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Allahabad High Court · body

1996 DIGILAW 226 (ALL)

Iqbal Uddin v. State of U. P.

1996-02-23

VIRENDRA SARAN

body1996
Judgment : Virendra Saran 1. IQBAL Uddin has preferred this revision against the judgment and order dated June 8, 1983 of Sri V. K. Agarwal, IIIrd Additional Sessions Judge, Pratapgarh dismissing criminal appeal No. 92 of 1981 and affirming the judgment and order dated April 28, 1981 of Sri Rama Kant Singh. Judicial Magistrate, Pratapgarh convicting the applicant under Section 7/16 of the Prevention of Food Adulteration Act (for short, the Act) and sentencing him to 6 months' R.I. and a fine of Rs. 1,000 and in default of payment of fine to suffer further 2 month's R.I. 2. THE prosecution case is that a sample of milk was collected from the applicant on December 6, 1975 and according to the report of the Public Analyst dated January 19, 1976 the sample was below the prescribed standard in fat and non-fatty solids. Copy of the report of the Public Analyst was sent to the applicant informing him that if he wanted to get the sample analysed by the Central Food Laboratory, he may make an application under Section 13 (2) of the Act. THE prosecution witnesses have preferred to remain silent regarding the date when the intimation was sent to the applicant, but the postal acknowledgement shows that the intimation was served upon him on March 29, 1976. Prosecution was initiated by filing complaint in Court against the applicant on December 12, 1976. I have heard Sri M. Naseerullah, learned counsel for the applicant and the learned State counsel at length. 3. ONE of the contentions of the applicant at the trial was that there had been undue delay in instituting the complaint against the applicant as the sample of milk was collected on December 6, 1975 but the complaint was filed after more than one year on December 20, 1976. Learned counsel for the applicant has submitted that with such long lapse of time the other part of the milk sample preserved by the Local (Health) Authority must have become rotten and unfit for any analysis and the applicant was deprived of his valuable right under Section 13 (2) to get analysis done by the Central Food Laboratory. Learned counsel for the applicant has submitted that with such long lapse of time the other part of the milk sample preserved by the Local (Health) Authority must have become rotten and unfit for any analysis and the applicant was deprived of his valuable right under Section 13 (2) to get analysis done by the Central Food Laboratory. The point was again taken in appeal before the Court of Session, but the learned Sessions Judge repelled the contention on the ground that the applicant did not make any application for analysis of the milk by the Central Food Laboratory and, therefore, it was not open to him to avail of the plea that the prosecution was initiated with undue delay. Learned counsel for the applicant has further submitted that there has been yet another fatal lapse on the part of the prosecution In not complying with the mandatory provision of Section 13 (2) of the Act. He urged that the intimation that the milk was below standard along with report of the Public Analyst was served upon the applicant on March 29, 1976, but no complaint had been filed In any Court by then. The complaint was filed on December 12, 1976, i.e., nearly nine months later. 4. LEARNED counsel for the State has submitted that the sending of intimation under Section 13 (2) of the Act prior to the launching of prosecution is a mere irregularity and does not in any way affect the prosecution case. After giving my anxious consideration to the points raised in this revision, I am of the view that the latter submission of the learned counsel for the applicant has substance. Section 13 (2) of the Act states : "13 (2). On receipt of the report of the result of the analysis under subsection (1) 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. On receipt of the report of the result of the analysis under subsection (1) 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 14A, 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." (Emphasis supplied by me.) 5. IT is urged by Sri M. Naseerullah that the applicant could have exercised his right under Section 13 (2) of getting the sample analysed by the Central Food Laboratory only within ten days from the date of receipt of the report by him and added that since the statutory intimation under Section 13 (2) was served upon the applicant on March 29, 1976 when no case was pending against him in any Court, he was unable to make any application for analysis by the Central Food Laboratory. In my view, there is substance in the submission of the learned counsel for the applicant. The words "after the institution of prosecution" in Section 13 (2) are significant. If the intimation is sent prior to the institution of prosecution, the person from whom sample was taken will not be in a position to know where to make the application under Section 13 (2) of the Act. The law casts a duty on the Local (Health) Authority to send information and forward a copy of the report of the Public Analyst only after the prosecution has been instituted and the person concerned can make an application under Section 13 (2) within ten days of receipt of the information to the Court where prosecution is pending for getting the part of the sample preserved with the Local (Health) Authority analysed by the Central Food Laboratory. If information is sent prior to the institution of prosecution, the accused is bound to be prejudiced. 