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2010 DIGILAW 777 (ALL)

Pati Ram v. State of U. P. and another

2010-03-08

SHRI KANT TRIPATHI

body2010
Shri Kant Tripathi,J.:- The revisionist Pati Ram has preferred this revision against the judgment and order dated 1.8.2000 rendered by Sri A.K. Srivastava, Vth Additional Sessions Judge, Hardoi in Criminal Appeal No. 9 of 1998, Pati Ram vs. State of U.P. & another, whereby the learned Additional Sessions Judge dismissed the revisionist's appeal and confirmed his conviction and sentence under section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as Act), recorded by the Ist Additional Chief Judicial Magistrate, Hardoi. 2. It may be mentioned that the revisionist has been convicted and sentenced under section 7/16 of the Act to under go rigorous imprisonment of six months and also to pay a fine of Rs. Two thousand only and in default of payment of fine to under go simple imprisonment of two months. 3. The facts leading to this revision are that on 18.3.1993, at 2.45 PM, concerned Food Inspector took a sample of 375 grams of refined mustard oil from the revisionist after conforming to the formalities enjoined by the Act. The Food Inspector divided the sample into three equal parts and labelled and sealed each of them in accordance with the Rules and forwarded one sealed bottle to the Public Analyst for analysis. The Public Analyst, after the analysis, submitted his report to the effect that the sample of the refined mustard oil was adulterated. The Food Inspector, after obtaining sanction of the Chief Medical Officer, Hardoi to prosecute the revisionist, filed a complaint in the court of the concerned Magistrate. 4. The revisionist was charged under section 7 read with section 16 of the Act, who denied the charge and claimed to be tried. 5. During the trial, statements of the complainant (PW-1 Ram Adhar Pal) and witnesses PW-2 Jagdish Prasad and PW-3 Ram Dulare were recorded. The Public Analyst's report was also tendered in evidence. Various formal papers were also proved during the trial. 6. The learned Magistrate examined the revisionist under section 313 CrPC, who denied that the sample of refined mustard oil was taken from his shop. 7. No evidence was adduced in defence. 8. The learned Additional Chief Judicial Magistrate, Hardoi held that the charge under section 76 (1) (a) (I) of the Act was proved beyond all the reasonable doubts. Accordingly the learned Magistrate convicted and sentenced the revisionist. 9. The revisionist filed criminal appeal no. 7. No evidence was adduced in defence. 8. The learned Additional Chief Judicial Magistrate, Hardoi held that the charge under section 76 (1) (a) (I) of the Act was proved beyond all the reasonable doubts. Accordingly the learned Magistrate convicted and sentenced the revisionist. 9. The revisionist filed criminal appeal no. 9 of 1998 against the judgment and order of the learned Additional Chief Judicial Magistrate, Hardoi, which was dismissed by the learned Vth Additional Sessions Judge, Hardoi on 1.8.2000. 10. The learned counsel for the revisionist submitted that no public witness was called at the time of taking the sample and the witnesses,who were present at that time were official witnesses and serving under the Food Inspector. The provisions of section 10(7) of the Act was, therefore, not followed, which was mandatory in nature. The learned Additional Sessions Judge has considered this aspect of the matter in detail, and found that the Food Inspector (PW-1 Ram Adhar Pal) had stated that he had called local residents at the time of taking the sample but none of them was ready to be a witness. Consequently, he obtained the signature of Sanitary Supervisor as a witness. The learned Additional Sessions Judge further found that the statement of the Food Inspector (PW-1 Ram Adhar Pal) was corroborated by the Sanitary Supervisor (PW-3 Ram Dulare). It is, thus, clear that the Food Inspector attempted to procure attendance of public witnesses at the time of taking sample but none of them agreed to become a witness, consequently the Food Inspector had no option except to take the sample in the presence of official witnesses. In this view of the matter, the Food Inspector can not be blamed for non-compliance of section 10(7) of the Act. The learned Additional Sessions Judge has placed reliance on AIR 1974 SC 789 , Ram Labhaya vs. Nagar Palika, Delhi. In that case the apex court has held that it is sufficient compliance of section 10 (7) of the Act if the Food Inspector called public witnesses at the time of taking sample. In my opinion, if the Food Inspector does so, the prosecution case can not be thrown out on the ground that the public witnesses so called declined to become witnesses of the proceeding of taking of the sample. In my opinion, if the Food Inspector does so, the prosecution case can not be thrown out on the ground that the public witnesses so called declined to become witnesses of the proceeding of taking of the sample. The finding of The learned Additional Sessions Judge is based on proper appraisal of the evidence on record, which requires no interference by this Court. The submission that the Food Inspector did not make compliance of the provisions of section 10(7) of the Act is devoid of merit. 