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Allahabad High Court · body

1980 DIGILAW 1059 (ALL)

Braj Bihari Lal v. State of U. P

1980-11-12

J.P.CHATURVEDI

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JUDGMENT J.P. Chaturvedi, J. - This is a revision against a judgment and order of the learned Sessions Judge, Aligarh dismissing an appeal of the applicant Braj Behari Lal and affirming his conviction u/s 16 read with Section 7 of the Prevention of Food Adulteration Act and sentence of six months' R I. and fine of Rs. 1,000/-, recorded by the learned Judicial Magistrate II, Aligarh. In default of payment of fine the applicant was further to undergo rigorous imprisonment for three months. 2. The prosecution case was that the applicant Braj Behari Lal runs a shop in Mal-godown street, near the grave of Dog, in the town of Aligarh. On October 19, 1977 at 1.45 p.m., Food Inspector Ranvir Singh inspected his shop and found the applicant selling boiled milk. He purchased 660 millilitres of milk on payment of Rs. 1.62 p. to the applicant. He also gave him notice in form No. 6 stating that the sample milk was being purchased for analysis. He obtained a receipt for the price given from the applicant. The sample milk was sent to the Public Analyst who found that the sample milk contained 5.3 per cent of fat and 8.5 per cent of non-fatty solids, and that it was deficient in milk fat by 12 per cent and non-fatty solids by 6 per cent. It was, therefore, found to be adulterated. After obtaining usual sanction from the Chief Medical Officer, the Food Inspector made a complaint against the applicant on 10-5-1978. 3. The applicant pleaded not guilty. He stated that he did not deal in milk and that the milk was meant for preparing Khoa. 4. Learned counsel for the applicant has contended that the provisions of sub-section (2) of section 13 of the Prevention of Food Adulteration Act have not been complied with and, therefore, the conviction of the applicant was illegal. He stated that he did not deal in milk and that the milk was meant for preparing Khoa. 4. Learned counsel for the applicant has contended that the provisions of sub-section (2) of section 13 of the Prevention of Food Adulteration Act have not been complied with and, therefore, the conviction of the applicant was illegal. Sub-section (2) of Section 13 of the Prevention of Food Adulteration Act is as follows :- "On receipt of the report of the result of the analysis under sub-section(l) 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 14-A, 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. It thus requires that on receipt of the report of the Public Analyst that the article of food is adulterated, the local authority shall after the institution of the prosecution against the person from whom the sample of article of food was taken, forward a copy of the report of the Public Analyst to such person informing him that if it is so desired he may make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of article of food, kept by the Local (Health) Authority, analysed by the Central Food Laboratory. It is abundantly clear that the copy of the report of the Analyst as well as the intimation are to be sent after the institution of the prosecution. It is abundantly clear that the copy of the report of the Analyst as well as the intimation are to be sent after the institution of the prosecution. Inasmuch as a valuable right is conferred on the accused to get the sample examined by the Central Food Laboratory, the accused is apprised of the prosecution which has been launched against him and that he could move the Court in which the prosecution has been launched to send the sample kept with the Local (Health) Authority for analysis to the Central Food Laboratory. The provision being mandatory, it must be complied with in all its particulars. In the present case, the report of the Analyst was despatched on 9-5-1978 while the complaint was instituted on 10-5-1978. The applicant was not apprised of the name of the Court in which the prosecution was being launched, and as such he could not approach the court within the prescribed period of ten days to send the sample for analysis to the Central Food Laboratory. Non-compliance of a mandatory provision goes to the very root of the prosecution case and, therefore, the conviction of the applicant could not sustain. 5. Learned Assistant Government Advocate has relied upon two decisions of this Court. The first being the case of Ganga Din v. State of U.P. reported in 1980 A.W.C. 235 : 1980 (I) FAC 401. In that case there was a finding of fact that there was no evidence that the notice had been despatched before the prosecution had been launched. Moreover, at no stage in that case it was contended that there was non-compliance of Section 13(2) of the Prevention of Food Adulteration Act because the notice had been sent before the prosecution had been launched. 6. The other case is of Kesar Singh v. State of U.P. reported in A.C. C. 1979 (XVI) page 315 : 1980 (1) FAC 318. In that case there was no evidence to show that the notice was at all despatched or received by the applicant and as such the question which is material for this case was never at issue in that case. 7. The revision is, therefore, allowed and the conviction of the applicant for the offence punishable u/s 16 read with section 7 of the Prevention of Food Adulteration Act and sentence of six months' R.I. and fine of Rs. 1,000/- are set aside. 7. The revision is, therefore, allowed and the conviction of the applicant for the offence punishable u/s 16 read with section 7 of the Prevention of Food Adulteration Act and sentence of six months' R.I. and fine of Rs. 1,000/- are set aside. The applicant is on bail to which he need not surrender. His bail-bonds arc cancelled and sureties are discharged.