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2009 DIGILAW 2317 (RAJ)

Gheesa Lal v. State of Rajasthan

2009-11-10

GOVIND MATHUR

body2009
JUDGMENT 1. - This revision petition as per provisions of Section 397 read with 401 Criminal Procedure Code is preferred to assail validity, correctness and propriety of the judgment dated 19.4.1994 passed by Additional Sessions Judge No.2, Chittorgarh, affirming the judgment dated 13.4.1989 passed by Chief Judicial Magistrate, Chittorgarh, convicting the petitioner for the offences punishable under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act of 1954") and further sentencing him to undergo six months rigorous imprisonment with a fine of Rs. 1000/- and in default of making payment of fine to undergo imprisonment for 11/2 months. 2. The facts necessary to be noticed are that a complaint against the petitioner was filed on 18.9.1983 before the court of Chief Judicial Magistrate, Chittorgarh alleging therein that a sample of mixed milk from the petitioner was taken on 29.7.1983 in presence of two witnesses and the same was sealed and sent to the Local Health Authority, Jaipur for analysis. The Local Health Authority found the milk adulterated, thus, after examining Shri Sardar Singh, Food Inspector, who took the sample, the petitioner was charged under Section 7/16 of the Act of 1954. It was also stated that a copy of the report of Local Health Authority was sent to the petitioner as per provisions of Section 13 of the Act of 1954. During the course of trial an application was preferred by the petitioner on 23.2.1987 seeking permission to get certification of the sample of milk from the Central Food Laboratory. The application aforesaid was rejected on 15.1.1988, being not filed within a period of ten days as required under Section 13(2) of the Act of 1954. The trial court held that a copy of the Local Health Authority report was sent to the petitioner by registered post on 17.8.1983, therefore, he should have applied for certification of the sample from Director of the Central Food Laboratory within a period of ten days from its receipt. 3. Being convicted and sentenced by the trial court as said above, the petitioner preferred an appeal and that too came to be rejected. 3. Being convicted and sentenced by the trial court as said above, the petitioner preferred an appeal and that too came to be rejected. The appellate court negatived contention of the appellant that copy of the Local Health Authority report was not received by him and also affirmed conclusion of the trial court that the accused should have demanded for certification of the sample by Director of the Central Food Laboratory within a period of ten days from the date of receipt of report by Local Health Authority. 4. Before this Court, while giving challenge to the judgments impugned, the contention of counsel for the petitioner is that the courts below failed to appreciate that neither copy of the Local Health Authority report was received by the petitioner nor an opportunity was accorded to him to get certification of sample as per provisions of Section 13(2) of the Act of 1954. It is asserted that the trial court failed to ascertain that whether report was served upon the petitioner or not specially when such receipt was denied in unambiguous terms. As per counsel for the petitioner the presumption drawn by the trial court regarding service of the report is erroneous. It is also stated that in view of the Division Bench judgment of this Court in Onkarlal v. State of Rajasthan, 2003(2) Cr. L.R. (Raj.) 1050 , the trial court should have allowed the petitioner to get certification from the Director, Central Food Laboratory as per provisions of Section 13(2) of the Act of 1954. 5. Learned Public Prosecutor contested the arguments advanced and as per her the trial court rightly presumed as per Section 27 of the General Clauses Act, 1897 regarding service of the report concerned. She also emphasised that the claim made by the petitioner for certification of the sample as per provisions of Section 13(2) of the Act of 1954 was made beyond statutory limitation and, therefore, same was rightly turned down by the trial court. 6. Heard counsel for the parties and examined the record. 7. Whether service of report given by the Local Health Authority upon the petitioner was rightly presumed by the trial court, is the first issue deserves consideration. 8. 6. Heard counsel for the parties and examined the record. 7. Whether service of report given by the Local Health Authority upon the petitioner was rightly presumed by the trial court, is the first issue deserves consideration. 8. As per Section 27 of the General Clauses Act, 1897, meaning of service by post is that "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 "service" 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 at which the letter would be delivered in the ordinary course of post." Under the provision aforesaid, the service shall be deemed to be effected if the envelope or the cover note is containing proper address, duly stamped and is sent by registered post. The court drawing presumption of service as per Section 27, thus, is required to satisfy itself about the facts aforesaid. 9. In the case in hand the trial court in quite vague manner just by recording fact relating to availability of postal receipt held the service of Local Health Authority report sufficient. The total discussion made by the trial court reads as follows:- " 10. The requisite consideration to draw presumption of service by post were not at all taken into consideration by the appellate court also. True it is, the appellate court noticed the document Ex.P/7 (forwarding letter under which the Local Health Authority report was sent) and the postal receipt Ex.P/8. Both the documents aforesaid bear address of the petitioner and as per Ex.P/7, that is. The material available on record about proper addressing as required under Section 27 is not at all satisfactory and the discrepancy in address in the two documents aforesaid is quite apparent. In both the addresses name of the village is given differently. The court, therefore, should have satisfied itself by adequate evidence relating to proper addressing and sufficient stamping. Without availability of such evidence, to satisfy on the counts aforesaid, no presumption of service by post could have been made. 11. In both the addresses name of the village is given differently. The court, therefore, should have satisfied itself by adequate evidence relating to proper addressing and sufficient stamping. Without availability of such evidence, to satisfy on the counts aforesaid, no presumption of service by post could have been made. 11. Hon'ble Supreme Court in State of Orissa v. Gouranga Sahu, reported in (2006)1 SCC (Cri) 286 , held that "forwarding a copy of the report is not only a ritual, but a statutory requirement to be mandatorily observed in all the cases. Dispatch 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". In the case in hand service of such report is highly doubtful and, therefore, adherence of the provisions of Section 13(2) of the Act of 1954 is also not satisfactorily established. In such circumstances the trial court certainly committed an error that amounts to miscarriage of justice by denying for getting the sample analysed and certified by the Director, Central Food Laboratory. The limitation of ten days for making demand to send the samples for their analysis and certification within a period of ten days from the date of receipt of Local Health Authority report in present case was not at all applicable and for the sake of argument, even if it is assumed that the limitation was applicable, then too the trial court should have considered the request made by the accused as per law laid down by Division Bench of this Court in the case of Onkarlal (supra), wherein the provision of Section 13(2) of the Act of 1954 to submit the application for sending one of the samples to Central Food Laboratory for analysis within a period of ten days was found directory in nature. 12. For the reasons aforesaid, this revision petition is allowed. The judgment dated 13.4.1989, passed by the trial court and 19.4.1994, passed by the appellate court are quashed and the petitioner is acquitted from the charge of committing any offence punishable under Section 7/16 of the Prevention of Food Adulteration Act, 1954.Revision allowed. *******