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2012 DIGILAW 897 (GAU)

Sukumar Roy v. State of Assam

2012-07-27

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. By the judgment and order, dated 30.92004, passed, in criminal Appeal No. 10(1)/2004, by the learned Session Judge, Cachar, Silchar, the appeal has been dismissed and the judgment and order, dated 30.01.2004, passed, in CR 1614/2000, by the learned Chief Judicial Magistrate, Cachar, Silchar, convicting the two accused-petitioners, under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the PFA Act') and sentencing each one of them to undergo rigorous imprisonment for 6 months and pay fine of Rs.1,000/- and, in default of payment of fine, suffer simple imprisonment for 30 days, stands upheld. The case of the prosecution may, in brief, be described thus: On 26.05.2000, Senior Food Inspector (PW1) visited the shop, belonging to accused-petitioner, namely, Sukumar Chandra Roy, who was not present at his shop and, upon serving a notice, in Form-VI, on accused-petitioner, namely, Sudip Roy, purchased 600 grams of beson and 600 grams of Moong daal (whole) for sending the same to the Public Analyst for analysis. The Public Analyst submitted his report that the samples of beson and moongdal (whole), sent to him, for analysis, were found adulterated. 2. In the case at hand, we are concerned with the conviction of the accused-petitioners for sale of adulterated moong daal (whole) and we, therefore, keep ourselves confined to the accused-petitioners' trial for allegedly selling the adulterated moongdal (whole). 3. Based on the report of the Public Analyst, Assam, that the sample of moong daal (whole), received by him, was found adulterated inasmuch as the same did not conform to the standard, the Food Inspector applied to the Local (Health) Authority for sanction and, on receiving the requisite sanction, submitted a complain, in writing, to the Chief Judicial Magistrate, Cachar, Silchar, seeking prosecution of the accused-petitioners under Section 7 read with Section 16 of the PFA Act. Notices, as required by Section 13(2) of the PFA Act, were sent to both the accused-petitioners informing them that if they so chose, they could get the sample analyzed by Central Food Laboratory. The accused-petitioners did not, however, apply for sending one of the samples of the said food article, kept in the custody of the Local (Health) Authority, to the Central Food Laboratory for analysis. 4. The accused-petitioners did not, however, apply for sending one of the samples of the said food article, kept in the custody of the Local (Health) Authority, to the Central Food Laboratory for analysis. 4. At the trial, when a charge under Section 7 read with Section 16 of the PFA Act were framed against the present accused-petitioners, both of them pleaded not guilty thereto. 5. In support of their case, prosecution examined the Food Inspector as the only witness. The two accused were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, while the accused-petitioner No. 1, namely, Sukumar Roy, responded by saying that he had received the report of public analyst, which is claimed to have been sent to him in terms of Section 13(2) of the PFA Act, the accused-petitioner No. 2, namely, Sujit Roy, responded by saying that he did not remember if he had received the said report of the Public Analyst The defence, too, adduced evidence by examining both the accused-petitioners. 6. Having, however, found both the accused-petitioners guilty of the offence charged with, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Since the appeal, which the accused-petitioners had preferred, stands dismissed, the accused-petitioners are, now, before this court challenging, with the help of the present revision, finding of guilt reached against them and the consequential sentences, which have been passed against them. 7. I have heard Mr. J. Roy, learned Counsel for accused-petitioners, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 8. While considering present revision, it is pertinent to note that the Food Inspector claims that in terms of the instructions of the Local (Health) Authority, he sent, in terms of the requirements of Sections 13(2), the report of the Public Analyst to both the accused-petitioners by Peon Book. Though the Food Inspector has proved the signatures of the two accused-petitioners, there is no evidence on the record that he (Food Inspector) was acquainted with the hand-writing and/or the signature of either of the two accused-petitioners' nor is there any evidence on record indicating that the' signatures aforementioned had been put, on the said Peon Book, by the two accused-petitioners in the presence of PW1 (Food Inspector). Far from this, the Food Inspector, during his cross-examination, recalled the name of the said Peon as Phani Bhusan Das; but the said Phani Bhusan Das was never examined as a witness. 9. Strictly speaking, therefore, the signatures of the two accused-petitioners, in the Peon Book, had not been proved and the fact as to whether the two accused-petitioners had or had not received the Public Analyst's report, thus, remained unproved facts. 10. In the circumstances mentioned above, one is required to consider the evidence of the accused-petitioners and what transpires from their evidence is that they denied that they had received the notices, which were claimed to have been sent to them in terms of the requirements of Section 13(2). The evidence, so given, remained unshaken in the cross-examination. 11. Situated, thus, it is clear that the prosecution had failed to prove that any notice, as has been provided by Section 13(2), was sent to, and received by, the two accused-petitioners. 12. The question, which, now, arises for consideration is: When a notice, in terms of the mandate of Section 13(2), is not received by the vendor concerned, what would be the consequence ? 