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2003 DIGILAW 627 (MP)

Deshraj v. State of M. P.

2003-04-28

A.K.SHRIVASTAVA

body2003
JUDGMENT This revision petition has been directed by the applicant against the judgment of conviction and order of sentence dated 11.12.1993 passed by the Judicial Magistrate First Class, Panna in criminal case No. 16/91 convicting the applicant under section 7(1)/16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') sentencing him to sufferrigorous imprisonment of six months with fine of Rs. 1,500/- in default three months further rigorous imprisonment. The judgment of conviction and order of sentence has been confirmed in appeal. The Food Inspector B.D. Shukla collected a sample of cow and she buffalo milk on 2.10.1990 from the applicant and after performing all the formalities, sent the sample of milk to the public analyst, who found it to be adulterated vide its report dated 9.11.1990 (Ex. P-11). On the receipt of the report of the public analyst, the local health authority sent a letter Ex. P-10 dated 30.11.1990 to the Food Inspector for launching the prosecution. In the letter it has been mentioned by the local health authority that the report of public analyst dated 9.11.1990 has been received in his office, on 29.11.1990. The Food Inspector thereafter launched the prosecution against the applicant. The trial Court framed charges punishable under section 7(1)/16(1)(a) (i) of the Act. Needless to say, the applicant abjured the guilt. In outer to bring home the charges, the prosecution examined two witnesses. PW 1 B.D. Shukla is the Food Inspector and PW 2 Surendra Tiwari is another Food Inspector who was accompanying Shri Shukla when he collected the sample of milk from the applicant. The trial Court after considering the oral and documentary evidence came to the conclusion that the applicant did commit the offences of which he was charged and eventually passed the sentence mentioned hereinabove. Feeling aggrieved by the judgment of conviction and order of sentence, the applicant filed an appeal before the Sessions Judge, Panna, who allowed the appeal and by interfering in the quantum of punishment passed the sentence of three months rigorous imprisonment with fine of Rs. 1,500/-. Hence, this revision. In this revision petition, it has been submitted by Shri L.N. Sakle, learned counsel for the applicant that there is non-compliance of Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rule'). 1,500/-. Hence, this revision. In this revision petition, it has been submitted by Shri L.N. Sakle, learned counsel for the applicant that there is non-compliance of Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rule'). According to him it was the bounden duty of the public analyst to send his report within 40 days from the date of receipt of the sample to the local health authority. In the present case, the report has been sent after 40 days and therefore the conviction of the applicant is bad in law. Per contra Smt. Chanchal Sharma, learned panel lawyer has contended that there is no infirmity in the judgments passed by the Courts below. The revision is devoid of any force and deserves to be dismissed. After hearing the learned counsel for the parties, I am of the view that this revision petition deserves to be allowed. The first submission of learned counsel for the applicant is taken into consideration that on account of non-compliance of Rule 7(3) of the Rules, the applicant is entitled for the acquittal, does not impress me. In the case of State of M.P. v. Ganesh Prasad 2000 (1) JLJ 406 , this Court while dealing with the non-compliance of Rule 7(3) of the Rules, held in para 6 and 7 as under :- "6. The second finding of the learned trial Magistrate that the accused/respondents are not liable to be prosecuted and convicted for non-compliance of the provisions of section 7(3) of the Act, is indeed unsustainable in law. The counsel for the accused/respondent No.1 has rightly conceded that this finding and consequently acquittal of the accused/respondents on the basis of such finding was not proper. The learned Magistrate has observed that by not sending the report of the Public Analyst within the stipulated period of 45 days, the prosecution has violated the provisions of section 7(3) of the Act. It appears that the learned Magistrate by mistake quoted section 7(3) of the Act. Indeed it should have been Rule 7(3) of the Rules. The Supreme Court in P. V. Usman v. Food lnspector Pelicheri Muncipality [1994 SCC (Criminal) 187] has held that the provisions prescribing period of 45 days under Rule 7(3) are not mandatory and fatal unless accused establishes that prejudice was caused to him on account of such delay. Indeed it should have been Rule 7(3) of the Rules. The Supreme Court in P. V. Usman v. Food lnspector Pelicheri Muncipality [1994 SCC (Criminal) 187] has held that the provisions prescribing period of 45 days under Rule 7(3) are not mandatory and fatal unless accused establishes that prejudice was caused to him on account of such delay. The provisions are directory and hence noncompliance thereof shall not vitiate the prosecution unless it takes away the right of the accused under section 13(2) of the Act. In view of the above pronouncement of the Apex Court, the finding of learned Magistrate that the trial has been vitiated for non-compliance of the provisions of Rule 7(3) of the Rules cannot be sustained." In the present case also there is nothing on record so as to demonstrate that the applicant was prejudiced on account of such delay. In this view of the matter, even if there was non-compliance of Rule 7(3) of the Rules, the same was not fatal to the prosecution. The another facet of the case is of the non-compliance of section 13(2) of the Act. Though Ex. P-13 has been filed by the prosecution indicating that notice under section 13(2) of the Act was sent to the accused but there is no proof of the receipt. Ex. P-13 does not contain the signature of the accused. There is no document indicating that by which mode, the notice was sent to the accused/applicant. A Court of law cannot assume that if a copy of letter exists on the record of the office, the letter must have been sent. There is no such presumption that official course of business must have been followed does not extend to the fact that when a copy of a document is in official record, that copy's original must have been sent to anybody to whom it has been addressed or must have reached there. It has not been established that the original of Ex.P-13 was tendered at some post office for delivery of the accused by registered post and no postal receipt and the acknowledgment due slip has been produced. It has not been established that the original of Ex.P-13 was tendered at some post office for delivery of the accused by registered post and no postal receipt and the acknowledgment due slip has been produced. Thus, the mandatory provision of section 13(2) of the Act regarding sending of intimation about Public Analyst inviting the accused to take option in the Court regarding sending of any sample to Central Food Laboratory had not been complied and therefore, on this ground the conviction of the applicant cannot be maintained. In this context, it shail be profitable to refer to the decision of this Court in the case of Ghallsu v. State of M.P. 1999 (II) MPWN 17 = 1999 (l) MPLJ 613, and Rahees v. State of M.P. 1998 (I) MPWN 119. In the result, the revision succeeds and is hereby allowed. The conviction of the applicant is set aside. The applicant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him.