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2017 DIGILAW 1367 (GAU)

HARI KHANDAL v. STATE OF ASSAM

2017-10-25

MIR ALFAZ ALI

body2017
JUDGMENT : Mir Alfaz Ali, J. Heard Ms. K. Deka, learned counsel for the revision petitioner and Mr. B.B. Gogoi, learned Addl. P.P., Assam for the State. 2. The petitioner herein was convicted under Section 7(1) R/W section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the PFA Act) and he was sentenced to imprisonment for 6 months and fine of Rs. 1000/- by judgment and order dated 11.06.2002 of the learned ADJM, Biswanath Chariali. On appeal, learned Sessions Judge vide his judgment and order dated 27.07.2006 dismissed the appeal and upheld the conviction and sentence of the petitioner. 3. Aggrieved by conviction and sentence of both the courts below, the accused petitioner, preferred the instant revision petition. 4. The short question raised in this revision is whether the provision of Section 13(2) of the PFA Act was complied with? If not, whether the prosecution stood vitiated for non-compliance of the above provision of the PFA Act. 5. Learned counsel for the revision petitioner submits that the specific stand of the accused was that he did not receive the notice under Section 13(2) PFA Act and therefore he was deprived of the right to get the sample analyzed by Central Food Laboratory (hereinafter referred to as CFL). Learned counsel for the revision petitioner further submits that compliance of the provision of Section 13 (2) of the PFA Act is mandatory and non-compliance of such provision in the present case, vitiated the entire proceeding and therefore, learned Trial Court ought to have acquitted the revision petitioner. 6. Resisting the above submission of the learned counsel for the revision petitioner, Mr. B.B. Gogoi, learned Addl. P.P., Assam, contended that notice was sent under Section 13(2) to the accused and to that effect, prosecution adduced sufficient evidence and therefore, there was no question of non-compliance of the provision of Section 13 (2) of the PFA Act and that the revision petition is devoid of merit. 7. The Food Inspector examining himself as PW-1 deposed that after launching the prosecution on the basis of the report of the public analyst, a copy of the report of the public analyst along with a notice under Section 13(2) of the PFA Act was sent to the accused petitioner by registered post. The Food Inspector also proved the copy of the notice as Ext. 19 and the postal receipt as Ext.20. The Food Inspector also proved the copy of the notice as Ext. 19 and the postal receipt as Ext.20. In cross examination, he admitted that the acknowledgement card with regard to service of such notice has not been produced and proved. The accused petitioner in his examination under section 313 CrPC, 1973 categorically stated that he did not receive any notice under Section 13(2) of the PFA Act, nor he received any copy of the report of the public analyst. The accused while examining himself as DW-1 stated categorically that he did not receive the notice from the Local Health Authority. 8. While addressing the issue relating to service and receipt of notice as well as the report of the public analyst by the accused, learned Trial Court held that production of the copy of the notice under Section 13(2) of the PFA Act, which has been marked as Ext.19 and the postal receipt Ext.20 were sufficient for the prosecution to discharge its burden in respect of compliance of the provision of Section 13(2) of the PFA Act. Learned Trial Court further held, that though the accused, in his evidence denied to have received the notice under Section 13(2) of the PFA Act, such evidence of the DW-1 was not supported by any other witness and therefore, the evidence of DW-1 that he did not receive the notice was not believable. Above findings of the learned Trial Court shifting burden on the accused also appeared to have received support from the appellate court. 9. In a criminal case, the accused is always presumed to be innocent, unless his guilt is proved beyond reasonable doubt and it is the burden of the prosecution to prove each and every element of the offence to establish the guilt of the accused. The accused has the right to keep silent. Learned Lower Courts are found to have fallen in error while shifting the burden to prove the non-service or non-receipt of notice under Section 13(2) of the PFA Act to the accused. 10. The accused has the right to keep silent. Learned Lower Courts are found to have fallen in error while shifting the burden to prove the non-service or non-receipt of notice under Section 13(2) of the PFA Act to the accused. 10. Learned counsel for the revision petitioner submits that even if the statement of the Food Inspector, that notice was sent by post is accepted to be correct, that itself would not be due compliance of the provision of Section 13(2) of the PFA Act, for, in addition to the evidence of sending the report, prosecution is also under obligation to prove that such notice or report of the public analyst was received by the accused. To buttress the submission, learned counsel placed reliance on a decision of this Court in Sunil Nath v. State of Assam reported in 2012(4) GLT 592. This Court in Sunil Nath (supra) while confronted with the similar question with regard to compliance of the provision of Section 13 (2) of the PFA Act held in paragraphs-18 and 30 as under "18. 