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2019 DIGILAW 2289 (ALL)

Mohammad Aslam v. State of U. P.

2019-09-27

SUDHIR AGARWAL

body2019
JUDGMENT : SUDHIR AGARWAL, J. 1. Heard Sri. Arpit Agarwal, learned Counsel for revisionist and learned A.G.A. for State. 2. This Criminal Revision under section 401 read with section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 9.5.1991 passed by Additional Chief Judicial Magistrate, Nageena, Bijnor in Criminal Case No. 1865 of 1990 convicting and sentencing revisionist under section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ‘Act 1954’). There against accused-revisionist preferred Criminal Appeal No. 43 of 1992 which has been dismissed by Sessions Judge, Bijnor vide judgment and order dated 14.8.1992. This revision has been filed challenging both the aforesaid orders. 3. Counsel for revisionist contended that revisionist is entitled for benefit under Probation of Offenders Act, 1958 (hereinafter referred to as ‘Act 1958’) but I find that punishment has been awarded under the provisions of Food Adulteration Act, wherein minimum sentence of six months and fine of Rs. 1000/- has been provided and hence in such a case, Act, 1958 will not apply as held by Supreme Court in State through S.P. New Delhi vs. Ratan Lal Arora, 2004 (49) ACC 469 (SC) : 2004 (19) AIC 822 followed in State of Madhya Pradesh vs. Vikram Das, (2019) 4 SCC 125 : 2019 (201) AIC 121 (SC). 4. It is next contended that there is non compliance of section 13(2) of Act, 1954 inasmuch the report of Public Analyst was not served upon revisionist and Court below treated compliance of section 13(2) only on the ground that report was sent by registered post on the address of revisionist is sufficient compliance. 5. I find force in the submission. 6. Learned A.G.A. could not dispute that this approach of Courts below is not consistent with the exposition of law laid by Supreme Court very recently in Vijendra vs. State of U.P. and Others (Criminal Appeal No. 1167 of 2019 and S.L.P. (Criminal) No. 4314 of 2015 decided on 31.7.2019 and in para-15 of judgment, Court has said as under: “The very purpose of furnishing such report is to enable the Accused to seek for reference to the Central Food Laboratory for analysis if the Accused is dissatisfied with the report. Such safeguard provided to the Accused Under Section 13(2) of the Act is a valuable right. Such safeguard provided to the Accused Under Section 13(2) of the Act is a valuable right. In that view even if the despatch of the report on 7.4.1980 is taken as substantial compliance though it is beyond the period of 10 days from 18.3.1980 i.e. the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the accused in the instant facts the valuable right available to the accused/appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the appellant/accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of this case, since as already noticed above the report of the Analyst has not in fact been served on the appellant and the mere despatch of the report as per the statement of PW-2 was not sufficient.” (Emphasis added) 7. Therefore, as a proposition of law, it cannot be doubted that prosecution, when challenged, must satisfy that notice issued under Section 13(2) has been served upon accused because it is right of accused and prosecution must prove that not only report of Public Analyst was sent by registered post, but it was actually served upon accused-Revisionist, which has not been done in the case in hand. 8. In the result, this revision is allowed. Impugned judgments and orders dated 9.5.1991 and 14.8.1992 are hereby set aside. 9. Certify this judgment to the lower Court immediately.