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2016 DIGILAW 3923 (ALL)

NAGAR SWASTH ADHIKARI, NAGRA v. KALI CHARAN

2016-12-06

SHAILENDRA KUMAR AGRAWAL

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JUDGMENT : Shailendra Kumar Agrawal, J. 1. Heard learned counsel for the appellant and learned A.G.A. for the State and perused the record. 2. This criminal appeal has been filed against the judgment and order dated 09.08.1979 passed by Additional Chief Judicial Magistrate, Agra in criminal case no. 3606 of 1977 acquitting the respondents from an offence under Section 7/16 of the Prevention of the Food Adulteration Act. During appeal the respondent no. 2 Beni Singh died and his appeal has been abated vide order dated 27.04.2006. 3. The appellant was complainant in the trial court. As per prosecution story Shri Shyam Manohar, Food Inspector checked Kali Charan, respondent no. 1 on 04.09.1975 at about 11.00 a.m. at Lal Masjid while he was taking milk for sale. The Food Inspector gave his introduction and served a notice as per Rule 12 of the Rules. He obtained acknowledgment Ex. Ka1 and purchased 670 milliliter milk and paid 1.25 paisa. The sample milk was divided in three equal parts and each part was kept in separate dry and clean bottles. Eighteen drops of formalin was added in each of the bottles. The bottles were labled and sealed according to the rules. One of the phials was given to the accused. Receipt Ex. Ka2 was obtained from the accused for the sample phial given to him and for the money paid to him. Spot note Ex. Ka3 was prepared, three copies of Form No. 7 were filed. One of the copies Ex. Ka4 and other phials were sent to the Public Analyst. A copy of Form No. 7 was also separately sent to the Public Analyst. The Public Analyst vide its report dated 09.09.1975 declared the sample to be deficient in non-fatty solids of about 10% as judged on the basis of the standards for buffalo milk. Dr. B.S. Kulshresth accorded the formal sanction Ex. Ka6 and instituted the complaint Ex. Ka7 against accused Kali Charan and Beni Singh. Name of Beni Singh was given by accused Kali Charan to the Food Inspector as the owner of the milk. 4. These two accused/respondents were summoned to face their trial under Section 7/16(1)(1) of the Prevention of the Food Adulteration Act. 5. The prosecution examined this Food Inspector Shyam Manohar as PW-1 and no other witness was examined by the prosecution inspite of giving sufficient opportunities by the learned trial court. 6. 4. These two accused/respondents were summoned to face their trial under Section 7/16(1)(1) of the Prevention of the Food Adulteration Act. 5. The prosecution examined this Food Inspector Shyam Manohar as PW-1 and no other witness was examined by the prosecution inspite of giving sufficient opportunities by the learned trial court. 6. Both the accused/respondents pleaded not guilty to the charges. Accused/respondent Beni Singh said that he has no concern with the milk and accused/ respondent Kali Charan admitted that sample of his milk was taken but added that his milk was not for sale and that the sample was taken by force. He denied the fact that he was given any notice or paid for his milk, but he admitted that he was given a sample phial, he also added that he was taking Beni Singh's milk to the house of Ram Swarup, but the accused did not give any defence evidence. The learned trial court finding not guilty any accused of any charge acquitted them. Against the order of this acquittal, this appeal has been filed by Nagar Swasthya Adhikari, Agra. 7. It has been argued on behalf of the appellant that the accused persons could not take the benefit of Rule 9(j) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the “Rules”) because it was not mandatory rather only directory. Against the order of this acquittal, this appeal has been filed by Nagar Swasthya Adhikari, Agra. 7. It has been argued on behalf of the appellant that the accused persons could not take the benefit of Rule 9(j) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the “Rules”) because it was not mandatory rather only directory. In the same way as per Section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the “Act”) as was applicable on the date of the incident, it was the duty of accused/ respondent himself that after institution of the prosecution to move an application to the court for sending the part of the sample to the Director of Central Food Laboratory for a certificate and it was not obligatory on the part of the prosecution, rather accused were required by law itself to move an application after paying the prescribed fee if they wanted the part of the sample available with them to be sent to the Director of Central Food Laboratory for analysis and in case the accused fails to move any such application, they cannot be permitted to raise plea that he was deprived of his rights to have the sample analysed by the Director of Central Food Laboratory and in his support the counsel for the appellant drew my attention regarding the finding given in judgment of this Court dated 24.07.2009 passed in Criminal Appeal No. 500 of 1980 (Nagar Swathya Adhikari, Nagar Mahapalika, Agra vs. Mahendra Singh). As the incident is of dated 04.09.1975. Firstly this Court has to see what was the Rule 9(j) on the date of incident and what was the provision in Section 13(2) of the Act, 1954. 