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2004 DIGILAW 245 (HP)

Puran Chand v. State Of Himachal Pradesh

2004-09-28

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. This petition is directed against the judgment dated 5.8.2004, passed by the learned Session Judge, Mandi, dismissing the appeal of the petitioner-accused (hereinafter referred as 'the accused') against the judgment dated 24.3.2003 passed by the learned Chief Judicial Magistrate, Mandi, whereby the accused has been convicted and sentenced to imprisonment for 6 months and fine Rs. 1,000/- and in default of payment of fine to undergo imprisonment for two months under Section 16 (1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). 2. Briefly stated case of the respondent-State is that on 29.5.1997, Food Inspector I.D. Verma (PW-1) purchased cow's milk from the accused in the presence of Man Singh (PW-3) for the purpose of analysis. The sample so purchased was dealt with in accordance with the prescribed procedure and on analysis by the Public Analyst was found "adultered" as it was deficient in fat as well as milk solids not fat. After due sanction of the prescribed authority, the accused was prosecuted and was finally convicted and sentenced by the learned Chief Judicial Magistrate as aforesaid. His appeal against the conviction and sentence had been dismissed by the learned Sessions Judge. Hence, this petition. 3. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also perused the records. 4. The learned Counsel for the accused assailed the impugned conviction and sentence on the following grounds : 1. That the prosecution has not complied with the provisions of Section 13 (2) of the Act, and 2. That the prosecution version is not supported by the independent witnesses, therefore, could not have been relied. Ground No. 1 5. It was contended by the learned Counsel for the accused that copy of the report of Public Analyst was not furnished to the accused as required under Section 13 (2) of the Act, therefore, prosecution case must fail for want of compliance of these mandatory provisions. 6. Section 13 (2) of the Act reads as under: "13 (2). It was contended by the learned Counsel for the accused that copy of the report of Public Analyst was not furnished to the accused as required under Section 13 (2) of the Act, therefore, prosecution case must fail for want of compliance of these mandatory provisions. 6. Section 13 (2) of the Act reads as under: "13 (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 adultered, 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." 7. Rule 9 of the Prevention of Food Adulteration Rules (hereinafter referred as 'the Rules') reads as under : "9-A. Local (Health) Authority to send report to person concerned. - The Local (Health) Authority shall (within a period of ten days) 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, to 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." 8. Apparently, these provisions are intended to afford an opportunity to the accused to get a part of the sample analysed, if so desired by him, with a view to defend himself and thus create a right in favour of the accused. Therefore, compliance of these provisions is mandatory and non-compliance thereof will be fatal to the case of the prosecution. 9. Therefore, compliance of these provisions is mandatory and non-compliance thereof will be fatal to the case of the prosecution. 9. The prosecution claims that a copy of the report of the Public Analyst was sent to the accused vide registered AD notice Ext. AD postal receipt whereof is Ext. P-13. Joginder Kumar (PW-2) has been examined to prove this version of the prosecution. PW-2 has stated that notice under Section 13 (2) of the Act, Ext. P-12 alongwith the report of Public Analyst was sent to the accused by Local Health Authority by post under registered AD cover and postal receipt about posting AD cover and postal receipt about posting of such notice is Ext. P-13. He has further stated that the registered envelope was not received back, therefore, must had been delivered to the accused. There is no other evidence about this aspect of the case. Thus, the contention for the prosecution is that in view of the notice Ext. P-12 alongwith a copy of the' report having been sent to the accused and undelivered registered envelope having not been received back .the legal presumption is that the registered envelope was delivered to the accused and requirements of Section 13 (2) of the Act, thus, had been complied with. It is the case of the accused right from the first available opportunity that he was not served with a notice and copy of report of the Public Analyst as required under Section 13 (2) of the Ad. 10. It is true that a tetter/communication sent by post on the correct address of the addresses is presumed to have been received by him if it is not received back by the sender. However, such a presumption will not arise in case the address of the addressee in the envelope is not correctly given. Moreover, such a presumption is not conclusive but is rebuttable. Therefore, before relying on the said presumption, the prosecution is to prove that the posted envelope containing the letter/communication was correctly addressed. 11. In the case in hand, the notice and report were allegedly sent to the accused under registered cover AD. The AD has admittedly not been produced in evidence. The reason assigned by PW-2 is that it was not received back. 11. In the case in hand, the notice and report were allegedly sent to the accused under registered cover AD. The AD has admittedly not been produced in evidence. The reason assigned by PW-2 is that it was not received back. Admittedly there was no attempt to get a certificate of delivery from the postal authorities nor any explanation is coming forth for not procuring such certificate. Hie address as given on the postal receipt Ext. P-13 read "Name ; Sh. Puran Chand. CFTY : Gawaii". This address evidently is. not the admitted correct address of the accused who admitted resides in a village and in not a city. These address particulars even otherwise are quite insufficient to hold that this is the correct address of the accused. 12. The notice Ext. P-12 mentions the accused as resident of village ROPI but according to PW-2 the name of the village was mentioned as ROPO in the envelope. What adds to the injury is that Exts. P-12 and P-13 or copies thereof were not filed with the complaint nor copies thereof appear to have been supplied to the accused at any point of time. These documents were produced by PW-2 at the time of his examination admittedly after taking out from an unhindered file without paging of the papers including Exts. P-12 and P-13 kept In the file and admittedly any paper could be removed or substituted on the said file at any time. This aspect gains more significance because despite being in possession of the said file PW-2 could not state as to when the Local Health Authority received information about the launching of prosecution in the case which knowledge was a prerequisite to the. sending of notice Ext. P-12 to the accused. 