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2011 DIGILAW 872 (GAU)

Dipal Kumar Biswas v. State of Assam

2011-11-01

P.K.MUSAHARY

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1. Heard Mr. B.M. Choudhury, learned counsel for the convict/petitioner and Mr. B.B. Gogoi, learned counsel Addl. Public Prosecutor, Assam. 2. This petition is directed against the judgment and order dated 6.11.2003 passed by the learned Ad hoc Additional District and Sessions Judge, Nagaon in Criminal Appeal No.50/2011 dismissing the appeal and upholding the conviction and sentence of the accused/petitioner under section 7/16 of the Prevention of Food Adulteration Act, 1954 ('the Act') passed on 15.10.2001, by the learned SDJM, Hojai, Sankardev Nagar in C.R. Case No.473/1998. 3. Mr. B.M. Choudhury, learned counsel for the petitioner submits that the learned trial court as well as the appellate court failed to appreciate that the prosecution did not comply with the statutory requirement under section 13(2) of the Act inasmuch as the convict petitioner was not furnished with the report of the Public Analyst along with notice under the aforesaid provision. According to him the prosecution committed serious lapse and it has vitiated the entire trial for which the convict-petitioner is entitled to get an order of acquittal. In this regard, he relies on decision rendered by the Apex Court in State of Orissa v. Gauranga Sahu, 2003 Crl. LJ 3077 and also the decisions of this court in Shyamal Nag v. State of Assam, 2004 (1) GLT 667; Indradev Yadav andAnr. v. State of Assam, 2011 (3) GLT 96 and Dhananjoy Pal v. State of Assam, 2005 (Supp) GLT 764. 4. I have carefully gone through the judgment of the learned trial court. In regard to allegation of violation of provisions of section 13(2) of the Act, the learned trial court recorded its findings as under : "It is evident from Exts. 15 and 17 that the report of analysi Nos. PF/NG/49/98 dated 19.6.1998 received from the Public Analyst to the Government of Assam, Bamunimaidan, Guwahati-21 in connection with the sample of Turmeric powder code No. and Serial No.DD/98.6 collected by Shri D.D. Bora, Food Inspector, Hojai from the vendor on 20.5.1998 was duly forwarded to him by registered post to his address inviting him to challenge the same by filing application before this court. Hence, it is found that provision of section 13(2) of the Act was duly complied with by the Food Inspector and there was no violation of it." 5. I have also carefully perused the judgment of the appellate court. Hence, it is found that provision of section 13(2) of the Act was duly complied with by the Food Inspector and there was no violation of it." 5. I have also carefully perused the judgment of the appellate court. This aspect of the matter has been considered in paragraphs 14 and 15 of the judgment. For ready reference the said paragraphs of the judgment are reproduced below : "14. There is nothing as per section 13(2) of the P.F.A. Act that the Food Inspector is to send the report of the Public Analyst to the vendor by registered post. As per the Provision it is only to "Forward" the report. 15. In Ratanlal Agarwal's case their lordships of hon'ble Gauhati High Court has observed that: "We do not think that there is any particular sanctity in the method prescribed, namely, registered post or by hand. If the Local (Health) Authority forwards it in any other reasonable manner, the accused cannot take advantage of it as long as he is not able to show prejudice. The rule does not require that when the copy of the report with intimation is forwarded by Registered post, there must be acknowledgement due. If it is forwarded by registered post without acknowledgement due then also the Local (Health) Authority must be taken to have satisfied the requirement of law"." 6. The prosecution examined only 2(two) witnesses. PW1 is the Food Inspector, who collected the sample of alleged adulterated turmeric powder. PW2 is the office peon who accompanied the said Food Inspector. They have given evidence how the article was seized, sample was collected and sent for test and report received from public analyst and dispatched copy of the report to the accused. But they have not adduced any evidence to prove that the letter/notice despatched along with the report had reached the addressee, i.e., the accused. The fact of receipt of the aforesaid report of the public analyst by the accused has not been proved. The prosecution must, by sufficient evidence, prove that the public analyst's report, on the basis of which the prosecution wants to establish its case and intends to provide, has been delivered and received by the accused. 7. The Apex Court delivered the judgment in Gauranga Sahu's case (supra) on 30.4.2002. The prosecution must, by sufficient evidence, prove that the public analyst's report, on the basis of which the prosecution wants to establish its case and intends to provide, has been delivered and received by the accused. 7. The Apex Court delivered the judgment in Gauranga Sahu's case (supra) on 30.4.2002. It is clearly held therein that forwarding of report of the Public Analyst to accused is not a ritual but a statutory requirement which must be observed mandatorily. It is also held that the prosecution has to prove not only the despatch of the report but also the receipt of it by the accused. This important decision was not referred to or placed by the learned counsel for the parties at the time of hearing before the learned courts below. 8. The purport of the aforesaid judgment is that the report of the Public Analyst must reach the accused and he must be informed about the result of the test and he must be given opportunity to file an application before the court within the prescribed period. The accused has a statutory right to make application, if he so desires, to get the sample of the article of food kept by the local (health) authority analysed by the Central Food Laboratory. If such opportunity is not given as required under the provision of section 13(2) of the Act, the entire proceeding stands vitiated. To be precise, the court, unless satisfied itself that the accused has, infact, received the report of the Public Analyst, no conviction can be ordered and if any conviction and sentence is awarded without complying with the aforesaid requirement, such conviction and sentence can be set aside and quashed on that ground alone. 9. The subsequent judgments rendered by this court in Shyamal Nag's case Dhananjoy Pal and Indradev Yadav (supra), as referred to by the learned counsel for the parties, are based on the aforesaid judgment of the Apex Court. There is no dispute on the settled position of law that the procedure laid down in section 13(2) of the Act are required to be complied with mandatorily by the prosecution and if the prosecution fails to do so the entire trial stands vitiated and the accused would be entitled to acquittal. 10. There is no dispute on the settled position of law that the procedure laid down in section 13(2) of the Act are required to be complied with mandatorily by the prosecution and if the prosecution fails to do so the entire trial stands vitiated and the accused would be entitled to acquittal. 10. As discussed earlier, there is no record and evidence that the accused was served with copy of the report of the Public Analyst or the accused received the same. No postal record has been produced or proved by the prosecution. Nor any official from the postal department was examined by the prosecution to prove the fact that the accused was served with the copy of the report of the Public Analyst. This is a clear violation of the mandatory provision under section 13(2) of the Act which caused prejudice to the accused in defending, his case. In view of the aforesaid factual and legal position this court has no other alternative but to set aside and quash the impugned judgments and orders passed by the learned trial court as well as appellate court. Accordingly, the same are quashed and set aside. The accused petitioner is entitled to acquittal. It is ordered accordingly. It is stated at the bar that petitioner is on bail. The bail bond stands discharged. Petition stands allowed. LCR be returned.