8. As per Rule 9 (j) of the Prevention of Food Adulteration Rules, 1955, it shall be duty of the Food Inspector:- “(j) to send by registered post, a copy of the report received from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However in the case the sample conform to the provisions of the Act or Rules made thereunder, then the person may be informed of the same and report need not be sent.” 9. It was only on 18th July, 1968 that clause (j) was inserted in the Rule 9. However in the case the sample conform to the provisions of the Act or Rules made thereunder, then the person may be informed of the same and report need not be sent.” 9. It was only on 18th July, 1968 that clause (j) was inserted in the Rule 9. At that stage it merely provided that the Food Inspector should send a copy of the said report (in case it was adverse) by hand or registered post to the person from whom the sample was taken as soon as the case was filed, in court though it did not then lay down any time limit within which the copy of the report of the Public Analyst was required to be supplied by the Food Inspector to the accused. Six years later, however, on the 13th February, 1974 clause (j) of Rule was amended and it then provided for a copy of the report being given to the accused by the Food Inspector within 10 days of its receipt from the Public Analyst. Now this Rule has been deleted and a new Rule 9(a) has been inserted in its place to be effective from 4th January, 1977. For the purposes of this appeal, the Rule 9(a) has no role. Clause (j) of Rule 9 (8 times) was only one of the ten duties, which were led on the Food Inspector by Rule 9. It may also be mentioned that Section 13(2) of the Act, as was in force on the date the taking of sample from the appellant provided that “after institution of prosecution under this Act, the accused, vendor or the complainant may, on payment of prescribed fee, make an application to the Court for sending the part of the sample mentioning in sub-clause (i) or sub-clause (iii) of clause (c) of sub-Section (1) of Section 11 to the Director of Central Food Laboratory for a certificate, and on receipt of the application, the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-Section (1) of Section 11 are intact and may then dispatch the part of the sample under its own seal to the Director of Central Food Laboratory, who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis. 10. 10. Thus it is, therefore, clear that Rule 9(j) of the Rules has imposed a duty on the Food Inspector after receiving the report from the Public Analyst to send a copy of the report to the accused if the report discloses that a sample was not in-conformity with the aforesaid Act or the Rules made thereunder. The provisions of Rule 9(j) of the Rules have been made to enable the accused to know the result of the analysis made by the Public Analyst in regard to the sample taken from him and also to apply in the Court under Section 13(2) of the Act on analysis of the sample delivered to him by the Food Inspector at the time of taking the sample, by the Director of Central Food Laboratory. The provisions of Section 13(2) of the Act as it existed on the date of this occurrence have conferred a right on the accused to have the sample of the food again analysed by the Central Food Laboratory. 11. Now the question that arises for decision in this appeal is whether the provisions of Rule 9(j) of the Rules and Section 13(2) of the Act were mandatory on the date of taking the sample from the respondent or merely directory. 12. In Dal Chand vs. Municipal Corporation, Bhopal and Another, Criminal Law Journal 448, the Hon'ble Apex Court held that Rule 9(j) of the Rules was directory and not mandatory and in the same way Section 13(2) of the Act as existed prior to 1st April, 1976 was not mandatory. It was only directory. As these accused/ respondents have failed to move any application before the trial court for sending the sample to the Director of Central Food Laboratory for certificate, as so contemplated in Section 13(2) so whether now respondents cannot be permitted to raise the plea that they were deprived of their rights. I do not agree with the arguments of the learned counsel for the appellant that this Rule was only directory and not mandatory because the Hon'ble Apex Court itself has held that the accused