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Gauhati High Court · body

2007 DIGILAW 394 (GAU)

Kishan Gopal Gattani v. State of Assam and Ors.

2007-06-01

A.P.SUBBA

body2007
1. This revision petition is directed against the judgment order dated 14.9.2000 passed by the learned sessions Judge, Jorhat, in Criminal Appeal No. 13/2000 upholding and affirming the Judgment of conviction and sentence passed against the accused/petitioner under section 7/16 of the Prevention of Food Adulteration Act ('the Act') by the learned Chief Judicial Magistrate, Jorhat in CR Case No. 300/96. 2. The facts giving rise to this revision may be briefly stated as follows: 3. Shri A.C. Sarma, the Food Inspector, Jorhat accompanied by Senior Food Inspector visited the business establishment of petitioner No. 2 on 15th October, 1996 and purchased sample of 750 grams of Atta. After having purchased the sample of Atta, he divided it into 3(three) equal parts and put each part in dry, clean and transparent polythene containers duly fastening the mouth of the containers tightly. After the plastic containers were sealed, one of the samples was forwarded to the public analyst to the Government of Assam and the other two were deposited in the custody of the Local Health Authority, Jorhat. On receipt of the reports from the public analyst stating that the sample of Atta was found to be adulterated, the Food Inspector obtained written sanction and lodged a complaint against the present petitioner and others in the court of Chief Judicial Magistrate, Jorhat, which was registered as CR Case No. 300/1996. On conclusion of the trial the learned court of Chief Judicial Magistrate convicted the present appellant acquitting the other two partners of the firm. Being aggrieved by this order the appellants preferred an appeal before the court of the Sessions Judge, Jorhat. The learned Sessions Judge after hearing the parties and considering the materials on record came to the conclusion that the learned trial court had correctly come to the finding of guilt against the appellant and had imposed punishment under the law and accordingly, dismissed the appeal. It is against this order that the appellants have come up in the present revision petition. 4.I have heard Mr. G.N. Sahewalla, learned counsel for the appellant and Mr. B.S. Sinha, learned Public Prosecutor for the State. 5. Even though the appellants have taken number of grounds in the revision petition Mr. Sahewalla in his submissions before this court confined himself to the question of non-compliance of section 13(2) of the Prevention of Food Adulteration Act, 1954. G.N. Sahewalla, learned counsel for the appellant and Mr. B.S. Sinha, learned Public Prosecutor for the State. 5. Even though the appellants have taken number of grounds in the revision petition Mr. Sahewalla in his submissions before this court confined himself to the question of non-compliance of section 13(2) of the Prevention of Food Adulteration Act, 1954. It is his specific submission that the evidence adduced by the prosecution in the case proves despatch of the report only. However, the courts below found the factum of despatch of report as amounting to sufficient compliance of section 13(2) of the Act following the decision rendered by this court in the case of Ratan Lal Agarwal v. State of Assam, (1993) 1 GLR 118, wherein it was held that mere despatch of report would amount to sufficient compliance of section 13(2) of the Act. According to the learned counsel, the above position of law has since changed after the subsequent decision of the Apex Court in State of Orissa v. Gauranga Sahu, AIR 2004 SC1233, which lay down that under section 13(2) not only the despatch of the report but even its receipt by the accused has to be proved by the prosecution. Such being the present legal position, it was the further submission of the learned counsel that the despatch of the report having only been proved in the case there was non-compliance of the mandatory provision contained in section 13(2) of the Act and as such the whole trial must be taken to have been vitiated. 6. A perusal of the record would go to show that the evidence adduced by the prosecution was only in relation to despatch of the report. Dealing with this point the learned trial court in Para 29 of the impugned judgment observed as follows : "Now, it is to be seen if such position is found satisfied in this case or not. P.W.I Sri A.C. Sharma, in his evidence deposed that he filed this case before the court on 24.4.1998 vide Ext. 18 and intimation thereof was given to the L.H.A. Jorhat. The L.H.A. Jorhat, in turn, delivered a copy of the report of the public analyst, together with a notice under section 13(2) of the Act to the postal department, Jorhat, for being delivered upon the accused persons. The postal authority, in turn, issued receipt, for its receipt the documents, referred to above. The L.H.A. Jorhat, in turn, delivered a copy of the report of the public analyst, together with a notice under section 13(2) of the Act to the postal department, Jorhat, for being delivered upon the accused persons. The postal authority, in turn, issued receipt, for its receipt the documents, referred to above. Ext-19 is the notice under section 13(2) of the Act while Exts. 20,21,22 and 23 are the postal receipts, being issued by the postal authority, Jorhat. Exts. 18 to 23, when read in the light of the oral evidence of P.W.I, being tendered on this point, it would make more than clear that the L.H.A. Jorhat duly forwarded a copy of the report of the public analyst and a notice under section 13(2) of the Act to each of the accused persons. 7. Having, thus, come to the above conclusion the learned trial court relying" on the decision of this court, rendered in Ratanlal Agarwal (supra) held that "the provisions of section 13(2) of the Act was complied with in letter and spirit. 8. It is to be noted that the learned appellate court below found itself in full agreement with the findings and the conclusions arrived at by the learned trial court. In this regard, it is the submission of Mr. Sahewalla, that the above finding and conclusion arrived at by both the courts below were not sustainable in view of the change in law on the point. In support of his submission the learned counsel referred to the decision of the hon'ble Supreme Court rendered in Gauranga Sahu (supra) and two unreported decisions of this court rendered in Sri Dulichand Agarwalla and Another v. The State of Assam & Another, decided on 17.1.2007. 9. In the above case of Gauranga Sahu their lordships of the Supreme Court have held that forwarding the report of the public analyst under section 13(2) of the Act was not a mere ritual but a requirement of law to be mandatorily observed. It was, thus, observed that not only the despatch of the report but even its receipt by the accused has to be proved by the prosecution. It is following this decision that two co­ordinate Benches of the court in the two decisions cited above, have held that section 13(2) of the Act being mandatory its non-compliance will vitiate the entire trial. 10. It is following this decision that two co­ordinate Benches of the court in the two decisions cited above, have held that section 13(2) of the Act being mandatory its non-compliance will vitiate the entire trial. 10. Hence, the position of law that emerges from the above decisions is that section 13(2) of the Act confers a valuable right on the accused. The purpose of making the report of the public analyst available to the accused is to inform him that he has a right to get the sample examined from Central Forensic Laboratory. Such being the underlying object of the provisions compliance of section 13(2) becomes condition precedent for fair trial and its non-compliance will per se vitiate the trial. 11. Thus, Having regard to the admitted fact that no service was proved by the prosecution in the present case, it must be held on the authority of the above decisions that the accused has been deprived of valuable right conferred on him by section 13(2) of the Act. It, thus, follows that the non-compliance of mandatory provisions of law contained under section 13(2) of Act in the present case has vitiated the whole trial. 12. In the result the revision is allowed. The impugned judgments of both the courts below are hereby set aside. The revision petitioner stands acquitted of the charge brought against him. Bail bond furnished by the petitioner is discharged.