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2004 DIGILAW 455 (GAU)

Subhash Ghosh v. State of Assam

2004-08-03

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. The Petitioner Sri. Subhash Ghosh was tried for commission of offence for storing and selling adulterated Turmeric Powder. A sample of turmeric powder was collected from the shop of M/S. Ghosh and Sons situated at Mariani. The Public Analyst found the sample to be adulterated whereupon, the prosecution was launched after obtaining necessary sanction and on conclusion of the trial, learned Addl. Chief Judicial Magistrate convicted the accused Petitioner Under section 7 / 16of the Prevention of Food Adulteration Act, 1954 (for short the Act) in C.R. case No. 171/88 and sentenced the accused-Appellant to imprisonment for 6 months and to pay a fine of Rs. 1,000/-. 2. Feeling aggrieved the Petitioner preferred criminal appeal No. 19/93 before the Sess. Judge, Jorhat who vide impugned order, affirmed the order of conviction and sentence dismissing the appeal. Hence, the present revision. 3. The sole ground on which the conviction of the Petitioner has been challenged before us, is regarding alleged non-compliance of the provisions of Section 13(2) of the Act which reads as follows: Section 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 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 Section14A, 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. 4. The matter was considered by Full Bench of this Court in the case of Ratanlal Agarwal v. State of Assam reported in (1993) 1 GLR 118 wherein, this Court held that the provisions of Section 13(2) of the Act are directory in nature. 5. Mr. 4. The matter was considered by Full Bench of this Court in the case of Ratanlal Agarwal v. State of Assam reported in (1993) 1 GLR 118 wherein, this Court held that the provisions of Section 13(2) of the Act are directory in nature. 5. Mr. Choudhury, learned senior counsel spearing for the Petitioner has placed reliance on the decision of the Apex Court in the case of State of Orissa v. Gurango Sahu, reported in 2003 Cri.LJ 3077. The Apex Court observed: 4. It is argued on behalf of the accused that mere despatch of the report is not enough; and that the prosecution is further obliged to prove that the letter so despatched had reached the addressee, i.e., the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but a statutory requirement to be mandatorily observed in all the cases. Despatch of such a report is intended to inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory. 6. In the case of K. Bhaskaran v. Sankaran reported in (1999) 7 SCC 510 the Apex Court while considering the provisions of giving notices or receipt notices had this to say: 18. On the part of the payee he has to make a demand by 'giving a notice' in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving', the travels of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days 'of the receipt' of the said notice. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. 7. It is, therefore, clear that 'giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address. 7. Provisions of Section 27 of the General Clauses Act were also considered by the Apex Court in the earlier case of State of Madhya Pradesh v. Hira Lal reported in (1996) 7 SCC 523 , the Apex Court observed that where the Respondent manages to have the notices returned with postal remarks "not available in the house", "house locked" and "shop closed" respectively, it must be deemed that the notices have been served on the Respondent. 8. Provisions of Section 138(b) N.I Act, 1881 are similar and identical with the provisions of Section13(2) of the Act as quoted above and in the case of Sridhar M.A. v. Metalloy N. Steel Corporation reported in (2000) 1 SCC 397, the Apex Court held that in appropriate cases, deemed service of notice may be accepted by the Court and this will depend on the facts of each case. 9. In the light of the above, let us examine the evidence on record. P.W. 1, the Food Inspector B.N. Pathak, has deposed that after filing of the complaint, the local authority sent a copy of the report of the Public Analyst alongwith a forwarding letter Under Section 13(2) of the Act to the accused person. Ext. 13 is a copy of the said letter. The notices were sent by registered post. Ext. 14 and 15 are the two postal receipts. Admittedly, in this case, the acknowledgement receipts were not produced before the Court but we find that the evidence of P.W. 1 at this stage, was not challenged. It was also not challenged that the Exhibit 14 and 15 are not the relevant postal receipts. 10. The provisions of the Section 27 of the General Clauses Act was considered by the Apex Court in the case of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. reported in (2001) 6 SCC 463 . The Apex Court observed as follows: 27. 10. The provisions of the Section 27 of the General Clauses Act was considered by the Apex Court in the case of Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. reported in (2001) 6 SCC 463 . The Apex Court observed as follows: 27. Meaning of service by post-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time which the letter would be delivered in the ordinary course of posts. Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. The despatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. But as the presumption is a reputable one, he has two options before him. One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee's stand and take the risk for proving that he, in fact, received the notice. It is open to the despatcher to adopt either of the options. If he opts for the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. 11. In the present case, we find that the Food Inspector has categorically deposed that notice was sent and even he produced the postal receipt which shows that notice was sent to the appropriate address. Ext. 14 and 15 are the postal receipt signed by Subhash Ghosh. Thus, the presumption is available though the prosecution and the present Petitioner did not rebut the said presumption, 12. In Rantanlal (Supra) the Full Bench of this Court held that a Criminal Court in its discretion can draw a presumption that an official Act shown to have been performed was performed regularly, that each, in accordance with requirement of law. 13. In Rantanlal (Supra) the Full Bench of this Court held that a Criminal Court in its discretion can draw a presumption that an official Act shown to have been performed was performed regularly, that each, in accordance with requirement of law. 13. In view of what has been stated above, we hold that notice Under Section 13(2) was duly sent to the Petitioner by registered post and the Court below rightly drew the presumption Under Section27(b) of the General Clauses Act that notice was received by the Petitioner-accused. 14. Hence, we find no merit in this petition. Revision petition is accordingly, dismissed. Said down the records. Petition dismissed.