13. While considering the question, posed above, it is of paramount importance to note that in State of Orissa Vs. Gauranga Sahu, reported in 2003 Cr LJ 3077 (SC), the question raised was: whether, on finding that the mandate of sub-section (2) of Section 13 of the PFA Act had been complied with, the High Court ought to have acquitted the accused holding that a statutory valuable right, available to the accused, had been taken away. Dealing with this aspect of the matter, the Supreme Court observed and held as follows: 4. It is argued on behalf of the accused that mere dispatch of the report is not enough: and that the prosecution is further obliged to proved that the letter so dispatched had reached the addressee, i.e. the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but also a statutory requirement to be mandatorily observed in all the cases. Dispatch of such a report is intended in inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory. (Emphasis is added) 14. Dispatch of such a report is intended in inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory. (Emphasis is added) 14. From what have been held by the Supreme Court in Gauranga Sahu (supra), it becomes transparent that the prosecution, besides proving that a copy of the public analyst's report had been forwarded to the accused in terms of Section 13(2)of the PFA Act, must also prove that the notice/letter, dispatched in terms of Section 13(2), had reached the addressee i.e. the accused, for, this obligation is not a mere ritual, but a statutory mandate, which must be observed in all cases. 15. The law, so clearly laid down by the Supreme Court, in Gauranga Sahu (supra), leaves no room for doubt that compliance of Section 13(2) will not be treated complete unless the prosecution discharges its additional obligation of proving, by adducing cogent evidence, that the notice, issued under Section 13(2), has been served upon, and/or received by, the accused. 16. The object, as the decision in Gauranga Sahu (supra) reflects, is to 'inform' the accused about his valuable right to get the sample analysed by the Central Food Laboratory. Whether in the facts of a given case, the notice can be treated to have been served on an accused or not will, however, be a question of fact, which has to be determined on the basis of the facts of the given case. In the set of facts proved in Gauranga Sahu (supra), the Court held that the letter, issued in terms of Section 13(2), had been proved to have been received by the accused. 17. That Section 13(2) is mandatory, in nature, has been accepted by this Court in its decision, namely, Shyamal Nag Vs. State of Assam, reported in 2004 (1) GIT 667, wherein the Court has observed, on taking note of the decision in Gauranga Sahu (supra), thus: ....It can be safely said the Section 13(2) is mandatory in nature and it confers valuable right on the accused, denial of which would constitute prejudice to the accused entitling him to acquittal. (Emphasis is added) 18. (Emphasis is added) 18. The question, which, now, arises, is: whether non-compliance of Section 13(2) will per se vitiate the trial or the accused is required to prove that prejudice has been caused to him, because of non-service of the public analyst's report While dealing with this aspect of the matter, it is of prime importance to note that to receive 'fair trial' is the constitutional right of every accused and the State carries the corresponding duty, in terms of Article 21 of the Constitution, to provide 'fair trial' to the accused. The right to have 'fair trial' by an accused means that the trial has to be fair at its every stage. 19. When the Supreme Court has held, in Gauranga Sahu (supra), that the forwarding of a letter/notice alongwith the report to the accused, in terms of Section 13(2), constitutes a valuable right of the accused to get the sample analysed by the Central Food Laboratory, it logically follows that the compliance of Section 13(2) becomes mandatory, for, this compliance becomes a condition precedent for a 'fair trial'. If it is not followed, then, the provisions of Section 13(2) being mandatory, the non-compliance thereof will per se vitiate the trial. 20. It was sought to be raised, on behalf of the prosecution, that even if there is no direct or cogent evidence to prove that the notice, under Section 13(2), had been received by the accused, the accused can very well, while appearing in the Court, in pursuance of the summons issued for trial, apply for sending one part of the sample to the Central Food Laboratory (hereinafter as 'the CFL'). While considering this facet of the prosecution's argument, it is imperative to note that the object of Section 13(2), as the decision in Gauranga Sahu (supra), shows and as has been pointed out herein above, is that the accused be 'informed' of his right to get the sample analysed from the CFL. 21. While considering this facet of the prosecution's argument, it is imperative to note that the object of Section 13(2), as the decision in Gauranga Sahu (supra), shows and as has been pointed out herein above, is that the accused be 'informed' of his right to get the sample analysed from the CFL. 21. In view of the fact that the object of giving of a notice, under Section 13(2), is really to 'inform' the accused of his valuable right to get the sample analysed from the CFL, it is not enough for the prosecution to say, in the light of the decision in Gauranga Sahu (supra), that the accused ought to have known the law that he has the right to get the sample analysed from the CFL. The obligation of the prosecution is really to 'inform' the accused of his right to get the sample analysed from the CFL. If the accused in not informed that he has a right to send the sample for analysis, the mere fact that the report had been received by the accused will be of no material consequence. 22. Considered thus, the object, under Section 13(2), is not to merely ensure that the accused gets, if he so opts, analysed a part of the sample from the CFL, but the purpose is also to 'inform' the accused that he has such a right vested in him. Giving of adequate 'information' is, thus, an essential ingredient of Section 13(2) and this cannot be said to have been achieved unless cogent evidence is adduced to show that such an 'information' had, indeed, been made available to the accused. 