Basudeo Prasad v. State of U. P — 1989 DIGILAW 923 (ALL)

JUDGMENT D.P.S. Chauhan, J. - Applicant Basudeo was convicted in Criminal case No. 3134 of 1980 under section 7/16 of the P.F. Act, 1954 (hereinafter referred to as 'the Act's by the V Addl. Munsif Magistrate, Agra, and he was sentenced to 6 months' S.I. together with a fine of Rs. 1000/-. In default of payment of fine, he was required to undergo further 6 months imprisonment. Aggrieved against this conviction and sentence, the applicant preferred criminal appeal No. 155 of 1981 which was dismissed on 10th June, 1982 by the Sessions Judge, Agra. The present revision is the outcome of the aforesaid conviction and sentence which was admitted by this Court on 11.6.1982 on the question of sentence. 2. Sri A.B. Saran Senior Advocate, sought for the leave for addressing the court on merit of the matter as it is a case where miscarriage of justice has been done. He pointed out that it is the mandatory requirement of law under subsection (2) of Section 13 of the Act that the report of Public Analyst if the food is found to be adulterated after institution of the prosecution has to be supplied to the accused persons informing him that if he desired, may make an application to the court within a period of 10 days from the date of receipt of the copy of the report so to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. He states that in the present case no such report was supplied to the applicant and accordingly he was deprived of his valuable right of getting the report of the Public Analyst analysed by the Central Food Laboratory so to find out whether the report of the Public Analyst was correct or not, and also to absolve himself from the guilt of Section 7/16 of the Act. Learned counsel for the applicant was granted leave to address the court on merit. 3. Heard learned counsel for the applicant and learned Addl. Public Prosecutor. The brief facts are that on 25.4.80 at about 2.45 P.M. in the town of Janger District Agra, the Sanitary Inspector Kheragarh checked the sweets sold by the applicant at the shop known as Gopal Mishthan Bhandar. The Food Injector purchased 750 grams of Nukti Ka Laddu for Rs. Heard learned counsel for the applicant and learned Addl. Public Prosecutor. The brief facts are that on 25.4.80 at about 2.45 P.M. in the town of Janger District Agra, the Sanitary Inspector Kheragarh checked the sweets sold by the applicant at the shop known as Gopal Mishthan Bhandar. The Food Injector purchased 750 grams of Nukti Ka Laddu for Rs. 7.50 which was divided into three equal parts and were kept three separate phials. One of the sealed phials was sent to the Public Analyst and the report of the Public Analyst was obtained which showed that the sample was found coloured with prohibited coaltar dye at amin. 4. Learned counsel for the applicant submits that this report of the Public Analyst was not supplied to the applicant. Initially the prosecution case set up was that the Public Analyst report was sent to the applicant by registered post on 18.8.1980. Since no such evidence was adduced that the report was delivered or sent to the applicant as required under Rule 9-A of the P.F. Rules 1955 (in brevity hereinafter referred to as the Rules), the prosecution moved an application before the appellate court for permission to adduce additional evidence regarding sending of the report of the Public Analyst to the appellant. The court' took the view that it not a fit case in which additional evidence should be admitted. Additional evidence can be admitted where a new aspect of the case is being considered by the appellate court and on which no evidence was adduced before the trial court, or where the appellate court considers the additional evidence necessary in order to enable it to pronounce judgment. Tie court said that the evidence sought to be adduced in this case could have been easily produced before the trial court and if the prosecution did not do so there is no reason why this court should permit it to adduce additional evidence here'. Now on the basis of the aforesaid finding, the question which cropped up for consideration is regarding the prejudice caused to the applicant on account of non-compliance of requirement of Section 13(2) of the Act read with Rule 9-A of the Rules as no such report of public analyst was sent to the applicant. Now on the basis of the aforesaid finding, the question which cropped up for consideration is regarding the prejudice caused to the applicant on account of non-compliance of requirement of Section 13(2) of the Act read with Rule 9-A of the Rules as no such report of public analyst was sent to the applicant. The fact of moving the application by the prosecution for additional evidence itself establishes the non-compliance of requirement of Section 13(2) of the Act and Rule 9-A of the Rules. It is thus established that the report of the Public Analyst was not sent to the applicant. 5. The question which arises for consideration is regarding the prejudice caused to the applicant by non-compliance of the report of the Public Analyst. In case Bhola Nath v. State, 1977 Cri. L.J. 154 (Cal.). it was held that the non-sending of the report of the Public Analyst by registered post deprived the accused not only of his valuable right but also caused prejudice to him. In Dal Chand v. Municipal Corporation Bhopal, AIR 1983 SC 303 . the court considered the nature of Rule 9(j) of the Rules as to whether the period of 10 days prescribed was directory or mandatory. The Supreme Court held that "where the effect of non-compliance with the rule was such as to wholly deprive the right of a person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint as prejudice would then be writ large." 6. In this view of the matter, I find that the applicant has been materially prejudiced in his defence on account of non-compliance of the Public Analyst report to him which has deprived him of his valuable right of getting the same examined by the Central Food Laboratory in defence of his guilt. 7. I accordingly allow this revision and Act aside the conviction and sentence as imposed on the applicant.