has to show that his rights have been prejudiced due to non-compliance of Rule 9(j) of the Rules. If no prejudice is shown to have been caused to the accused, non-compliance of Rule 9(j) of the Rules cannot be made a ground to acquit the accused. If no prejudice is shown to have been caused to the accused, non-compliance of Rule 9(j) of the Rules cannot be made a ground to acquit the accused. In the same way unless it shows that the accused had moved an application to send the sample to the Director of Central Food Laboratory, the accused has no locus to raise plea that he has been deprived of his rights to have the sample analysed by the Director of Central Food Laboratory and it has been argued on behalf of the appellant that the learned trial court must have recorded a clear finding on the question whether or not the rights of the respondents were prejudiced due to non-compliance of the said provision and without recording any such finding, the learned trial court acquitted the respondents. The acquittal order, therefore, cannot be sustained. 13. As per Rule 9(j) of the Rules, it was the duty of the Food Inspector to send by registered post, a copy of the report received from the Public Analyst to the accused within 10 days of the receipt of the said report. In this case PW1 has stated in his examination-in-chief that the copy of the report of Public Analyst was sent in information. What does he mean by using the words “sent in information”, is not clear, to when and through whom this copy of report of Public Analyst was sent, is not clear and not proved and in cross-examination he admitted that he did not receive the copy of the report of Public Analyst. It reaches to the office and the copy of the report of Public Analyst would have been sent to the accused through office. He did not send. Thus it is not on the record that the copy of the report of the Public Analyst was sent to the accused by the Food Inspector by ordinary post or by registered post as he himself not received this. The learned lower court discussed regarding the supply of copy of the report of the Public Analyst to the accused. The learned lower court has given its finding that counsel for the prosecution has acted negligently in not getting it proved through acceptable evidence although it was necessary as per provisions of Rule 9(j) and it was required on the part of the prosecution to prove this fact. The learned lower court has given its finding that counsel for the prosecution has acted negligently in not getting it proved through acceptable evidence although it was necessary as per provisions of Rule 9(j) and it was required on the part of the prosecution to prove this fact. There is nothing on record, which may prove that copy of the report of Public Analyst was ever supplied or sent to the accused/ respondents, hence the respondents were prejudiced and this was the sufficient ground to acquit the accused. Thus, it is clear that in the absence of the report of Public Analyst, the accused could not exercise his right of getting the sample examined through Central Food Laboratory. Thus, he was prejudiced. The report of the Public Analyst is dated 9th September, 1975. It has been signed by the Public Analyst on 3rd October, 1975. This complaint has been signed by Nagar Swasthya Adhikari on 22.12.1975 and the complaint has been lodged in the court on 31.01.1976 and he was summoned for the date 24.04.1976. Then how the accused could have exercised his right as mentioned in Rule 9(j) and Section 13(2) of the Act. In these circumstances as the Food Inspector has not served a copy of the report of the Public Analyst on the respondents within 10 days of the receipt of the same, the accused has established material prejudiced by such an infringement, as such, violation thereof would ipso-facto vitiate the prosecution. As this incident is of dated 04.09.1975 and Food Inspector did not send the copy of report of Public Analyst neither by registered post nor ordinary dock within 10 days of the receipt of the said report and the respondent Kali Charan was to appear in the court on 24.04.1976. Thus the prosecution of the respondents was held up for a period of almost 8 months, the bottle containing the sample which had been handed over to the appellant was bound to have got decomposed to such a extent to render its analysis by the Director of the Central Food Laboratory completely useless. Thus the valuable right given to the respondents/ accused under Section 13 of the Act was bound to be frustrated. Thus the valuable right given to the respondents/ accused under Section 13 of the Act was bound to be frustrated. When the respondents/ accused could not and did not have any information until after the expiry of 8 months from the date on which samples were taken and he was being prosecuted in respect of the milk sample, his right given under Section 13 was bound to stand frustrated and rendered negutary. 