6. THE case of Bhagirathi Das v. State of Orissa, 1988 Cr LJ 260, lends countenance to my view expressed above. In Paragraph 9, K. P. Mohapatra, J. observed : "................In a decision reported in State of Orissa v. Jeeban Lal (1986) 1 Ori LR 421, it was held that Section 13 (2) of the Act is mandatory and a copy of the report of the Public Analyst to the effect that the article of food is adulterated must (have to) be supplied in the manner prescribed in Rule 9A of the Rules on the person from whom the article of food had been collected so that he may avail the opportunity of making an application to the court within the prescribed period for examination of another sample of the same food article by the Central Food Laboratory. If the procedure has not been complied with and a copy has not been served on the person concerned, prejudice must necessarily be caused to him in which case, the prosecution shall be vitiated (also see Criminal Revn. No. 297 of 1982, Khiralal Khuntia v. State of Orissa, decided on 27.10.1986). Section 13 (2) is not only of mandatory character for service of a copy of the report of the Public Analyst, but also it is mandatory that the same should be served after the prosecution is launched against the person from whom the article of food had been collected as provided therein. This view is supported by two decisions cited by Mrs. Padhi. THE first is of the Allahabad High Court reported in Jagpal Singh v. State, (1981) 2 FAC 45, in which the learned Judge held that Section 13 (2) of the Act is mandatory and the copy of the report of the Public Analyst must be sent after institution of the prosecution. THE other case is reported in P. Chockalingam v. Food Inspector, Trivandrum Corporation, 1981 Cr LJ 1225, in which a learned Judge of the Kerala High Court held that violation of the mandatory provisions of Section 13 (2) of the Act will vitiate the prosecution. He further held that Section 13 (2) does not contemplate the information being given to the vendor at any time of the choosing of the Local Health Authority. He further held that Section 13 (2) does not contemplate the information being given to the vendor at any time of the choosing of the Local Health Authority. THE section specifically states that the information must be given to him after the complaint is laid by toe Food Inspector before the appropriate court. In other words, when an accused receives a copy of the Public Analyst's report and also the information contemplated in Section 13 (2) of the Act, he must necessarily know that a prosecution against him has already been instituted. On the basis of the aforesaid principle it is to be considered if in the present case the mandatory provisions of Section 13 (2) of the Act have been complied with and copies of the report of the Public Analyst (Ex. 9) were sent to the petitioners after institution of the prosecution in the appropriate court. THE following dates and events not disputed by the petitioners and specifically pointed out by Mrs. Padhi are relevant for the purpose of discussion................Therefore as a matter of fact, it is disclosed from the records that copies of the report of the Public Analyst were delivered to the petitioners on 31.1.1979 and the prosecution was instituted on 21.2.1979. In other words, the copies were delivered before institution of the prosecution against them. No intimation was given to them that prosecution was instituted in the Court of the Sub-Divisional Judicial Magistrate, Parlakhemundi and that if they so desired they could make an application to that court for examination of another sample of the article of food by the Central Food Laboratory. In this way, the mandatory provisions of Section 13 (2) of the Act were not only violated, but also there was denial of opportunity to the petitioners to make an application before the Court of competent jurisdiction for getting another sample of the article of food analysed by the Central Food Laboratory which prejudiced their defence. So, for contravention of the mandatory provisions of Section 13 (2), whereby prejudice was caused to the petitioners in defending themselves, the prosecution was vitiated." For the above reasons, this revision is allowed. The conviction and sentences of the applicant are set aside and he is acquitted. The applicant is on bail. He need not surrender. His bail bonds are discharged. Fine, if paid, shall be refunded to the applicant. Revision allowed.