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2011 DIGILAW 869 (GAU)

Samir Das v. State of Assam

2011-11-01

A.K.GOSWAMI

body2011
JUDGMENT A.K. Goswami, J. 1. This revision petition is directed against the Judgment and Order dated 25-3-2004 passed by the learned Additional District and Sessions Judge (Ad-hoc), Nagaon in Criminal Appeal No. 53(N)/2002, affirming the Judgment and Order dated 3-10-2002 passed by the learned Sub-Divisional Judicial Magistrate, Hojai at Sankerdev Nagar in CR Case No. 287/2000, whereby the accused/petitioner was convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act 1954, for short, the Act and sentencing him to suffer rigorous imprisonment for 6 (six) months and to pay a fine of Rs. 1000/- and, in default, to suffer rigorous imprisonment for a period of 2 (two) months. The prosecution case, in brief, is that on 1-6-2000, Shri D.D. Borah, the Food Inspector of Hojai at the relevant point of time along with his peon, one Sri Samsul Haque Borbhuyan, visited the shop premises of the petitioner and collected sample of beson which was stored for sale for human consumption, by observing all the formalities and, thereafter, the same was sent for analysis to the Public Analyst. The Public Analyst, on examination of the sample of beson, vide report dated 11-4-2000 opined that the sample of beson is adulterated indicating also in such report that in the sample of beson, there was 70% added powdered pea. On receipt of the report of the Public Analyst, on the prayer of the Food Inspector, the Local Health Authority accorded sanction to launch prosecution against the petitioner and, accordingly, the Food Inspector submitted offence report against the petitioner on 16-5-2000 under Sections 7/16 of the Act in the Court of Sub-Divisional Judicial Magistrate, Hojai at Sankardev Nagar. 2. On receipt of summons, the petitioner appeared before the learned Court of Sub-Divisional Judicial Magistrate, Hojai at Sankardev Nagar and particulars of offence under Sections 7/16 of the Act having been explained to the petitioner, the petitioner pleaded not guilty and came to be tried. 3. During trial, the prosecution examined the Food Inspector and the peon who had accompanied the Food Inspector as PW-1 and PW-2, respectively. The accused petitioner, when examined under Section 313, Cr PC, denied the allegations. 4. On conclusion of the trial, the learned trial Court, finding the accused petitioner guilty of the charges framed against him, convicted him accordingly and passed sentence against him as has been indicated hereinbefore. The accused petitioner, when examined under Section 313, Cr PC, denied the allegations. 4. On conclusion of the trial, the learned trial Court, finding the accused petitioner guilty of the charges framed against him, convicted him accordingly and passed sentence against him as has been indicated hereinbefore. The appeal preferred by the petitioner having also been dismissed, the aforesaid Judgments are impugned in the present revision application. 5. I have heard Mr. B.M. Choudhury, learned counsel for the petitioner as well as Mr. K. Munir, learned Addl. Public Prosecutor, Assam. I have also perused the materials on record. 6. Mr. B.M. Choudhury, learned counsel for the petitioner has urged only one ground. According to him, the statutory requirement as ordained under Section 13(2) of the Act, which is mandatory in character, has not been complied with and as a consequence thereof, the impugned Judgments and Orders as well as the conviction and sentence imposed upon the petitioner are not sustainable in law. He submits that the evidence adduced by the prosecution does not establish in any manner that a notice with a copy of the report of the result of the Public Analyst informing the petitioner that, if it is so desired by him, he can 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 to be analysed by the Central Food Laboratory, was served upon the petitioner and that only evidence that is available on record is with regard to the forwarding of such report and not the service thereof. The learned counsel for the petitioner has also placed reliance on the Judgments rendered in the cases of State of Orissa v. Gauranga Sahu, reported in 2003 Cri.L.J. 3077, Shyamal Nag v. State of Assam, reported in 2004 (1) GLT 667, Dhananjoy Pal v. State of Assam, reported in 2005 (Suppl.) GLT 764 and Indradev Yadav & Anr. v. State of Assam, reported in 2011 (3) GLT 96 to support his contention. 7. Mr. K. Munir, learned Addl. v. State of Assam, reported in 2011 (3) GLT 96 to support his contention. 7. Mr. K. Munir, learned Addl. Public Prosecutor, Assam, on the other hand, submits that no plea had been set up by the petitioner that he had not received the report to be sent under the provision of Section 13(2) of the Act and as such the contention advanced by the learned counsel for the petitioner is not tenable. Accordingly, he submits that there is no merit in this application. 