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2017 DIGILAW 403 (JHR)

Jagdish Mahto v. State of Jharkhand

2017-02-28

RONGON MUKHOPADHYAY

body2017
JUDGMENT : Heard Mr. A.K. Sahani, learned counsel for the petitioner and Mr. Krishna Shankar, learned A.P.P. for the State. 2. This application is directed against the judgment dated 26.06.2001 passed by the learned 4th Additional Sessions Judge, Hazaribagh in Cr. Appeal no. 49 of 1995 whereby and whereunder the judgment and order of conviction and sentence dated 15.04.1995 passed by the learned Sub Divisional Judicial Magistrate, Hazaribagh in C. No. 6/89 by which the petitioner has been convicted for the offences punishable u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentencing him to undergo R.I. for 6 months and a fine of Rs. 1000/- has been affirmed. 3. It appears from the prosecution report that the Food Inspector has visited the shop of the petitioner and has purchased Haldi powder which was subsequently sent for analysis before the public Analyst, Patna who had found the Haldi powder adulterated leading to institution of the criminal case. 4. It has been submitted by the learned counsel for the petitioner that the petitioner was never made aware of his right in moving the court after receipt of report of the public Analyst to get it tested by the Central Food Laboratory. Learned counsel for the petitioner submits that the act on the part of the prosecution is in violation of Section 13 (2) of the Prevention of Food Adulteration Act, 1954. Learned counsel for the petitioner further submits that neither prosecution witnesses nor documentary evidence substantially points to the involvement of the petitioner in dealing with adulterated haldi. In the alternative an argument has been advanced by the learned counsel for the petitioner that if this Court is not inclined to interfere in the judgment and order of conviction the period of sentence awarded to the petitioner be modified in view of the fact that the petitioner is facing the rigors of the prosecution case since the year 1989 and has for some time remained in custody. 5. Learned A.P.P. for the State has opposed the prayer made by the petitioner. 6. It appears that the prosecution in support of its case had examined three witnesses. C.W.1 Lakhan Dhobi is the Food Inspector, C.W.2 Raj Mani Kumar and C.W. 3 Ram Narayan Singh both are the employees of the Mines Board and are witnesses with respect to the purchase of the haldi powder from the shop of the petitioner. 6. It appears that the prosecution in support of its case had examined three witnesses. C.W.1 Lakhan Dhobi is the Food Inspector, C.W.2 Raj Mani Kumar and C.W. 3 Ram Narayan Singh both are the employees of the Mines Board and are witnesses with respect to the purchase of the haldi powder from the shop of the petitioner. The main witness of the prosecution is C.W.1 the Food Inspector and the complainant. This witness has stated that after the sample of haldi powder was taken from the shop of the petitioner the same got sealed and one packet was sent for analysis before Food Analyst at Patna. This witness has also stated that the report of the Food Analyst disclosed that the haldi powder was found to be adulterated as it had excess chromate and lead. This witness has also stated that the report of the Public Analyst was served upon the petitioner and an endorsement was given on the report itself by the petitioner. C.W.1 is therefore a witness on the point of collecting the sample of haldi powder and sending the report to the analyst and subsequently after getting sanction from the competent authority had instituted the prosecution report. However, a pertinent question has been raised by the learned counsel for the petitioner with respect to non-compliance of Section 13 (2) of the Prevention of Food Adulteration Act, 1954. Although, the said contention was advanced before the learned courts below but the same has been dealt with merely by stating that since the petitioner had put his endorsement on the backside of the said report (Exhibit-6) compliance with respect to Section 13 (2) of the Prevention of Food Adulteration Act, 1954 had been made. Although, the said contention was advanced before the learned courts below but the same has been dealt with merely by stating that since the petitioner had put his endorsement on the backside of the said report (Exhibit-6) compliance with respect to Section 13 (2) of the Prevention of Food Adulteration Act, 1954 had been made. In order to appreciate the contention advanced by the learned counsel for the petitioner it would be necessary to reproduce Section 13 (2) of the Prevention of Food Adulteration Act, 1954 which reads as under:- “Section 13(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.” 7. Sub-section 2 of Section 13 thus reveals that after the report of the Public Analyst is received and after institution of the prosecution against the person from whom the sample had been taken forward a copy of the report of the result of the analysis informing such person that if he is so desired he may make an application to the Court within a period of ten days from the date of receipt of a copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. A bare reading of subsection 2 of Section 13 reveals that the same is a mandatory provision which has to be strictly complied with. A bare reading of subsection 2 of Section 13 reveals that the same is a mandatory provision which has to be strictly complied with. In the present case it appears that the report of the Public Analyst had been served upon the petitioner and the endorsement of the petitioner finds place in the backside of the report. Nothing has come forward either oral or documentary to suggest that the petitioner was informed about his right as envisaged in Section 13 (2) of the Act to prefer an application before the concerned court to get the food article examined by the Central Food Laboratory. Merely because the petitioner had signed on the Public Analyst report the same cannot by any stretch of imagination be said to be in strict compliance of Section 13 (2) of the Act as has been concluded by the learned courts below. The valuable right of the petitioner having been extinguished by the prosecution therefore his conviction u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 cannot be sustained and accordingly the judgment and order of conviction and sentence passed against the petitioner by the learned trial court and affirmed by the appellate court are hereby set aside. 8. This application is allowed. The petitioner is discharged from the liability of his bail bond.