhibits marked for Prosecution:
Ex.P-1: G.O.Ms.No.-452, HMFW(L1), dt:07-09-1994 – through PW1 Ex.P-2: Cash receipt– through PW1 Ex.P-3:Form VI notice – through PW1 Ex.P-4:Lable– through PW1 Ex.P-5: Wrapper of Sai packed drinking water– through PW1 Ex.P-6: panchanama– through PW1 Ex.P-7:Original postal parcel– through PW1 Ex.P-8: Original postal receipt– through PW1 Ex.P-9: Memorandum affixed with specimen seal with gazatted Food-Inspector– through PW1 Ex.P-10:Memorandum to the public analyst– through PW1 Ex.P-11:Gramapanchayath tax receipt– through PW1 Ex.P-12: public analyst report– through PW1 Ex.P-13: covering letter– through PW1 Ex.P-14:report by director– through PW1 Ex.P-15: Notice U/s.13(2)– through PW1 Ex.P-16: postal receipt– through PW1 Ex.P-17:acknowledgment card– through PW1 Ex.P-18:GO.Ms.NO.62– through PW1 Ex.P-19: GO.Ms.NO.312– through PW1 Ex.P-20: G.O.Ms.No.112– through PW1 Ex.P-21:G.O.Ms.NO.46– through PW1 Ex.P-22: signature on cash receipt-through PW2 Ex.P-23: signature on Form VI-through PW2 Ex.P-24: signature on lable-through Pw2 Ex.P-25: signature on panchanama-through Pw2
Exhibits marked for Defence: NIL
No of Material Objects Marked :
nil
I Addl.Judicial Magistrate of First Class, Mancherial FAC JFCM, Luxettipet.