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Madhya Pradesh High Court · body

2003 DIGILAW 794 (MP)

Ramesh Khati v. State of M. P.

2003-06-30

S.L.KOCHAR

body2003
Judgment ( 1. ) THIS revision has been filed by the applicant against the judgment dated 6-5-2003 passed by the Additional District and Sessions Judge, Dewas in Cr. Appeal No. 175/2000 arising out of the judgment and order dated 28-9-2000 passed by the Judicial Magistrate First Class, Dewas in Cr. Case No. 100/99 thereby convicting the applicant for the offence under Section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act (for brevity the Act) and sentencing to R. I. for six months and fine of Rs. 1,000/-, in default of payment of fine to suffer additional S. I. for one month. ( 2. ) THE prosecution case in nut-shell was that on 24-2-89, in Village Rajoda at 7. 30 AM Food Inspector, R. S. Kelkar (P. W. 1) took sample from the applicant and after completion of sampling formalities sent the same for analysis to the Forensic Science Laboratory. After receipt of analysis report (Ex. P-10), he filed the prosecution against the applicant. ( 3. ) THE applicant abjured his guilt and therefore, he was put to trial. The learned Trial Court, after examining the prosecution witnesses and hearing both the parties, convicted and sentenced the applicant as mentioned above. The same judgment has been affirmed by the Lower Appellate Court. Therefore, this revision. ( 4. ) LEARNED Counsel for the applicant has submitted that there is absolutely no positive legal evidentiary proof adduced by the prosecution for compliance of mandatory provisions of Rules 17 and 18 of the Prevention of Food Adulteration Rules (for brevity the Rules), regarding sending of sample and its seal separately. According to him, no documents have been filed to establish the compliance of this provision. Food Inspector, Kelkar (P. W. 1) has given oral evidence and also stated that the copy of the receipt is enclosed, but no such receipt was filed before the Trial Court and got exhibited. He has further pointed out that the sample was taken on 24-2-89, but when it was sent, no copy of Form No. 7 as per requirement of Rules 17 and 18 of the Rules has been filed in the Court. He has further pointed out that the sample was taken on 24-2-89, but when it was sent, no copy of Form No. 7 as per requirement of Rules 17 and 18 of the Rules has been filed in the Court. Mere oral statement of Food Inspector would not be sufficient to prove this mandatory provision specifically when in the cross-ex-amination, positive suggestion has been given by the applicant that no such sample and seal was every sent to the Forensic Science Laboratory separately. He has further pointed out regarding sample to the FSL that the only fact is mentioned in Ex, P-8, which was addressed to the Local Health Authority regarding depositing of remaining two bottles of sample. This document is showing that these two bottles of sample were deposited with the Local Health Authority on 25-2-89. Further alarming feature in the present case is that FSL Report (Ex, P-10) is showing the date of receipt of sample by the Public Analyst, i. e. , 25-4-89. Therefore, if really the sample was sent on 25-2-89, it would have not taken such a long time for reaching at Bhopal from Dewas. This FSL Report (Ex. P-10) has been received by the Dy. Director, Health, Dewas on 30-5-99. On this document (Ex. P-10), the date of receipt is mentioned. ( 5. ) LEARNED Counsel has further putforth that there is no compliance of Section 13 (2) of the Act because, the Postal Receipt (Ex. P-15) regarding sending of copy of the FSL Report to the applicant is not disclosing his full address. He has also argued that the sanction for prosecution (Ex. P-12) has also not been proved in the case in accordance with law. Therefore, the conviction of the applicant is bad in law. ( 6. ) ON the other hand, learned Dy. Advocate General Shri Desai for the State has submitted that there is full and proper compliance of all the required rules. Above all, he has supported the judgment passed by both the Courts below. ( 7. ) HAVING heard learned Counsel for the parties and having perused the entire record this Court is of the view that there is no substance in the submission of the learned Counsel for the applicant regarding sanction document (Ex. P-12 ). Above all, he has supported the judgment passed by both the Courts below. ( 7. ) HAVING heard learned Counsel for the parties and having perused the entire record this Court is of the view that there is no substance in the submission of the learned Counsel for the applicant regarding sanction document (Ex. P-12 ). This document has been duly and properly proved by the Food Inspector, Kelkar (P. W. 1) who has stated in cross-examination that the sanction is duly signed by the Dy. Director. So far as the proof of sending of copy as per provision of Section 13 (2) of the Act is concerned, Rajesh Saxena (P. W. 2) has filed and proved the postal receipt. On this receipt the name of the applicant and his name of the village are also mentioned. Learned Counsel has stated that in Dewas District, there are eight to ten villages of the same name, i,e. , Barkheda. Therefore, in the postal receipt the mentioning of Village Barkheda is not sufficient to establish that the same was delivered to the applicant. This Court does not find any force in this argument because, in the receipt given by the Post Office, the name of the applicant and village is mentioned. The exact address must have been mentioned in the Registered Envelope. Regarding non-compliance of Rules 17 and 18 of the Rules, this Court finds sufficient force in the arguments advanced by the learned Counsel for the applicant. In the Court, copy of the memorandum as required by the provision of Form No. 7, has not been filed. The oral statement of Food Inspector is not sufficient to establish the compliance of mandatory provisions of Rules 17 and 18 of the Rules regarding sending of sample and seal separately by Registered Post. Though the Food Inspector has stated that the receipt is annexed but, in the record, no such receipt is available and in his deposition, the same has not been marked and exhibited. This shows that no such receipt was filed before the Trial Court. His bald statement about compliance of these provisions is not sufficient to rely. The prosecution should have filed the copy of this memorandum as well as postal receipt. It is pertinent to note here that no such postal receipt has been filed to establish that the sample and seal were sent separately. ( 8. His bald statement about compliance of these provisions is not sufficient to rely. The prosecution should have filed the copy of this memorandum as well as postal receipt. It is pertinent to note here that no such postal receipt has been filed to establish that the sample and seal were sent separately. ( 8. ) ONE more fact is more important, i. e. , if really the sample was sent on 25-2-89, as mentioned in the document (Ex. P-8), then the same would not have reached to the Forensic Science Laboratory, Bhopal on 5-4-89. This time-gap is showing something fishy with the matter and the same has not been properly and legally explained by the prosecution. The applicant has given positive suggestion to Food Inspector in Para 6 of his examination that he had not sent any sample to Public Analyst and also not sent the seal separately. The suggestion was also given that a false and Bogus Analysis Report (Ex. P-10) was filed before the Court. ( 9. ) NON-COMPLIANCE of Rules 17 and 18 of the Rules is fatal to the prosecution and, therefore, the applicant is entitled to acquittal. [see : Sitaram Mittal v. Roda s/o Balaram, 2000 (2) FAC 88 (M. P. High Court) and Balakram v. State of U. P. , 1997 (1) FAC 183]. ( 10. ) IN view of the discussion as aforesaid, this revision deserves to be allowed and it is hereby allowed. The judgment and order of the Courts below are set aside. The applicant is directed to be released forthwith if not required in any other case. Fine, if realised, or deposited, shall be refunded to him. ( 11. ) A copy of this judgment be transmitted to the Trial Court alongwith the record for compliance, immediately.