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2000 DIGILAW 417 (PNJ)

Jai Bhagwan v. State of Haryana

2000-04-18

V.S.AGGARWAL

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JUDGMENT V.S. Aggarwal, J. - The present revision petition has been filed by Jai Bhagwan (hereinafter described as "the petitioner") directed against the judgment and order of sentence dated 13.11.1987 passed by the learned Chief Judicial Magistrate, Sonepat, and of the learned Additional Sessions Judge, Sonepat, dated 17.5.1988. The learned trial Court had held the petitioner guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short "the Act") and sentenced him to undergo rigorous imprisonment for eight months (and) a fine of Rs. 1000/-. In default of payment of fine, the petitioner was to undergo further rigorous imprisonment for three months. In default, the learned Additional Sessions Judge reduced the sentence to six months with no inference in the quantum of fine. 2. The facts of the present case are that Shri R.C. Arora, Govt. Food Inspector had filed a complaint under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. It was asserted that on 27.8.1983 he accompanied by Dr. S.P. Singhal, Medical Officer, Primary Health Centre, Ganaur, intercepted the petitioner at 8.30 a.m. The petitioner was having a durm containing 25 litres of cow milk for public sale. Notice was served in form VI. 600 Mls. of cow milk was purchased from the petitioner by the Food Inspector on payment of Rs. 2/-. The milk was divided into three equal parts and preservative was added. One part of the sample is sealed condition was sent to the public analyst alongwith memo in form VII through a railway parcel. The remaining two parts of the sample were deposited with the Local Health Authority. The report of the Public Analyst indicated that the milk solids not fat were deficient to the extent of 18%. From these broad facts, the complaint was filed. 3. Both the learned Judicial Magistrate and the learned Additional Sessions Judge recorded that proper sample had been taken and absence of public witness will not prove fatal. It was further held that there has been compliance of Section 13(2) of the Act. With these findings, the judgment and order of sentence were passed. The appeal has also been dismissed. Hence, the present revision petition. 4. In the present case in hand, the main controversy is as to whether there is a compliance of the provisions of sub-Section (2) of Section 13 of the Act. With these findings, the judgment and order of sentence were passed. The appeal has also been dismissed. Hence, the present revision petition. 4. In the present case in hand, the main controversy is as to whether there is a compliance of the provisions of sub-Section (2) of Section 13 of the Act. Sub-Section (2) of Section 13 of the Act reads as under :- "(2) 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 14-A, 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." 5. A bare reading of the same clearly shows that it is mandatory that after the receipt of the report of the Public Analyst a copy of the report has to be sent to the accused person informing such person that if it is so desired, either or both of them may make an application to the Court within 10 days from the date of receipt of the copy of the report and get the sample tested by the Central Food Laboratory. It is a very important right available to the accused because if he intends to challenge the report of the Public Analyst, he can take a second opinion from the Central Food Laboratory. Sub-Section (3) to Section 13 of the Act makes it clear that the report of the Central Food Laboratory would supersede to that of the Public Analyst. 6. State wanted to rely on the decision of the Madhya Pradesh High Court in the case of Jairam v. The State of M.P., 1978 Crl.L.J. 115. Sub-Section (3) to Section 13 of the Act makes it clear that the report of the Central Food Laboratory would supersede to that of the Public Analyst. 6. State wanted to rely on the decision of the Madhya Pradesh High Court in the case of Jairam v. The State of M.P., 1978 Crl.L.J. 115. In the cited case, it had been held that if there is inordinate delay in filing the complaint, then it is no ground to presume that the accused was deprived of his right to get the sample examined from the Central Food Laboratory. 7. One would hasten to add that it is always the facts and circumstances of each case that matter. 8. It is a settled principle that the provisions of sub-Section (2) of Section 13 of the Act are mandatory. In the case of Hiranand Agarwalla v. Area Food Inspector, Dibrugarh and another, 1986 Crl.L.J. 237, it was held as under :- "As in the present case, from what has been stated above it has to be held that the petitioner was denied the valuable right conferred by Section 13(2) for which he was not responsible in any way as decomposition had occurred due to defective packing, it would be highly unjust to ask the petitioner to face the trial to enable the State to find out as to why the defective packing had appeared and who was responsible for the same, for which purpose, according to the learned Public Prosecutor, the case should go back. I have come to this conclusion as the sample sent subsequently to the Director has come from the custody of the Food Inspector, and as the petitioner could not have reasonably had any hand in its defective packing. I am, therefore, satisfied that it is a fit case where the proceeding may not be allowed to be continued inasmuch as the same will only harass the petitioner without any benefit to the State in so far as the punishment for the alleged commission of crime is concerned, as the petitioner is bound to be acquitted at the end of the day on the ground of denial of right under Section 13(2) of the Act." 9. Similarly, this Court in the case of Pritam Lal v. State of Haryana, 1992(2) Crimes 941, held as under :- ".....There has thus been a clear breach of the legal provisions aforesaid. Similarly, this Court in the case of Pritam Lal v. State of Haryana, 1992(2) Crimes 941, held as under :- ".....There has thus been a clear breach of the legal provisions aforesaid. Bijaya Kumar Ram v. State is an authority for the view. It is the settled position of law that the provision of Section 13(2) of the Act is mandatory in nature which means, the copy of the report of the Public Analyst must have to be served on the shop owner from whose shop samples have been collected in accordance with Rule 9-A of the Prevention of Food Adulteration Act (hereinafter referred to as the Rules) so that he will get opportunity of one of the samples re-examined in the Central Food laboratory. Contravention of Section 13(2) of the Act, therefore, it is fatal to the prosecution. In support of the above view, I will refer to only three decisions of this Court in which several decisions of the Supreme Court and other High Courts have been discussed." 10. More close to the facts of the present case is the decision of Allahabad High Court in the case of Rajendra v. State of U.P., 1996(2) Prevention of Food Adulteration Cases 194. There was non-compliance of provisions of sub- Section (2) of Section 13 of the Act. No requisite notice was served. The petitioner was held entitled to the benefit of doubt. Same was the view expressed by the Orissa High Court in the case of M/s Mohanlal Krishna Kumar v. Cuttack Municipality, 1997(1) Prevention of Food Adulteration Cases 9. 11. In the present case in hand, the respondent has placed on record the postal receipt by virtue of which the copy of the report of the Public Analyst is stated to have been sent. It only contains the name of the petitioner and of the town. There is no further particular prescribed. It is true that ordinarily a correctly addressed letter will be delivered to the addressee. Presumption to this effect can be drawn but this is a rebuttable presumption. The statement of the petitioner cannot be ignored that he did not receive the notice. This presumption, in fact, got automatically rebutted from the fact that it was not correctly addressed. Once the notice is not correctly addressed, the presumption that it will be delivered to the addressee need not be drawn. The statement of the petitioner cannot be ignored that he did not receive the notice. This presumption, in fact, got automatically rebutted from the fact that it was not correctly addressed. Once the notice is not correctly addressed, the presumption that it will be delivered to the addressee need not be drawn. It is not shown, therefore, that the notice had been served on the petitioner and thus there was a violation of sub-Section (2) of Section 13 of the Act. A valuable right was lost to the petitioner. 12. The complaint had been filed later and the petitioner appeared much later when the notice was issued by the Court. In that event, after lapse of such a long period, the petitioner certainly can have a grievance that he could not get the second sample tested. On totality of the facts and the circumstances, it can be held that the petitioner is entitled to the benefit of doubt. 13. For these reasons, the revision petition is allowed and the impugned judgment is set aside. The petitioner is acquitted awarding him the benefit of doubt. Revision allowed.