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2004 DIGILAW 508 (GAU)

Uttam Mazumdar v. State of Assam

2004-09-02

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. This revision is directed against the judgment and order dated 17.3.97 passed by the learned Sessions Judge, Nagaon, in Criminal Appeal No. 3(N)/97 dismissing the appeal. 2. On 24.4.1990 the Food Inspector, Nagaon collected samples of rice from the shop premises of Harparbati Bhandar owned by the Petitioner Uttam Mazumdar. On analysis, the public analyst found the sample to be adulterated as the sample contained damaged grain 9.7%, insect damaged grains 4.68%, live insects 100 numbers and dead insects 300 numbers. The sample was, therefore, held to be adulterated, as it does not comply with the standards laid down in Appendix B of the Prevention of Food Adulteration Rules (for short the Rules). 3. The trial court, on conclusion of the trial, convicted the accused Petitioner for commission of offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (for short the Act) and sentenced the accused Petitioner to imprisonment for 6 months and to pay a fine of Rs. 1000/- in default further imprisonment for one month. Feeling aggrieved, the convict preferred Criminal Appeal No. 3(N)/97 and the learned Sessions Judge, Nagaon vide impugned order upheld the order of conviction and sentence and dismissed the appeal and hence the present revision. 4. In the present case, we find that the inspection by the Food Inspector and taking of the sample of rice from the shop belonging to the Petitioner accused has been deposed to by the Food Inspector and this has been admitted by the Petitioner accused Uttam Mazumdar in his statement recorded under Section 313 Code of Criminal Procedure. The report of the public analyst Ext. 9 has also not been challenged and as such in view of the above admitted facts and the concurrent findings of facts by the court below, the learned Counsel appearing for the Petitioner have challenged the impugned order of conviction and sentence, on two counts. 5. Referring to the evidence of the Food Inspector, Dambarudhar Bora, PW1 wherein the Food Inspector has admitted that he did not prepare any Inspection report as required under Section 9(e)of the Rules, the learned Counsel has submitted that as the Food Inspector has failed to discharge his duties as required under the law, the entire prosecution is liable to be quashed. In support of his submission, the learned Counsel has placed reliance on a decision of this Court in the case of State of Assam v. Radha Oil Industries (1987) 1 GLR 134; wherein this Court held 'if the Food Inspector has failed to perform his duty enjoined by Rule 9(e) of the Rules, where is the guarantee of purity of his action in taking the sample and an adverse inference must be drawn against the witness for non-performance of his statutory obligation.' 6. The above plea was raised before the trial court and the trial court had this to say: The duty under Rule-9(e) is for preparation of the inspection report and deposit of the same with the Local Health Authority. It is not necessary for the Food Inspector to produce his inspection report before the court. Although the same was admittedly not maintained by the Food Inspector, action taken by him in the performance of his duties including the taking of the sample in the instant case has been amply demonstrated so as to exclude doubt by his oral evidence. There is nothing in cross-examination of PW 1 casting a doubt about the truthfulness of his evidence nor even a whisper of suggestion that non-maintenance of the inspection report had necessarily vitiated the prosecution. There has been no demonstration by the accused that non-compliance of Rule 9(e) has virtually caused prejudice to him. Since the accused failed to establish material prejudice by non-maintenance of the inspection report so it cannot be held that non-compliance of direction in Rule 9(e) would necessarily imply a prejudice to accused. 7. The question was again agitated before the Sessions Judge and the learned Session Judge had this to say: The decision in Radha Oil Industries case (1997) 1 GLR 134 is not an authority for the proposition that in all cases involving failure of Food Inspector to maintain the record, or that in all cases involving failure to produce the record in Court, adverse inference can be drawn. Whether adverse inference can be drawn depends on the facts and circumstances of each case and the nature and quality of the evidence of the Food Inspector and the other evidence in the case.... Whether adverse inference can be drawn depends on the facts and circumstances of each case and the nature and quality of the evidence of the Food Inspector and the other evidence in the case.... ...The decision in Radha Oil Industrial case (1997)1 GLR 134 , cannot be understood as laying down a principle of law of general or invariable application and must be confined to the facts of that case. 8. We find that the question regarding Rule 9(e) of the Rules was considered by the Division Bench of this Court in the case of Jitmal Maheshwari v. State of Assam (1993) 1 GLR 397 & the Division Bench had this to say: Bearing in mind the purpose of the Act and Rule 9 in general, the purpose sought to be achieved by Clause (e) and the consequences of holding it to be mandatory, or directory with respect, we agree with the view expressed in Pawan Kumar Agarwall's case (1992) 2 GLR 118 , that Rule 9 (e) is not mandatory. The decision in Radha Oil Industries case (1987) 1 GLR 134 is not an authority for the proposition that in all cases involving failure of Food Inspector to maintain the record, or that in all cases involving failure to produce the record in court, adverse inference can be drawn. Whether adverse inference can be drawn depends on the facts and circumstances of each case and the nature and quality of the evidence of the Food Inspector and the other evidence in the case. 9. In the present case, we find that collection of the sample has not been disputed and both the courts on consideration of the facts and evidence on records held that the non-maintenance of the inspection report has no way prejudiced the accused and has also not affected the testimony of the Food Inspector in any manner. 10. The next contention of Mr. Choudhury is regarding alleged non-compliance of the provisions of Section 13(2) of the Act. The Food Inspector has deposed that after filing of the complaint, a notice under Section 13(2) of the Act was served on the Petitioner as well as on the firm. Ext. 12 and Ext. 13 are the copies of the notice, which was sent by registered post and the postal receipts, are Ext. 14 and 15. Ext. The Food Inspector has deposed that after filing of the complaint, a notice under Section 13(2) of the Act was served on the Petitioner as well as on the firm. Ext. 12 and Ext. 13 are the copies of the notice, which was sent by registered post and the postal receipts, are Ext. 14 and 15. Ext. 16 is the acknowledgment receipt in respect of the notice sent to Uttam Mazumdar. The trial court as well as the appellate court on consideration of the materials on record held that the provisions of Section 13(2) was considered by this Court in Criminal Revision No. 559/96 disposed of on 14.6.2004 wherein this Court held: 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 appearing 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 travails of the prosecution would have been very much lessened. 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 travails 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. 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 Section 13(2) 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. 11. On consideration of the materials on record and on perusal of the Ext. 12, 13, 14, 15 and 16, we find that the provisions of Section 13(2 ) of the Act were fully complied with in this case and the Petitioner is not entitled to any benefit on that count. 12. In the result, we find no merit in this revision petition and the revision petition is accordingly dismissed. The Petitioner is directed to surrender forthwith before the Chief Judicial Magistrate, Nagaon and serve out the sentence and pay the fine. Send down the records to the Chief Judicial Magistrate, Nagaon for doing the needful in the matter. Petition dismissed