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Rajasthan High Court · body

1996 DIGILAW 1082 (RAJ)

State of Rajasthan v. Manohar Lal

1996-09-23

MOHD.YAMIN

body1996
Honble YAMIN, J. – A very short point is involved to decide this appeal. But the facts first – case of the prosecution is that Manohar Lal is the owner of M/s. Manohar Lal Bhagirath. Bhagirath was sales man. This firm used to sell chillies powder. On 28.10.75 at about 2.00 P.M., Food Inspector, Girish Narain inspected the shop. At that time, Bhagirath was present and was selling edible articles. The Food Inspector purchased 450 Gm. of Chillies powder from him. It was devided into three different parts and was sealed in different phials and then it was sent for analysis to the public analyst. Report dated 4.12.1975 was obtained, according to which the sample was adulterated. Complaint was presented before the learned Judicial Magistrate No.2, Jodhpur, where Bhagirath and Manohar Lal were tried and both of them were convicted u/s 7/16 of the Prevention of Food Adulteration Act. Bhagirath was minor at the time of offence and he was given benefit under the Probation of Offenders Act, but respondent Manohar Lal was sentenced to six months rigorous imprisonment and a fine of Rs. 1,000/-. He was ordered to undergo three months rigorous imprisonment in case of default of payment of fine. He the- reafter preferred an appeal before the learned Sessions Judge,Jodhpur, which was decided by the Additional Sessions Judge No.1, Jodhpur, on 29.1.1979. He acquitted the respondent. State has come in an appeal against this acquittal. (2). I have heard the learned Public Prosecutor and the learned counsel for the respondent. (3). The learned Sessions Judge acquitted the respondent on the ground that Girish Narain Mathur (PW 1) had stated that the sample was sent to the Public Analyst, Jodhpur, for chemical examination but the report (Ex. P.6) mentions that the sample was examined by the Public Analyst of Jaipur and that there was no link evidence to prove that the sample was sent from the Public Analyst, Jodhpur to the Public Analyst, Jaipur in its original condition. Therefore, the point to be decided is whether the acquittal on this count was right or not? (4). Learned Public Prosecutor has contended that there is presumption u/s. 114-E of the Evidence Act to the effect that the court may presume that judicial and official acts have been regularly performed. Therefore, the point to be decided is whether the acquittal on this count was right or not? (4). Learned Public Prosecutor has contended that there is presumption u/s. 114-E of the Evidence Act to the effect that the court may presume that judicial and official acts have been regularly performed. Therefore it may be presumed that when sample was forwarded from the Public Analyst, Jodhpur to the Public Analyst, Jaipur, it went in sealed manner as it was sent by the Food Inspector to the Public Analyst of Jodhpur. Therefore, according to the learned Public Prosecutor, the learned Sessions Judge should not have acquitted the respondent. On the other hand, the learned counsel for the accused-respondent has submitted that there cannot be any such presumption and the prosecution has to prove its case beyond doubt. He has submitted that there is evidence to the effect that the Food Inspector sent the sample for examination to the Public Analyst, Jodhpur, in sealed covers according to rules, but there is no evidence to the effect that it reached in the same condition to the Public Analyst, Jaipur, for examination, who prepared Ex. P.6. He has submitted that there cannot be any presumption for the manner in which the sample was sealed and reached to the Public Analyst, Jaipur. (5). Learned counsel for the respondent has cited Annu Khan vs. State of Raj. (1), wherein material link evidence was missing and there was no evidence that in whole custody, the seal remained intact. It was held that tampering with the sample cannot be ruled out. It was a case under N.D.P.S. Act, but the principle is that the link evidence should positively prove that the sample reached to the Public Analyst in the same condition as when it was sealed. I agree with this view. (6). Learned counsel for the respondent has cited Ratan Lal vs. The State (2). This case relates to opium, but it has been held that the sample of the incriminating article reached the hands of the chemical examiner in the same condition in which it was taken by the police officer is formal, yet it cannot be dispensed with and in the absence of such an evidence it is open to take a plea that the chemical examination report of the public analyst cannot be read against the accused. He has also relied on the State of Raj. He has also relied on the State of Raj. vs. Daulat Ram (3), wherein the Apex Court examined this point and held that the contraband samples changing several hands with possibility of their not being changed or tampered with, is not ruled out. Therefore, this fact is to be proved affirmatively by the positive evidence that while in custody of witnesses, the seals were not tampered with. From the evidence of Girish Narain (PW 1), it is borne out that he took sample of chillies powder from the shop of the respondent. He filled in Form No.7 in three copies. He sent the sample to the Public Analyst, Jodhpur along with Form No. 7 as well as the seal impression. But he has stated that the report (Ex. P.6) was received from the Public Analyst Jaipur. He had not forwarded the sample to the Public Analyst, Jaipur along with Form No.7. He has not explained as to how it reached the Public Analyst, Jaipur, while the Public Analyst, Jaipur has mentioned in Ex. P.6 that the sample and the seal of the sample were received from Food Inspector, Jodhpur. It does not mention that the sample was received from the Public Analyst, Jodhpur while there is definite evidence to the effect that the Food Inspector had forwarded the sample along with seal to the Public Analyst, Jodhpur, which is clear from Form No. 7 (Ex. P.5). The result is that there a doubt creeps in as to how the sample was forwarded and examined by the Public Analyst, Jaipur. Prosecution has not examined any witness on this aspect. In view of law quoted above, there should be positive evidence to prove that the sample was sent to the Public Analyst, Jaipur, in the very sealed condition in which it was prepared by the Food Inspector. (7). The argument of the learned Public Prosecutor that the court may presume the existence of the fact of examination of sample by Public Analyst u/s. 114-E of the Evidence Act, is not appealing. When the Apex Court says that the facts are to be proved affirmatively by the positive evidence, the question of presumption does not arise. (7). The argument of the learned Public Prosecutor that the court may presume the existence of the fact of examination of sample by Public Analyst u/s. 114-E of the Evidence Act, is not appealing. When the Apex Court says that the facts are to be proved affirmatively by the positive evidence, the question of presumption does not arise. In my view, therefore, the learned Sessions Judge was right in coming to the conclusion that the link evidence was missing and the prosecution was not able to prove beyond doubt that the sample which was sent by the Food Inspector to the Public Health Laboratory, Jodhpur, reached intact to the Public Analyst, Jaipur. Finding of the learned Sessions Judge is not perverse. (8). The order of the learned Sessions Judge, does not suffer from any infirmity and I do not find any reason to interfere. (9). Consequently, this appeal has no force. It is, hereby, dismissed.