14. Where the cognizance of the complaint was itself delayed, either by reason of delay in the Public Analyst report, or by reason of delay on the part of the authorities concerned in filing the complaint, or by reason of delay as a result of inaction on the part of Magistrate in taking cognizance of the complaint, no blame can be laid at the door of the accused, and the case against the accused is liable to be thrown out as has been held in the case of Netram vs. State, 1968 Allahabad Criminal Cases 226. When the incident is of dated 04.09.1975 and complaint has been lodged in the court on 31.01.1976, why prosecution committed this delay in launching the prosecution and no explanation is forthcoming, why complaint in the court was filed after lapse of more than five and half months while the report was signed by the Public Analyst on 3rd October, 1975. This is, therefore, clearly a case where respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. 15. When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. The right is a valuable one, because the certificate of the Director of the Central Food Laboratory supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that for his satisfaction and proper defence, he should be to have the sample kept in his charge analysed by a greater expert, whose certificate is to be accepted by court as conclusive evidence. Obviously, the right has been given to the vendor in order that for his satisfaction and proper defence, he should be to have the sample kept in his charge analysed by a greater expert, whose certificate is to be accepted by court as conclusive evidence. In such cases where there is denial of his right on account of the conduct of the prosecution, the vendor in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein and in this case the prosecution has failed that the copy of the report of the Public Analyst was ever sent to the vendor (accused) and how the vendor (accused) can be expected to get the sample verified from the Central Food Laboratory. 16. It is clear from the judgment of the trial court that the learned lower court did not acquit the accused on this sole ground, rather the learned lower court gave its finding that there is no evidence that the accused/respondent no. 2 Beni Singh was the owner of this milk because there is only statement of PW-1 Food Inspector that the co-accused Kali Charan told him that this milk belongs to Beni Singh. That confessional statement of one co-accused was not admissible against another co-accused Beni Singh. The statement of PW-1 has not been corroborated by any other witness of fact. 17. This witness is also admitting the fact in his cross-examination that when he obtained signature of accused on Ex. Ka1, at that time Ex. Ka3 was blank. This ground is sufficient itself to acquit the accused. In a routine manner PW-1 is admitting that when he stopped the accused Kali Charan, at that time he called the witnesses, but no one turned up. This is not sufficient explanation of the witness. The witness is also admitting the fact that he obtained the signature of the accused on Ex. Ka-1 earlier. It shows that without writing anything on Ex. Ka1 the signatures of the accused was obtained. It means that the document was blank. In these circumstances how prosecution version can be admitted and accepted. The witness is also admitting the fact that he obtained the signature of the accused on Ex. Ka-1 earlier. It shows that without writing anything on Ex. Ka1 the signatures of the accused was obtained. It means that the document was blank. In these circumstances how prosecution version can be admitted and accepted. This is an incident of the year 1975, 41 years have elapsed and the sample which was delivered to the respondents, as stated by the PW-1, must have decomposed and as such no fruitful purpose would be served in remitting the case to the learned Magistrate for fresh decision and the learned A.G.A. himself submitted that 41 years have elapsed and no purpose will be served. 18. In my opinion after a lapse of such time, question of invoking the provisions of Section 13(2) of the aforesaid Act by the respondent does not arise, hence the appellant has no ground to challenge the merit of judgment in question and the appeal is liable to be dismissed. 19. The appeal is dismissed. The judgment and order of the learned lower court is confirmed. 20. The respondent Kali Charan is on bail. His bail bond and surety bond shall stand discharged. He is directed to make compliance of Section 437A Cr.P.C. within one month from the date of this order by appearing before the court concerned at District Agra and execute personal bond and one surety to the satisfaction of court concerned. 21. Let a copy of this order be sent to the lower court for intimation and compliance.