11. The learned counsel for the revisionist further submitted that the provisions of section 13(2) of the Act have not been followed in this case. The revisionist was not provided any opportunity to have one sample of the refined mustard oil analyzed by the Central Food Laboratory. There is no evidence that the notice required by section 13(2) of the Act was served on the revisionist. The learned counsel further submitted that PW-2 Jagdish Prasad, who was posted as Food Clerk in the office of the Chief Medical Officer, Hardoi, has merely stated that the notice along with copy of the Public Analyst's report was sent to the revisionist by registered post but he has not spoken as to whether the notice was served on the revisionist or not. The postal receipt (Exhibit Ka-13) does not bear complete address of the revisionist and as such it can not be presumed that the notice dispatched by registered post reached to the revisionist. The learned counsel further submitted that the prosecution was bound not only to prove dispatch of the notice but also due service thereof on the revisionist. Neither the appellate court nor the trial court has recorded any specific finding in this regard. 12. The learned AGA, on the other hand, submitted that PW-2 Jagdish Prasad has very clearly stated that the notice required by section 13(2) of the Act was dispatched to the revisionist by registered post at his correct address and as such it may be presumed that the notice reached to the revisionist. It was also submitted that the revisionist did not plead that the notice was not received by him. 13. In order to give due consideration to the rival submissions, it seems to be necessary and expedient to reproduce the provisions of section 13 (2) of the Act, which are as follows: "13 (2). It was also submitted that the revisionist did not plead that the notice was not received by him. 13. In order to give due consideration to the rival submissions, it seems to be necessary and expedient to reproduce the provisions of section 13 (2) of the Act, which are as follows: "13 (2). On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten 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." 14. Rule 9A of The Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules), which has now been renumbered as Rule 9-B with effect from 24.8.1995, deals with the procedure as to how the provisions of section 13 (2) of the Act are to be observed. Rule 9A of The Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules), which has now been renumbered as Rule 9-B with effect from 24.8.1995, deals with the procedure as to how the provisions of section 13 (2) of the Act are to be observed. Rule 9-A (at present Rule 9-B) of the Rules is reproduced as under:- "The Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under section 14A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2E) of section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst." 15. A combined reading of the aforesaid provisions reveals that the Local (Health) Authority (C.M.O.) is under legal obligation to send a notice to the person from whom the sample of food was taken along with a copy of the public analyst's report within ten days after the institution of the prosecution, informing him that he may make an application to the court concerned within a period of ten days from the date of receipt of the copy of the report of Public Analyst for having the sample of food kept in the office of the Local (Health) Authority analysed by the Central Food Laboratory. The notice along with report of Public Analyst may be sent by registered post or may be delivered to the concerned person by hand. 16. The notice along with report of Public Analyst may be sent by registered post or may be delivered to the concerned person by hand. 16. Section 13(2) of the Act read with rule 9A (presently rule 9B) of the Rules has, thus, conferred a valuable right on the accused not only to know the result of analysis made by the public analyst but also to have an opportunity to apply before the court concerned within ten days from the date of receipt of the copy of the report of public analyst for dispatching the sample of food kept in the office of the Local (Health) Authority to Central Food Laboratory for analysis. It may also be mentioned that the report of the Central Food Laboratory has an overriding effect on the report of the public analyst and as such the accused can not be denied of his right to have the sample of food analysed by the Central Food Laboratory and show his innocence. In the event of denial of such a right causes a serious prejudice to the accused and in that situation no valid conviction can be recorded against him. 17. In the case of State of Orissa vs. Gauranga Sahu, AIR 2004 SC 1233 : 2002 (3) ACR 2327 (SC), the apex court has held that a mere dispatch of the report is not enough. It is also required to be proved that the letter dispatched reached to the addressee, i.e. the accused. It was also held that forwarding a copy of the report of public analyst is not only 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 of food analysed from the Central Food Laboratory. 18. The submission of the learned counsel for the revisionist are required to be examined in the light of the aforesaid principles keeping in view the finding of fact recorded by the courts below. 