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2006 DIGILAW 230 (UTT)

PREM CHAND v. STATE OF UTTARANCHAL

2006-05-08

J.C.S.RAWAT

body2006
JUDGMENT Hon'ble J.C.S. Rawat, J. This Criminal Revision has been directed against the judgment and order dated 10.11.1987 passed by Shri D.C. Srivastava, the then Sessions Judge, Tehri Garhwal, dismissing the Criminal Appeal No. 6 of 1987 and confirming the order and judgment dated 20.04.1987 passed by the learned Chief Judicial Magistrate, Tehri Garhwal in Criminal Case No. 40 of 1984 State Vs. Prem Chand u/s 7/16 of Prevention of Food Adulteration Act and sentencing the revisionist to undergo R.I. for a period of 1 year and to pay a fine of Rs. 2000/- in default of payment five months further R.I. 2. Brief facts for the disposal of this revision are that the Food Inspector took the sample of milk of cow and buffalo on 14.11.1983. Thereafter the said milk was sent to the Public Analyst for its examination. According to the report, the said milk was found adulterated within the definition of the Food Adulteration Act. Thereafter sanction was obtained from the C.M.O. and the complaint was filed before the court. During the trial the learned Magistrate framed the charges and the revisionist denied the allegations made in the complaint and claimed the trial. 3. Thereafter, the prosecution examined the evidence of J.L. Naithani, the Food Inspector-PW1 who took the sample of the milk and also examined Jagdish Prasad Badoni as PW2 who was present at the time of taking the sample of the milk and he signed the Form-2 by which the milk was taken on sale from the revisionist. The revisionist also signed the paper pertaining to the purchase of milk by the Food Inspector. The prosecution also examined Murti Singh Pundir-PW2 who had proved that the notice u/s 13 (2) of the Prevention of Food Adulteration Act was sent to the revisionist and it was not received and he also filed the receipt of the registered letter. 4. The accused was examined u/s 313 Cr.P.C. and he denied all the allegations made in the evidence and stated that he was not carrying the milk for sale. He was bringing the milk from his relatives for being used by his children. The revisionist-accused in his defence adduced the evidence of himself as DW1 and Bhim Singh DW2 in support of his contention. 5. On the appreciation of the evidence, learned Magistrate passed the aforesaid sentence. He was bringing the milk from his relatives for being used by his children. The revisionist-accused in his defence adduced the evidence of himself as DW1 and Bhim Singh DW2 in support of his contention. 5. On the appreciation of the evidence, learned Magistrate passed the aforesaid sentence. Feeling aggrieved by the said conviction and sentence, the revisionist preferred appeal before the learned Sessions Judge. The learned Sessions Judge dismissed the appeal and confirmed the judgment and order passed by the trial court. 6. The learned counsel for the revisionist contended that no notice u/s 13 (2) of the Food Adulteration Act was served upon the revisionist and he also contended that the Act provides the minimum sentence and the provisions of the said Act are very stringent. In case, the provision of the provision of the Act is stringent in that case the prosecution had to prove every facts to the satisfaction of the court so that minimum sentence could be passed. The learned A.G.A. refuted the contention. Section 13 (2) of the Food Adulteration Act confers valuable right on the seller of article to get the sample analysed by the Central Food Laboratory. If there is any violation to the said provisions, the seller of the article of food in question would not be in a position to exercise his valuable right conferred u/s 13 (2) of the Food Adulteration Act in effective manner. In the instant case, the prosecution was launched and thereafter, it is in the evidence that a letter containing the report of the Public Analyst was sent to the revisionist. The revisionist has denied the receipt of the said report and he had contended before the court below that he had not received any notice and his valuable right had been infringed by not receiving the said notice u/s 13 (2) of the said Act. Both the courts below have come to the conclusion that the copy of the report of the Public Analyst was sent to the revisionist under the registered post at a correct address. Both the courts below had held a presumption could be drawn that the said letter/notice reached to the revisionist who did not exercise his right to get the sample examined by the Central Food Laboratory. Both the courts below had held a presumption could be drawn that the said letter/notice reached to the revisionist who did not exercise his right to get the sample examined by the Central Food Laboratory. It was further observed by the courts below that the revisionist had not taken a case that he received the only registered cover without containing any copy of the report. Both the courts below came to the conclusion that the prosecution is not bad for want of notice of Section 13 (2) of the Food Adulteration Act. In the instant case, Murti Singh Pundir-PW2 was produced and he stated in his evidence that he was working in the C.M.O. office and he sent the letter containing the public Analyst report to the revisionist from the C.M.O. Office. He sent he letter and entered it in the Despatch register. He proved the entry of said letter in Despatch Register. He had further stated that he did not know as to whether the said letter came back to the C.M.O. office unserved or not. This fact, itself demolishes the findings of both the courts below. The presumption of being delivered to the revisionist could only be gathered if it was proved that the said letter alongwith the report was sent at the correct address. It was further to be proved by the prosecution that the said letter had not been received back in the office of the C.M.O. unserved. The prosecution should have produced someone who would have stated before the court below that the said letter never received to the office of the C.M.O. undelivered. Apart from that if the said letter had not been received un-delivered to the office of the C.M.O., the office of the C.M.O. would have inquired from the postal department as to whether the said notice had been delivered & sent to the revisionist or not. The prosecution would have obtained a report of the postal department to the effect. After obtaining such report, the prosecution should have provided that report before the court. Then the presumption as provided u/s 114 of the Evidence Act would have been raised that the said letter had received upon him. In this case, the above evidence was lacking as such, it could not be said that the notice was received by the revisionist alongwith the report. Then the presumption as provided u/s 114 of the Evidence Act would have been raised that the said letter had received upon him. In this case, the above evidence was lacking as such, it could not be said that the notice was received by the revisionist alongwith the report. As such, I am of the view that the mandatory provisions of Section 13 (2) of the Food Adulteration Act have been violated in this case. 7. In view of the above, the judgment and order of the learned Chief Judicial Magistrate dated 20.04.1987 convicting the revisionist as indicated above and the judgment and order of learned Sessions Judge dated 10.11.1987 confirming the judgment and order of the learned Chief Judicial Magistrate are liable to be set aside. The revisionist is entitled to be acquitted. The revisionist is in bail, he needs not to surrender before the court below. His sureties are discharged. 8. The revision is accordingly allowed. 9. All applications pending in this case are stand disposed of in terms of the judgment.