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Madhya Pradesh High Court · body

2013 DIGILAW 369 (MP)

Kamla Prasad v. State of M. P.

2013-03-19

N.K.Gupta

body2013
ORDER 1. The applicant was convicted for the offences punishable under sections 7(1)/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 [hereinafter it would be referred to as “the PF Act”] vide judgment dated 21.6.1988 passed by the learned ACJM Katni in criminal case No. 1916/82 and sentenced for six months’ RI with fine of Rs. 1,000/-. In criminal appeal No. 17/88, the learned 1st Additional Sessions Judge Mudwara, District Katni vide judgment dated 10.1.1997 dismissed the appeal. Being aggrieved with the aforesaid judgments the applicant has preferred the present revision. 2. The prosecution’s case, in short is that, on 23.10.1981 the Food Inspector BK Verma (PW 1) inspected the shop of the applicant and he proposed to take a sample of Soyabean oil. Thereafter, 375 gms. of Soyabean oil was taken from the applicant and cost of that oil was paid to the applicant and a receipt was also obtained. The sample of Soyabean oil was packed in three different clean and smell less bottles in equal quantity and thereafter obttles were sealed and a paper seal was affixed on the sample issued by the Public Analyst. One packet of sample was sent to the Public Analyst, whereas remaining two packets of sample were deposited in the Local Health Authority. According to the Public Analyst, the sample was found adulterated and after getting a sanction from the Deputy Director Food and Drugs Administration, a complaint was filed against the applicant. Also a notice under section 13(2) of the PF Act was given to the applicant. 3. The applicant abjured his guilt. He took a specific plea that the Food Inspector demanded a sum of Rs. 400/- and when that sum was not given to him, a false case was prepared by the Food Inspector. However, no defence evidence was adduced before the trial Court. 4. The learned ACJM after considering the prosecution’s evidence convicted and sentenced the applicant as mentioned above, whereas the appeal filed by the applicant was dismissed. 5. I have heard the learned counsel for the parties. 6. Looking to the evidence given by the Food Inspector Shri Verma (PW 1), it appears that he took the sample of Soyabean oil from the shop of the applicant. 5. I have heard the learned counsel for the parties. 6. Looking to the evidence given by the Food Inspector Shri Verma (PW 1), it appears that he took the sample of Soyabean oil from the shop of the applicant. No enmity is shown between she applicant and the Food Inspector so that it may be accepted that the applicant was falsely implicand in the matter by the Food Inspector. The applicant could not prove the demand of Rs. 400/- extracted by the Food Inspector and therefore, the procedure adopted by the Food Inspector cannot be disbelieved. 7. However, it is apparent that copy of the notice under section 13(2) of the PF Act was produced by the Food Inspector before the trial Court but neither any acknowlegment receipt nor any postal receipt was submitted before the trial Court. It is necessary for the Food Inspector to prove that the notice under section 13(2) of PF Act was received by the concerned accused. If the notice is prepared but not sent to the accused then, it was not at all compliance of the provision of section 13(2) of the PF Act. If the notice is sent by RAD post and a receipt relating to the dispatch of the post is shown then, according to the provisions of General Clauses Act, it can be presumed that notice was received to the applicant but in the present case, the Food Inspector could not submit any postal receipt or any acknowledgment receipt to show that the notice was sent to the applicant and therefore, a non-compliance of section 13(2) of the PF Act is apparent from the record. 8. Non-compliance of the provision of section 13(2) of the PF Act is fatal in all cases because the accused is deprived of his valuable right to get his sample sent to the Central Food Laboratory for its examination. It is possible that some mistake would have committed by the Public Analyst and therefore, the accused has a right to get his sample verified from the Central Food Laboratory. Therefore, after getting the report of the Public Analyst, which was not given to the accused/applicant by the Food Inspector then, it was a clear violation of right of the applicant under section 13(2) of the PF Act and therefore, such violation is fatal in the present case. Therefore, after getting the report of the Public Analyst, which was not given to the accused/applicant by the Food Inspector then, it was a clear violation of right of the applicant under section 13(2) of the PF Act and therefore, such violation is fatal in the present case. The applicant could not get his sample tested from the Central Food Laboratory and therefore, he could not be convicted for the offence of adulteration. The learned ACJM as well as learned 1st Additional Sessions Judge, Katni have committed an error of law in convicting the applicant for the offence punishable under sections 7(1)/16(1)(a)(i) of the PF Act. It is a fit case in which an interference is required from the side of this Court by way of the present revision in the impugned judgments passed by the both the Courts below. 9. On the basis of aforesaid discussion, the revision filed by the applicant is hereby allowed. The conviction as well as the sentence directed by both the Courts below are hereby set aside. The applicant is discharged from the charges of the offences punishable under sections 7(1)/16(1)(a)(i) of the Prevention of Food Adulteration Act. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court. 10. The applicant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged . 11. Copy of the order be sent to the trial Court as well as appellate Court along with their records for information and compliance.