18. The submission of the learned counsel for the revisionist are required to be examined in the light of the aforesaid principles keeping in view the finding of fact recorded by the courts below. The learned Additional Sessions Judge has very categorically held that PW-2 Jagdish Prasad, who was posted as Food Clerk in the office of the C.M.O. Hardoi, stated during the trial that he had prepared the notice under section 13(2) of the Act and obtained signature of the CMO thereon and then dispatched the notice along with a copy of the report of the Public Analyst to the revisionist Pati Ram son of Jagram resident of village and post Sawaijpur, police station Lonar, district Hardoi, by registered post. It was further held that PW-2 Jagdish Prasad proved the copy of the notice dated 21.11.1993 (Ex.KA 10) as well as the postal receipt (Ex. Ka 13). It was admitted that in the postal receipt only the name of revisionist and his police station are mentioned. 19. The submission of the learned counsel for the revisionist was that the postal receipt was incomplete as the revisionist's address has not been mentioned on the postal receipt and as such it can not be presumed that the notice reached to the revisionist. In my opinion, this submission has no merit. According to the finding of the courts below as well as the statement of PW-2 Jagdish Prasad, the original notice along with a copy of public analyst's report was sent to the revisionist at his address (described above) by registered post and as such it may be presumed that the notice as well as a copy of the Public Analyst's report reached in due course to the revisionist. In the postal receipt ordinarily the whole address of the addressee is not given and merely on the basis of the postal receipt, it can not be argued that the notice and the Public Analyst's report was not sent on proper address. If the copy of the notice (Ex.KA 10) and the copy of the Public Analyst's report as well as statement of PW-2 Jagdish Prasad are read together it is fully proved that the notice along with a copy of the Public Analyst's report was sent to the revisionist at his correct address by registered post. If the copy of the notice (Ex.KA 10) and the copy of the Public Analyst's report as well as statement of PW-2 Jagdish Prasad are read together it is fully proved that the notice along with a copy of the Public Analyst's report was sent to the revisionist at his correct address by registered post. And this conclusion, which was also arrived at by the courts below and is based on legal evidence on record, can not be upset merely because in the postal receipt complete address of the revisionist is not mentioned, which seems to be a mistake attributable on the part of the concerned official of the post office. It is a matter of common knowledge that in the post offices registered envelops containing letters/ notices/ other materials are not accepted without disclosure in writing of the name and complete address of the addressee on the envelope. 20. Under section 27 of the General Clauses Act, service of the notice may be presumed under certain circumstances, which reads: "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 "serve" 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, pre-paying 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." 21. A perusal of section 27 of the General Clauses Act reveals that the presumption under section 27 arises if four conditions are fulfilled, namely, sending the letter/notice by registered post, it being properly addressed, prepaid and the letter/notice containing the document, being posted. If a letter is posted mentioning correct address of the addressee and is sent by registered post it may be presumed that in due course of business the letter reached to the addressee. In Raja Kumari vs. P. Subbarama Naidu and another, AIR 2005 SC 109 , the apex court has held that the notice dispatched by sender by post with correct address on it, can be deemed to be served on sendee unless he proves that he is not really served. In Raja Kumari vs. P. Subbarama Naidu and another, AIR 2005 SC 109 , the apex court has held that the notice dispatched by sender by post with correct address on it, can be deemed to be served on sendee unless he proves that he is not really served. This principle was propounded keeping in view the provisions of section 27 of the General Clauses Act. 22. In view of the fact that PW-2 Jagdish Prasad has proved the fact that he had dispatched the notice required by section 13 (2) of the Act along with a copy of the report of the Public Analyst to the revisionist at his correct address by registered post, it can be safely presumed that the notice as well as the copy of the Public Analyst's report reached to the revisionist. It was, therefore, a duty of the revisionist to rebut this presumption but he did not do so and kept silence in this regard throughout the trial. 23. I, therefore, find no error in the finding of fact recorded by the courts below that the provisions of section 13(2) of the Act were duly observed and no prejudice whatsoever has been caused to the revisionist. 24. The learned counsel for the revisionist lastly submitted that the revisionist may be extended the benefit of the Probation of Offenders Act. In my opinion the crime of selling adulterated food is not only a serious crime against the society but is also an economic offence. In such type of cases the grant of benefit of Probation of Offenders Act does not seem to be proper. 25. The sentence imposed does not appear to be excessive and unreasonable as the courts below have imposed the minimum sentence prescribed under the Act. 26. The revision has no merit and is accordingly dismissed. 27. Let the lower court records be dispatched immediately with the direction that the learned Ist Additional Chief Judicial Magistrate, Hardoi shall ensure arrest of the revisionist for serving out the sentence and submit compliance report within two months.