8. In order to appreciate the contentions advanced by the learned counsel for the petitioner, it would be appropriate to quote hereinbelow Section 13(2) of the Act:-- 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 person 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. 9. A perusal of the aforesaid provision would indicate that the purpose of giving of a notice under Section 13(2) is to inform the accused of his valuable right to get the sample analysed from the Central Food Laboratory. The Apex Court in Gauranga Sahu (supra) had laid down that the mere dispatch of the report is not enough and that the prosecution is further obliged to prove that the report so dispatched had reached the accused. Forwarding of the copy of the report was not considered to be only a mere ritual but a statutory requirement to be mandatorily observed in all cases. 10. Forwarding of the copy of the report was not considered to be only a mere ritual but a statutory requirement to be mandatorily observed in all cases. 10. In Shyamal Nag (supra), this Court had observed that Section 13(2) is mandatory in nature and it confers valuable right to the accused, denial of which would constitute prejudice to the accused entitling him to acquittal. 11. In Dhananjoy Pal (supra), this Court had also held that compliance of Section 13(2) is a condition precedent for a fair trial and non-compliance thereof will, per se, vitiate a trial. This Court also held that it is imperative for the prosecution to prove that the accused knew that he had a right to get the sample analysed in the Central Food Laboratory and that this knowledge had been derived by the accused from the notice issued under Section 13(2) of the Act. This Court went on to further hold that if the prosecution fails to prove such knowledge on the part of the accused, it will be necessary for the Court to treat that prejudice had been caused to the accused on account of non-compliance of this mandatory requirement. 12. In Indradev Yadav (supra), this Court had observed that it is the duty of the prosecution to establish by adducing cogent and reliable evidence that notice as required by Section 13(2) of the Act was duly served on the accused person(s) or, that the accused person(s) had duly received the same. 13. The provision as contained in Section 13(2) of the Act and the decisions referred to hereinabove would unmistakably demonstrate that a duty is cast on the prosecution to prove that notice under Section 13(2) is duly served on the accused and failure to adduce cogent and reliable evidence in that regard would vitiate a trial. 14. Adverting to the evidence on record of this case, the PW 1 had merely stated in his evidence that Ext-16 was the notice under Section 13(2) 'and that Ext-17 is the postal receipt in connection with dispatch of Ext-16. In his cross-examination, the PW 1 admitted that the acknowledgment card was not received back. The trend of the cross-examination of PW 1 would also indicate that the defence had taken a plea that notice under Section 13(2) was not dispatched. 15. In his cross-examination, the PW 1 admitted that the acknowledgment card was not received back. The trend of the cross-examination of PW 1 would also indicate that the defence had taken a plea that notice under Section 13(2) was not dispatched. 15. The learned appellate Court had taken note of Ext-16 and Ext-17 and had relied on a decision rendered in the case of Ratanlal Agarwal v. State of Assam, reported in (1993) 1 GLT 286 to hold that the provision of Section 13(2) of the Act is not mandatory in character and that if the notice is forwarded by registered post, without acknowledgment card, then also it must be held that the Local Health Authority had satisfied the requirement of law as contained in Section 13(2) of the Act. It is apparent that the decision rendered in Gauranga Sahu (supra), which, as has been noted earlier, in categorical terms had held that the prosecution must prove that the report so dispatched had reached the addressee and that statutory requirement of Section 13(2) of the Act had to be may observed in all the cases, was not brought to the notice of the learned appellate Court. 16. The analysis above would negate the contention advanced by the learned Additional Public Prosecutor, Assam that no plea was set up by the accuses; to the effect that he had not received the report under Section 13(2) of the Act. 17. In view of the discussions made hereinabove, I am of the considered opinion that the conviction of the accused petitioner suffers from incurable infirmity in law and as such the petitioner is entitled to be set at liberty. Taking that view, the conviction of the accused petitioner and the sentenced imposed upon him is hereby set aside. The accused petitioner is held not guilty of the charge framed against him' and he is acquitted of the same. Bail bond of the petitioner is cancelled and his surety also stands discharged. 18. The revision petition is allowed. The LCRs be transmitted back forthwith.