Research › Browse › Judgment

Allahabad High Court · body

1996 DIGILAW 985 (ALL)

Ram Bilas v. State

1996-09-03

A.S.GILL

body1996
Judgment : A.S. Gill 1. THIS original revision challenges the order dated 2nd May, 1983, passed by the 8th Additional Sessions Judge, Sitapur in Criminal Appeal No. 120 of 1982, dismissing an appeal against the judgment dated 23rd August, 1982, passed by Special Judicial Magistrate, 1st Class, Sitapur, confirming the conviction and sentence of the petitioner under Section 16 of the Prevention of Food Adulteration Act. 2. THE petitioner was running a grocery shop in Mohalla Nanak Mandi, Sitapur Town and on 24.9.78 Food Inspector after disclosing his identity as such purchased 750 grams of mustard oil and took the same in possession as samples in accordance with the rules. Later on, on receipt of Public Analyst report, which confirmed that the sample of the mustard oil contained 'Tisi Tel' (oil) to the extent of 8 per cent and that the mustard oil was adulterated one. After due formalities prosecution was launched and the petitioner was convicted of the offence and sentenced to rigorous imprisonment of six months and a fine of Rs. 1,000, in default of fine further rigorous imprisonment for a period of two months. THE petitioner challenged his conviction and sentence before the learned Sessions Judge in appeal, which was dismissed. Learned counsel for the petitioner has urged two pleas in this revision petition, firstly, that the petitioner has been deprived of his right under Section 13 (2) of Prevention of Food Adulteration Act on account of delay in launching prosecution against him and secondly, that the sanction to prosecution has not been proved, which vitiates the whole trial. 3. LEARNED counsel for the petitioner and learned Government Advocate have been heard. It is no doubt true that the prosecution case was launched some what after lapse of few months after receipt of report of Public Analyst. But whether such delay is fatal to this case, is to be seen. The sample was taken on 24th September, 1978 and the Public Analyst report is dated 28th October, 1976. The sanction Ex. Ka-7 was accorded on 20th March, 1979 and complaint was lodged on 7.4.79. The prosecution had proved that the copy of the report was forwarded to the petitioner on 3.5.79 vide Ex. Ka-8. 4. The sample was taken on 24th September, 1978 and the Public Analyst report is dated 28th October, 1976. The sanction Ex. Ka-7 was accorded on 20th March, 1979 and complaint was lodged on 7.4.79. The prosecution had proved that the copy of the report was forwarded to the petitioner on 3.5.79 vide Ex. Ka-8. 4. LEARNED counsel for the petitioner has relied upon the decisions in Jagdish v. State of U. P., 1991 ACrC 82 and Desh Raj v. State of U. P. and another, 1985 ACrC 109. In case Jagdish v. State of U. P. (supra), it was a sample of Jalebi and there was no evidence if any preservative was added and on such the delay in launching the case was presumed to defeat the right of the accused under Section 13 (2) of the Act and it was held that nothing useful and productive would have been achieved by availing the right of Section 13 (2) by the accused, as after a gap of nine months the samples of Jalebi must have decomposed and must have become unfit for analysis. Similar in case of Desh Raj v. State of U. P. (supra), the sample taken was of cow's milk. The delay in filing the complaint and sending of copy of the report of the Public Analyst to the accused person was considered as negativating the right of accused under Section 13 (2) of the Act as the sample lying with the health authorities must have decomposed by that time. However, in the instant case, the sample is that of mustard oil and there is no plea or suggestion that the sample could have deteriorated in its condition in any 1 manner during the time it was left lying with the health authorities till launching 1 prosecution against the petitioner. The learned counsel contends that the copy of the Public Analyst report was sent to him on 3.5.79, 27 days after filing of the complaint. Be that as it may, the petitioner did not choose to challenge the report by moving an application for sending of the other sample bottle for analysis of the Central Food Laboratory. The learned counsel contends that the copy of the Public Analyst report was sent to him on 3.5.79, 27 days after filing of the complaint. Be that as it may, the petitioner did not choose to challenge the report by moving an application for sending of the other sample bottle for analysis of the Central Food Laboratory. In a decision in Tulsiram v. State of Madhya Pradesh, AIR 1985 SC 299 , while considering Rule 9A of Food Adulteration Rules, 1955, the Hon'ble Supreme Court observed : "The expression 'Immediately" in Rule 9A is intended to convey a 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 under Section 13 (2) In good and sufficient time before the prosecution occurrence leading evidence. Noncompliance with Rule 9A is not fatal. It is a question of prejudice." Similarly, the Hon'ble Supreme Court in another decision in Jagdish Prasad v. State of West Bengal, AIR 1972 SC 2044 , observed that "where no application is made under sub-section (2) for sending the sample to the Director of the Central Food Laboratory, and the report of the Public Analyst is not superseded under sub-section (3) by the certificate of the Director, a conviction of the accused of the basis of the report of the Public Analyst and on his evidence would be proper." The petitioner could very well establish the denial of his right under Section 13 (2) on account of delay in forwarding the report of the Public Analyst to him, if on an application the other sample bottle had been examined and a report of the Director of Central Food Laboratory had confirmed that the sample has become unfit for analysis. As such, it is not a case of any prejudice caused to the petitioner by delay, If any, in forwarding the report of the Public Analyst to him. 5. THE other contention of learned counsel for the petitioner that sanction for prosecution has not been proved, is also without any merits. THE statement made by the Food. Inspector mentions that he has placed before the C.M.O. all the papers, who after satisfying himself accorded the sanction in his own handwriting for prosecution of the accused, which he proved so Ex. Ka-7. THE statement made by the Food. Inspector mentions that he has placed before the C.M.O. all the papers, who after satisfying himself accorded the sanction in his own handwriting for prosecution of the accused, which he proved so Ex. Ka-7. There is, thus, sufficient compliance of the proof of the sanction, if the C.M.O. had perused the papers and accorded sanction in the presence of Food Inspector and had signed the same. In such cases, even if the Food Inspector does not mention that he is acquainted with the signature of the C.M.O., is of no consequence, when he proved that the sanction was accorded in waiting by the C.M.O. in his presence. Learned counsel states that the signatures of C.M.O. on sanction Ex. Ka-7 are different as are on Ex. Ka-8, which is the forwarding letter Issued by the C.M.O. to the petitioner forwarding the report of the Public Analyst and informing him of his right to get the other sample tested under Section 13 (2) of the Prevention of Food Adulteration Act. These signatures have duly been proved by the clerk of C.M.O., who identified C.M.O.'s signature on Ex. Ka-8. Admittedly, the signatures on the forwarding letter are initials whereas on the sanction, there are the full signatures of the C.M.O. and obviously they cannot tally in appearance. 6. LEARNED counsel also relied upon a decision In Krishna Lal v. State, 1978 ACrC 256. However, the authority is distinguishable simply because the sanction order was written in different ink and the signature of the health authority was in different ink and it was held that there was lack of application of mind in the case as the health authority appears to have simply signed the document, which was written by some one else. The petitioner has admitted the taking over of sample from his shop of the mustard oil. He did not choose to challenge the report of the Public Analyst through the court under Section 13 (2) of the Act and as such in revision now to say that there is delay in sending or forwarding to report or the sanction has not been proved, is hardly of any consequence in view of consistent finding of fact of both the courts below. 7. IN view of what has been discussed above, there is no merit in this revision petition and the same is dismissed. 7. IN view of what has been discussed above, there is no merit in this revision petition and the same is dismissed. The interim order dated 6.5.1983 stands vacated.