Rajendra Singh v. State of U. P. — 1987 DIGILAW 711 (ALL)

JUDGMENT V.P. Mathur, J. - This revision which was admitted only on the question of sentence is directed against the judgment and order dated 8-8-84, passed by Mr. G.A. Farooqi, the then III Additional Sessions Judge, Kanpur, in Criminal Appeal No. 74/M of 1984. The learned Judge dismissed the appeal and confirmed the judgment and order dated 26-3-84, passed by Sri K.K. Tyagi, the then Metropolitan Magistrate, Kanpur Corporation in criminal case No. 1402 of 1983, through which the applicant was convicted and sentenced u/s 7/16 of the Prevention of Food Adulteration Act to six months' rigorous imprisonment and a fine of Rs. 1000/- and in default to further undergo four months' rigorous imprisonment. 2. When the case was taken up for arguments, the learned Counsel wanted additionally to raise two legal points, namely that there has been non-compliance of the provisions of Section 10(7) and Section 13(2) of the Prevention of Food Adulteration Act, 1954. He was permitted to raise these two points which were legal but were based upon facts. 3. So far as the facts are concerned, there is no dispute and they are to the following effect. 4. On 28-12-1982 at about 12 noon Mr. S.N. Chaurasia, Food Inspector, found the accused selling milk in front of Cancer Hospital, G.T. Road, Kanpur. He made purchase of 600 m. Liters of milk after payment of Rs. 1.50. Then he put the sample into three separate phials, prepared spot memos and sent one phial to the Public Analyst. The report of the Public Analyst was to the effect that the sample was adulterated. Then a complaint was filed and after the evidence was taken, the accused applicant was convicted and sentenced. 5. He filed appeal No. 74 of 1984 and took the plea that there was non-compliance of the provisions of Section 10(7) of the Prevention of Food Adulteration Act. No plea was taken regarding non-compliance of the provisions of Section 13(2) of the Act. 6. No arguments have been advanced before me on the merits of the case and the facts as they have come up on record. No plea was taken regarding non-compliance of the provisions of Section 13(2) of the Act. 6. No arguments have been advanced before me on the merits of the case and the facts as they have come up on record. Section 10(7) of the Prevention of Food Adulteration Act lays down that when a Food Inspector takes any action under Sub-clause (a) of Sub-section (1), Sub-section (2), or Sub-section (4), or Sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. In the present case there is definite evidence of the Inspector concerned that he called the witnesses and wanted them to sign the memo as witnesses and they refused to oblige him. It is true that one Gupta was also present and the Inspector did not approach him but that will not make his statement unreliable in respect of his attempt to get the witnesses. The provisions of Section 10(7) of the Prevention of Food Adulteration Act are salutary and should be complied with by the Food Inspector. This, however, does not mean that the evidence of the Food Inspector, who is not an accomplice, that he has complied with the provisions of law by calling some persons to act and by asking them to append their signatures, should not be accepted without corroboration. On the contrary, the law is that the requirement of Section 10(7) shall be completely met with if the Inspector calls one or more witnesses. He becomes absolutely helpless it inspite of his request they do not oblige him and do not sign the memo. The testimony of the Inspector, therefore, cannot be discarded and in my opinion the Courts below were right in holding that the salutary provisions of Section 10(7) of the Act have been complied with. 7. Section 13(2) of the Act is another salutary provision of law. The testimony of the Inspector, therefore, cannot be discarded and in my opinion the Courts below were right in holding that the salutary provisions of Section 10(7) of the Act have been complied with. 7. Section 13(2) of the Act is another salutary provision of law. It lays down that on receipt of the report of the Public Analyst showing that the article of food is adulterated, the Local (Health) Authority after the institution of prosecution, has to forward in the prescribed manner a copy of the report of the result of the Analyst to the person concerned, informing him that, if he so desires, he may make an application to the Court within a period of ten days from the date of receipt of the copy. Rule 9A of the Prevention of Food Adulteration Rules supplements this provision of law further with respect to the time within which the information should be given and in which form it should be given. This case relates to the year 1982-83. The sample of milk was taken on 28-12-82. The report of the Public Analyst is dated 10-12-83. The prosecution was launched on 6-5-83, vide the first order of the Magistrate through which he has directed the registration of the case and summoning of the accused or 18-5-83. At that time the provision of Rules 9A, which was then applicable, was in the following terms: The Local (Health) Authority shall immediately after the institution of the prosecution forward a copy of the report of the result of the analysis in Form III delivered to him under Sub-rule (3) of Rule 7 by post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector.... 8. It may be mentioned here that this rule was subsequently amended by notification No. GSR 500 (E), dated 9-7-84. It was enforced on 9-7-84 itself and in place of the word 'immediately' the words 'within a period of 10 days' were substituted. 