13. in State of H.P. v. Madan Lal, 2000 (2) Cur.L.J. (H.P.) 191 this Court is almost similar circumstances as in this case, held as under :- "12. Regarding non-compliance of the provisions of Section 13 (2) of the Act, conclusion of the learned Additional Sessions Judge that there had been no compliance of the provisions to Section 13 (2) of the Act, no fault could be found. Admittedly, there is presumption in law that a communication sent by post on the correct address of the addressee- is presumed to have been received by him if it is not received back by the sender. Admittedly, there is presumption in law that a communication sent by post on the correct address of the addressee- is presumed to have been received by him if it is not received back by the sender. However, such a presumption will not arise in. case the address of the addressee in the envelope Is not correctly given. The postal receipt about the posting of the information under Section 13 (2) of the Act in this case is Ex. PW-1/C on the record. Entry against the column 'addressed to', in this postal receipt is Barotiwala'. Evidently, the accused was at the relevant time not residing in Barotiwala but at Jhar Majari. The learned Additional Sessions Judge, therefore, was right in concluding that the legitimate conclusion in such a situation will be that the communication was not correctly addressed and, therefore, there was and compliance of the provisions of Section 13 (2) of the Act." 14. Similarly in State of H.P. v. Prem Singh, Latest HLJ 2000 (HP) 355, this Court held as under:- "12. What can be said on the basis of the postal receipt Ex. PW-1/L is that a registered envelope was posted to "Prem Singh, Mangier, Banjara. Evidently, this address does not contain the full required particulars of the accused. Therefore, on the strength of the postal receipt Ex. PW-1/L it cannot be said that the Registered AD envelope allegedly containing the notice copy whereof is Ex. PW-1/K and the report of the Public Analyst was correctly addressed. The only witness examined to prove that the requisite notice and copy of report were sent to the accused is PW-2 Praveen Kumar who has not stated (hat the registered envelope contained the correct address of the accused. It has been suggested to this witness in his cross-examination that such report and notice were not sent to the accused. In the statement under Section 313, Cr.P.C. the accused has denied the receipt of such notice and report by post. In these circumstances, particularly in the absence of proof of correct address of the accused having been given on the alleged registered envelope it cannot be presumed that the requisite intimation and copy of report of the Public Analyst were duly sent to and received by the accused. In these circumstances, particularly in the absence of proof of correct address of the accused having been given on the alleged registered envelope it cannot be presumed that the requisite intimation and copy of report of the Public Analyst were duly sent to and received by the accused. Thus the prosecution case is bound to fail for non-compliance of the provisions of Section 13 (2) of the Act and Rule 9-A of the Rules." 15. in view of the above discussion, it- is clear that there is no cogent and consistent evidence to prove that the alleged registered AD envelope contained the correct address of the accused, therefore, it cannot be presumed that the said envelope was delivered to or received by the accused. The prosecution, therefore, has failed to prove compliance of the mandatory provisions of Section 13 (2) of the Act, which is fatal to its case. Ground No. 2 16. It is not a case where no independent witness was joined by PW-1 to witness the process of taking the sample. According to PW-1, Man Singh (PW-3) was joined as an independent witness to witness the process of taking the sample. However, PW-3 has not supported the version of the prosecution regarding compliance of the Rules and prescribed procedure regulating to taking to the sample. The question, therefore, arises whether statement of PW-1 is sufficient to prove compliance of such Rules/procedure. 17. Be it stated here that provisions of Section 10 (7) of the Act make it obligatory for the Food Inspector that while taking sample he should secure presence of one or more persons at the time of taking the sample. The requirement of doing so is not an empty formality but the purpose is that at the trial, if need be, one or more of such persons is produced to corroborate the statement of Food Inspector and, thus, lend credence to the prosecution version. To achieve the objective such person(s) must be disinterested and independent. Once *the Food Inspector has joined a person to witness the process of taking the sample, the inference will be in favour of such a person being disinterested and independent as deductible from the act of Food Inspector himself joining such person to witness the process of taking the sample. Once *the Food Inspector has joined a person to witness the process of taking the sample, the inference will be in favour of such a person being disinterested and independent as deductible from the act of Food Inspector himself joining such person to witness the process of taking the sample. Therefore, if such person does not at a later stage corroborate the statement of the Food Inspector, evidence of such person can be disbelieved or termed untrue only if it is shown that he has been won over by the accused or has become interested in the accused. In case despite cross-examination of such witness by the prosecution there is nothing to suggest that the witness for some reason has turned hostile to the prosecution, it is statement of the Food Inspector, which is not supported by such witness, will be rendered suspicious and incapable of being relied to convict the accused. 18. In the case in hand, PW-3 was called, upon to witness the process of taking sample as an independent witness by PW-1, but he has not corroborated the statement of PW-1 on material particulars. PW-1 had the opportunity to cross-examine PW-3 but there is nothing in such cross-examination from which it may be inferred that it was with any ulterior motive that PW-3 has not made a true statement. 19. In conclusion, there is no independent evidence to corroborate the statement of PW-1 on material particulars. Rather it is contradicted by PW-3 who was joined as an independent witness to witness the process of taking the sample, on almost all the material particulars, therefore, conviction of the accused could not be based on the sole statement of PW-1. 20. In view of the above discussion, the Courts below have committed illegalities in applying the law and appreciating the evidence correctly which has resulted in the miscarriage of justice. Therefore, the impugned conviction and sentence cannot be sustained. 21. As a result, this petition is allowed and the impugned conviction and sentence are set aside. The accused is acquitted of the accusations against him. Fine, if recovered, be refunded to the accused.