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2007 DIGILAW 582 (CHH)

SONURAM KANWAR v. STATE OF MADHYA PRADESH

2007-10-16

DHIRENDRA MISHRA

body2007
DHRIENDRA MISHRA, J. ( 1 ) THIS criminal revision is directed against the judgment dated 16th May, 1995 passed in Cr. A. No. 55/87 whereby learned Additional Sessions judge, Dhamtari has rejected the appeal preferred by the applicant and confirmed the judgment of conviction and order of sentence dated 3. 1. 1987 passed in Criminal case No. 232/83 by Judicial Magistrate First class, Dhamtari whereby the applicant has been convicted under Section 16 of the prevention of Food Adulteration Act, 1954 (For short, hereinafter referred to as the Act) and sentenced to undergo R. I. for six months and fine of Rs. 1000/-, in default of payment of fine, to further undergo R. I. for one month. ( 2 ) LEARNED counsel for the applicant submits that both the Courts below have ignored the fact that there is absolute non-compliance of Section 13 (2) of the Act as there is no evidence available on record to show that after receipt of the port of the result of the Public Analyst that the article of food is adulterated, the Local (Health)Authority forwarded the copy of the report of the result of the Public Analyst to the applicant informing him that he may make an application to the Court within a period of 10 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. Referring to the deposition of the Food Inspector P. W. 1 K. K. Bengopalan, it was argued that in paragraph 6 of his cross-examination, he has categorically stated that he is not aware whether the accused received the notice or not. Reliance is placed in the matter of State of Orissa v. Gauranga Sahu and State of Gujarat v. Mehbub Abdulgani Kathki and another. ( 3 ) ON the other hand, learned counsel for the State contended that the Food Inspector p. W. 1 K. K. Bengopalan in his statement has deposed that the Local (Health) Authority sent notice under Section 13 (2) along with the report of the result of public analyst to the accused with a copy of Ex. P-9 to him. ( 3 ) ON the other hand, learned counsel for the State contended that the Food Inspector p. W. 1 K. K. Bengopalan in his statement has deposed that the Local (Health) Authority sent notice under Section 13 (2) along with the report of the result of public analyst to the accused with a copy of Ex. P-9 to him. There was no reason to disbelieve the assertion of the Food Inspector and both the courts below have rightly held that there is due compliance of Section 13 (2) of the act and thus there is no illegality or infirmity in the impugned judgment. ( 4 ) I have heard the learned counsel for the parties. ( 5 ) SAMPLE of Arhar Dal was purchased from the shop of the applicant by the Food inspector P. W. 1 K. K. Bengopalan and the same was sent for analysis to Public Analyst who vide his report of Ex. P-8 dated 20. 11. 1982, reported that the sample does not conform to the standard prescribed under the Act as the same contains artificial colour (Metanil Yellow) After receiving the report, charge sheet was filed against the applicant under Section 16 of the Act and k. K. Bengopalan (P. W. 1) was examined by the prosecution. This witness has stated in para 5 of his statement that notice under section 13 (2) of the Act along with copy of the Public Analyst report was sent to the accused with a copy of the same of Ex. P-9 to him. However after going through the record it is found that no receipt of the above notice has been filed or proved before the trial Court and the Food Inspector has admitted in his cross-examination that the notice sent to the accused was in fact received by him or not, he does not know and receipt of the same may be available in the office of Local Health Authority. ( 6 ) IN the matter of State of Gujarat v. Mehbub Abdulgani Kathki and another (supra), it has been held that in the absence of any positive evidence that Public Analyst report was in fact served upon accused in compliance with mandatory provisions of section 13 (2) of the Act, presumption cannot be drawn that copy of public analyst report must have been supplied only on the basis of production of postal acknowledgement. Service of notice along with report of public analyst is requirement of law as envisaged under Section 13 (2) of the Act and mere statement that the local health authority sent the notice to the accused under section 13 (2) itself would not be sufficient to prove the service of report of the public analyst to the accused. ( 7 ) IN the matter of State of Orissa v. Gauranga (supra) the Hon'ble Supreme court has held that notice forwarding the public analyst report to the accused is not a mere ritual but a statutory requirement to be mandatorily observed and not only despatch of the report but even its receipt by the accused has to be proved by the prosecution. ( 8 ) IN the light of the above principles of law laid down in the abovementioned judgments, if we examine the facts of the present case, it is evident that there is absolute non-compliance of Section 13 (2) of the Act as there is no evidence available on record regarding despatch of the notice under Section 13 (2) of the Act along with Public Analyst report and receipt of the same by the applicant. Learned Additional Sessions judge was not justified in reaching to the conclusion that since the Food Inspector has stated that the notice was sent from Local health Authority to the applicant with a copy to him, thus there is complete compliance of Section 13 (2) without there being any evidence of receipt of the same. ( 9 ) IN the result, the revision deserves to be allowed and it is accordingly allowed. Consequently, the impugned judgment passed by the Additional District Judge, dhamtari dated 16th May, 1995 confirming the conviction under Section 16 of the Act and sentencing the applicant to undergo R. I. for six month with fine of Rs. 1000/- recorded by the Judicial Magistrate First Class, dhamtari dated 3. 1. 1987 is set aside. The applicant is acquitted of the above charge. He is on bail. His bail bonds are discharged. He need not surrender. Revision allowed. --- *** --- .