8. It may be mentioned here that this rule was subsequently amended by notification No. GSR 500 (E), dated 9-7-84. It was enforced on 9-7-84 itself and in place of the word 'immediately' the words 'within a period of 10 days' were substituted. But as I have already stated earlier since the subsequent amendment came into effect in July, 1984, it will not apply to the present case and we will be guided by Rule 9A as it stood prior to the amendment which called upon the local Authority to send a copy of the report of the result of the analysis to the person concerned immediately after the institution of the prosecution. The word 'immediately' was subject to a number of interpretations and in the matter of Tulsiram Vs. State of Madhya Pradesh, AIR 1985 SC 299 , the Supreme Court clearly laid down that the expression 'immediately' in Rule 9A is intended to convey the sense of continuity rather than urgency. What must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity so as to facilitate the exercise of the statutory right u/s 13(2) in good and sufficient time before the prosecution commences leading evidence. It was further held that non-compliance with Rule 9A is not fatal. It can only be a question of prejudice. The observations were that this rule carefully refrains from mentioning any definite limit of time such as that found in old Rule 9(j) which gives rise to the controversy whether the rule was mandatory or directory, and instead uses the very expression "immediately'. The Local (Health) Authorities are now required to forward to the person from whom the sample was taken in the manner prescribed, a copy of the Public Analyst's report immediately after the institution of the prosecution. This rule has to be interpreted so as to keep it in tune with and within the bounds of Section 13(2). The term 'immediately' is not to be understood to mean the very next instant, the very next hour, that very day, or the very next day. It should be construed in its setting. It is only meant to convey reasonable dispatch and promptitude and no more. The idea is to avoid dilatoriness on the part of the officialdom and prevention of unnecessary harassment to the accused. It should be construed in its setting. It is only meant to convey reasonable dispatch and promptitude and no more. The idea is to avoid dilatoriness on the part of the officialdom and prevention of unnecessary harassment to the accused. But it is not to penalise the prosecution and to provide a technical defence. The real question is, was the Public Analyst's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the out set to apply to the Court to send one of the samples to the Central Food Laboratory for analysis. There was a further observation to the effect that if after receiving the Public Analyst's report he never seek to apply to the Court to have the sample sent to the Central Food Laboratory, he may not be heard to complain of the delay in receipt of the report by him unless, of course, he is able to establish some other prejudice. 9. In another case of Babu Lal Hargovindas Vs. The State of Gujarat, AIR 1971 SC 1277 , the defence of the accused to the effect that he was deprived of his right u/s 13(2), to send the sample in his custody to the Director of Central Food Laboratory, due to delay in launching of the prosecution, was negatived by holding that such a defence will not be open when the accused has not moved an application u/s 13(2) of the Act, during the trial and when there is evidence that preservative was added to the sample. 10. This being the legal position, we find on facts that within 15 days of the bunching of the prosecution a copy of the Public Analyst's report was dispatched to the address of the accused by registered post. The registration receipt has been affixed on Ext. Ka 7 vide Ext. Ka 8 and mentions the date as 21-5-83. The Senior Food Inspector attached to the Chief Medical Officer's office was examined in this case and he has proved the fact of the sending of the report. He has also proved the fact of the address on which the report was sent and the correct address of Rajendra Singh as 100/6 Colonel Ganj, Kanpur. His father's name has rightly been mentioned as Laxman Singh. He has also proved the fact of the address on which the report was sent and the correct address of Rajendra Singh as 100/6 Colonel Ganj, Kanpur. His father's name has rightly been mentioned as Laxman Singh. In his statement recorded by the learned Magistrate, the accused-Appellant has not taken the plea that the report was not received by him or in any way he was prejudiced on this score. This being so, no case for non-compliance of Section 13(2) of the Food Adulteration Act is made out. 11. Coming to the question of sentence, undisputedly the report of the Public Analyst shows deficiency both in milk fat and milk solids other than fat. This was, therefore, a sample of adulterated milk and the law provides the minimum sentence which has been awarded in this case. The learned Magistrate could not have reduced it at all. 12. Section 20AA which was inserted by Act No. 34 of 1976 with effect from 1-4-76, clearly lays down that the provisions of the Probation of First Offenders Act and Section 360 of the Code of Criminal Procedure are not applicable to the cases covered by the provisions of Food Adulteration Act unless the person concerned is under 18 years of age, and the record before me shows that on his own assessment the accused was 36 years of age at the time when his statement was recorded. He is also, therefore, not entitled to the benefit of the provisions of the Probation of First Offenders Act. 13. In the result, the revision has no force and is hereby dismissed. The bail granted to the revisionist by the order dated 16-8-84 shall stand cancelled and the sureties are discharged. He shall surrender forthwith and be taken into custody to serve out the sentence. The record shall be sent down to the Court of the Metropolitan Magistrate concerned for further action.