23. In a prosecution under the PFA Act, it is essentially the report of the Public Analyst, which forms the basis for conviction of the accused; hence, it is quite logical that the legislature, in their wisdom, deemed it mandatory for the State to not only serve a copy of the Public Analyst's report on the accused, but also to 'inform' the accused of his right to get the sample analysed from the CFL. It further logically follows that if merely a copy of the report of the Public Analyst is served on the accused, this, in itself, will not constitute compliance of Section 13(2). It further logically follows that if merely a copy of the report of the Public Analyst is served on the accused, this, in itself, will not constitute compliance of Section 13(2). Far from this, the prosecution has also the obligation to prove, convincingly and beyond doubt, that the accused had been 'informed' that he had a right to get analysed the sample by the CFL. If this 'information' is not given to the accused, serving of the report of the Public Analyst on the accused, will be a mere ritual and will not satisfy the rigour of Section 13(2). 24. A microscopic reading of the provisions of Section 13(2) shows, if I may reiterate, that the object, behind Section 13(2), is not merely to make a report of the Public Analyst reach the accused, but also to 'inform' him that he has a right to get the sample examined by the CFL. The underlying emphasis, in Section 13(2), is on the word 'information'. The dictionary meaning of the word 'information' is the knowledge communicated or received concerning a particular fact or circumstance, that is to say, let the accused know that he has a right to get the sample analysed by the CFL. Thus, Section 13(2) is an exception to the general philosophy that ignorance of law is no excuse and it can be no argument that irrespective of the fact whether the accused had received the notice under Section 13(2) or not, he could have, on his appearance in the Court, prayed for sending a part of the sample to the CFL for analysis. 25. In Ratanlal Agarwalla Vs. State of Assam, (1993) 1 GLR 286, the Full Bench of our High Court construed that the word 'forward', used in Section 13(2), indicates that the obligation of the prosecution is merely to send notice to the place or destination and does not mean 'serve' or 'deliver'. Having so construed, the Full Bench concluded that Section 13(2) is 'directory' and its noncompliance would not per se vitiate the trial. 26. Having so construed, the Full Bench concluded that Section 13(2) is 'directory' and its noncompliance would not per se vitiate the trial. 26. In view, however, of the fact that the Supreme Court has, now, held, in Gauranga Sahu (supra), that the prosecution's burden is not discharged merely by sending the notice under Section 13(2), but it must also ensure that the notice is received by the accused, for, the purpose of dispatch of the report is to 'inform' the accused of his valuable right to get the sample analysed from the CFL, there can be no escape from the conclusion that Section 13(2) is mandatory and noncompliance thereof per se vitiates the trial. 27. Since the object of Section 13(2) is really to 'inform' the accused that he has the option to get the sample analysed by the CFL, it is clear that for achievement of this object, the condition precedent is that the notice, under Section 13(2), be received by, and/or served upon, the addressee. Hence, if the report of the public Analyst is merely sent with a forwarding letter and even if the same is received by the addressee, the provisions of Section 13(2) will not be complied with, for, mere receipt of the report by the addressee does not fulfill the object of Section 13(2) until the 'information' is also given to the addressee that he has the option to get the sample analysed by the CFL. 28. Because of the fact that the object of Section 13(2) is to 'inform' the accused of his right to get the sample analysed by the CFL, its non-compliance will per se vitiate the trial and, in such a case, prejudice will be implicit in such non-compliance, for, the accused would not be knowing that he has the right to get sample analysed and the report, which the Public Analyst has given, can be superseded by the result, which the analysis from by CFL will render. The lack of 'information', on the part of the accused, is, in itself, a cause of prejudice and the same is sufficient to vitiate the trial. 29. As the object of the PFA Act is to prevent adulteration of food, this. Act embodies very stringent provisions for penalty by making minimum imprisonment of three months mandatory. The lack of 'information', on the part of the accused, is, in itself, a cause of prejudice and the same is sufficient to vitiate the trial. 29. As the object of the PFA Act is to prevent adulteration of food, this. Act embodies very stringent provisions for penalty by making minimum imprisonment of three months mandatory. Since the scheme of this Act shows that the conviction of the accused, eventually, rests on the Public Analyst's report and when the legislature, in its wisdom, has used the word 'inform' under Section 13(2), the provisions of Section 13(2) have to be strictly construed. Construed thus, it becomes clear that it is imperative for the prosecution to prove that the accused knew that he had a right to get sample analysed by the CFL and that this knowledge has been derived by the accused from the notice issued under Section 13(2). If the prosecution fails to prove such knowledge on the part of the accused, it will but be necessary for the Court to treat that prejudice has been caused to the accused by non-compliance of this mandatory requirement 30. Because of what have been discussed and pointed out above, the two accused-petitioners could not have been convicted of the charge framed against them. 31. In the result and for the foregoing reasons, this revision succeeds, the impugned judgments and orders are hereby set aside. Both the accused-petitioners held not guilty of the charge framed against them and they are acquitted of the same. Send back the LCR.