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." "30. Since the object of Section 13(2) is really to 'inform' the accused that he has the option to get the sample analyzed 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 provision of Section 13(2) will not be complied with, for, mere receipt of the report by the addressee does not fulfill under object of Section 13(2) until the 'information' is also given to the addressee that he has the option to get the sample analyzed by the CFL." 11. The Apex Court dealing with this aspect of the matter in State of Orissa v. Gauranga Sahu reported in 2003 Crl. The Apex Court dealing with this aspect of the matter in State of Orissa v. Gauranga Sahu reported in 2003 Crl. L.J. 3077 (SC) held as under "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 prove 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 report is intended in inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory." 12. What therefore follows from the ratio laid down by the Apex Court in Gauranga Sahu (supra) and also of this Court is that sending of the report of public analyst to the accused is not a mere ritual. The object of giving notice or sending a copy of the report of the public analyst is to inform the accused about his valuable right to get the sample analysed by CFL. Since, the proceeding in a food adulteration case primarily based and conviction of the accused ultimately rests on the report of the public analyst and the statute has provided a valuable right to the accused to get the sample re-analysed by CFL, deprivation of the accused of his valuable right to get the sample analysed by CFL would certainly prejudice the accused and thereby vitiate the entire prosecution. What is apparent from the ratio laid down by the Apex Court and also by this Court is that mere proving the sending of notice under Section 13(2) of the PFA Act is not sufficient. Prosecution is also under obligation to prove the statutory requirement, that the report indeed reached the addressee or received by the accused, so as to inform him about the right to get the sample analysed by CFL. 13. The evidence adduced by the prosecution as indicated above shows that the notice was sent by registered post. The copy of the notice and postal receipt, proved as Ext.19 and Ext.20, at best can show that notice was sent. No evidence was adduced to show that the notice was really served or indeed it reached the addressee i.e. the accused. The evidence adduced by the prosecution as indicated above shows that the notice was sent by registered post. The copy of the notice and postal receipt, proved as Ext.19 and Ext.20, at best can show that notice was sent. No evidence was adduced to show that the notice was really served or indeed it reached the addressee i.e. the accused. The acknowledgement card has not been proved. There is even not a whisper in the evidence with regard to service or receipt of the report by the accused. Even if the acknowledgement card was not there, prosecution could have examined the postal peon delivering the notice in order to prove the service or receipt of the notice by the accused. The prosecution is not found to have endeavored to adduce such evidence. What therefore apparent is that, no evidence had been adduced by the prosecution in the instant case to discharge its additional burden to prove, that notice was indeed served and received by the accused. 14. The object of sending report of the public analyst with the notice under Section 13 (2) of the PFA Act being to inform the accused of his valuable right, the absence of evidence to prove the service or receipt of notice by the accused would logically leads to the conclusion that the prosecution has failed to comply with the mandatory statutory requirement and thereby denied the valuable right provided to accused by the statute. Since sending of report of the public analyst to the accused is not a mere ritual but a statutory requirement to be mandatorily followed in order to inform the accused of his valuable right to get the sample analyzed by CFL, the failure of the prosecution to comply with such requirement of Section 13 (2) of the PFA Act certainly caused prejudice to the accused. 15. This Court in Shyamlal Nag v. State of Assam reported in 2004 (1) GLT 667 relying on the decision of the Apex Court in Gaurangalal Sahu (supra) observed that 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. 16. 16. What therefore follows from the above discussion is that, prosecution in the instant case has failed to establish that there was due compliance of the mandatory provision of Section 13(2) of the PFA Act and therefore the accused has certainly entitled to acquittal for non-compliance of the mandatory statutory requirement under Section 13(2) of the PFA Act. 17. On teeth of the foregoing discussions, the revision petition is allowed and the conviction and sentence of the accused petitioner is set aside. 18. Send down the LCR.