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1999 DIGILAW 889 (ALL)

JAMEEL v. STATE OF UTTAR PRADESH

1999-07-05

B.K.SHARMA

body1999
B. K. SHARMA, J. ( 1 ) THIS is a revision against the judgment and order dated 28/06/1984 passed by the Shri Sushil Kumar, the then Sessions Judge, Muzaffarnagar in Criminal Appeal No. 28 of 1984 whereby he dismissed the appeal and upheld the conviction of the accused-revisionist in Criminal Case No. 1139/9/83 under S. 7/16 of the Prevention of Food Adulteration Act on 3-2-1984 by Shri J. C. Misra, the then Special Judicial Magistrate (Economic offences), Muzaffarnagar sentencing him to undergo rigorous imprisonment for a period of six months under Section 7 (1), 16 (i) ( (a) (i) of the Prevention of Food Adulteration Act and a fine of Rs. 1000. 00 and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months. ( 2 ) THE prosecution case was that the Food Inspector Sri M. P. Singh on 29-11-1980 at about 8. 15 a. m. took sample of mixed milk of cow and buffalo which was being offered for sale by the accused revisionist in front of Soliders Board building within Muzaffarnagar, that the Food Inspector took, the sample performed the formalities and the report of the Public Analyst showed that the sample was deficient by 9% in fat and by 15% in non-fatty solids. Thereafter, the Food Inspector submitted a report to the local health authority who granted the sanction and complaint was filed. The case came up for trial and ended in conviction and then a remand was made by the lower appellate Court and after it, the case was tried summarily and the conviction was made again on 3-2-1984 by the trial Court and the appeal, having been dismissed by the Sessions Judge, Muzaffar-nagar, the present revision has been filed in this Court. ( 3 ) IN this revision, the learned counsel for the accused revisionist has argued that there was non-compliance of Rule 7 (3) framed under the Prevention of Food Adulteration Act which obliges the public analyst to deliver to the Local (Health) Authority a report of the result of analysis of the sample sent to him with a period of fortyfive days from the date of receipt of the sample for analysis. It has been pointed out that in this case, the sample was received by the public analyst on 2-12-1980 and it was examined by it on 5-1-1981 and that its report reached in the office of the Chief Medical Officer concerned on 24-1-1981 which was beyond 45 days. It has been argued that this provision is mandatory. The legal position in this regard is that the provisions prescribing period of 45 days in Rule 7 (3) is not mandatory on account of such delay and substantial compliance is sufficient. In this regard, reference, may be made to the case of T. V. Usman v. Food Inspector Tellicherry Municipality, Tellicherry reported in AIR 1994 SC 1818 . That being so, this point as such cannot be of help the accused revisionist. ( 4 ) THE next argument of the learned counsel for the accused revisionist is that there is non-compliance of Section 13 (2) of the Prevention of Food Adulteration Act, 1954, as it stood at the relevant time, which runs as follows :-"on receipt of the report of the result of the analysis under sub-section (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 or 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. " ( 5 ) THE relevant rule, as it stood at that time, was Rule 9-A which runs as follows :-"9a. " ( 5 ) THE relevant rule, as it stood at that time, was Rule 9-A which runs as follows :-"9a. Local (Health) Authority to send report to person concerned :- The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act. " ( 6 ) THE factual position is that in this case a letter was sent by the District Health Authority (Muzaffarnagar) by registered post A. D. to the accused-revisionist on his correct address on 13-3-1981. It came back in the office with an English endrosement "avoid to take delivery Sender". There was an endorsement in Hindu on it also "kai Bar Jane Par Bhi Prapt Karta Nahi Mila. Atah Wapas Hai". This Hindi endorsement bears the initial and date 26-3-81. It is this Hindi endorsement which appears to be made by the Postman and the other endorsement in English appears to be made by the office on the basis of the same. ( 7 ) NOW the question is whether this is a sufficient compliance of the provisions of Section 13 (2) of the Prevention of Food Adulteration Act. The contention of the State is that if a person avoids to take delivery, it is sufficient delivery and there was no necessity to send it back again to it (the accused-revisionist) that if a person is bent upon refusing to take delivery, no purpose would be served by sending it again and again. In my view if a letter had been sent and it were to come back with a categorical endorsement of the post-man that the addressee was tendered the letter but he refused to take the delivery thereof, there will be a presumption of service, no doubt but here the position is not that. The endorsement, which had been made by the post-man, only indicated that be had gone to the address of the addressee several times but at no pont of time, he found the addressee. The endorsement, which had been made by the post-man, only indicated that be had gone to the address of the addressee several times but at no pont of time, he found the addressee. From the endorsement made, it cannot follow that the addressee was in the house or kept away to avoid having to take the delivery of letter. If the endorsement had been that the addressee stated that the letter may be brought again for delivery to him, it might have been an avoidance to take delivery but his absence from the house cannot lead to the presumption of service. If the letter had been delivered to a person belonging to the house-hold of the addressee, even that might have been taken a sufficient service on him and it might have been presumed that it reached the hands of the addressee and in that case it might have been the burden on the addressee to show that it was not so. But here the endorsement of the post office does not show any service. The rule provides two alternative modes of service one by hand and the other by registered post. It was open for the concerned Local (Health) Authority to send the notice again by registered post at the address of the addressee or he could send it by the other mode contemplated method under the rule and when none of these two steps were taken by him, there is non-compliance of provisions of Section 13 (2) of the Prevention of Food Adulteration Act and Rule 9a framed thereunder as it existed at the relevant time. The provisions of Section 13 (2) of the Prevention of Food Adulteration Act remains the same and now after the amendment Rule 9a has been renumbered as Rule 9b but the contents remain the same even now. By provision of Section 13 (2) of the Prevention of Food Adulteration Act, a very important right has been given to the accused who is facing trial, to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory by making an application to the Court within a period of ten days from the date of receipt of the copy of report. The requirement is to forward a copy of the report to the person from whom the sample was taken, by registered post or by hand or by both, which may be appropriate. So the accused-revisionist is deprived of his right to move an application under that provision. This consequently vitiates the conviction of the accused-revisionist. ( 8 ) CONSEQUENTLY, the revision is allowed. The judgment orders dated 3-2-1984 and 28-6-1984 passed by both the Courts below are set aside. The accused-revisionist Jameel is acquitted of the offence under Section 7/16 of the Prevention of Food Adulteration Act. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. ( 9 ) COPY of this judgment be sent to the Sessions Judge concerned for information and compliance. Petition allowed. .