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2019 DIGILAW 48 (ALL)

Mata Prasad v. State Of U. P.

2019-01-05

JAYANT BANERJI

body2019
JUDGMENT : Jayant Banerji, J. Heard Sri Sukesh Kumar, learned counsel for the revisionist and Sri Patanjali Mishra, learned A.G.A for the State. 2. By means of this revision, the judgement and order dated 12.2.2004, passed by the Additional Sessions Judge, Court No.5, Varanasi in Criminal Appeal No. 60 of 2003 ( Mata Prasad Vs. State of U.P) as well as judgement and order dated 7.6.2003, passed by the Additional Chief Judicial Magistrate, Court no.1, Varanasi in Criminal Case No. 147 of 1997 (State Vs. Mata Prasad), under Section 7/16 of the Prevention of Food Adulteration Act, 1954[Act of 1954] have been challenged, whereby, the revisionist has been convicted under Section 7/16 of the Act of 1954 and sentenced to rigorous imprisonment of four month and a fine of Rs. 600/ and in default of payment of fine, further one month simple imprisonment has been ordered. 3. The case of the prosecution is that the Food Inspector, Varanasi, Sri Raj Narain Singh on 30.12.1995 purchased 450 gms food items Dhania (coriander) from the premises of the revisionist for getting the same analyzed by the Public Analyst. Form No.6, under Rule 12 of the Prevention of Food Adulteration Rules, 1955[Rules of 1955] was prepared on which the revisionist refused to sign. However, one witness Daya Shanker Singh signed as witness on that document. An endorsement was further made by the Food Inspector that he called the local people of the area to witness the same but they refused to give their names or address for the purpose. The purchased 'Dhania' was divided in three equal parts and were collected in clean dried empty bottles which was sealed thereafter. One part of the sample so collected was sent along with copy of Form No. VII to the Public Analyst, U.P. at Lucknow for analysis of adulteration. The report of the Public Analyst reveals that the adulteration in the food item exceeded maximum prescribed limit of 8% and the sample destroyed by insects exceeded 5% and in the sample, dead and living insects were also found. Along with all the documents and form, an application was sent to the Chief Medical Officer/Local Health Authority, Varanasi for according permission for prosecution and after obtaining his permission, the complaint application was filed before the Court. The court took cognizance on the basis of the complaint lodged and the case was committed to trial. Along with all the documents and form, an application was sent to the Chief Medical Officer/Local Health Authority, Varanasi for according permission for prosecution and after obtaining his permission, the complaint application was filed before the Court. The court took cognizance on the basis of the complaint lodged and the case was committed to trial. The accused-revisionist appeared before the court. 4. On 28.8.1998, the charges were framed against the accused-revisionist under Section 7/16 of the Act of 1954. 5. The Food Inspector, Raj Narain Singh was testified as PW-1 on oath who proved Form VI (Ext. Ka-1), receipt ( Ext. Ka-2), Form No.VII ( Ext. Ka-3), Public Analyst report ( Ext. Ka-4), application to the Chief Medical Officer for according permission for prosecution (Ext. ka-5), permission for prosecution (Ext. Ka-6) and the complaint (Ext. Ka-7). Thereafter, Ashok Kumar Srivastava who was Food Clerk also testified as PW-2. 6. PW-2 proved the Ext. Ka-6 as well as letter sent to the accused-revisionist dated 24.1.1997 (Ext. Ka-8), whereby, the accused-revisionist was informed that he could get the sample analyzed by the Central Food Laboratory as well as receipt of registered letter issued by the post office ( Ext. Ka-9). No other witness was examined by the prosecution. 7. The accused-revisionist gave his statement under Section 313 of the Code of Criminal Procedure [The Code], in which he stated that wrong sample was taken and that he was wrongly implicated in the case. The accused-revisionist also offered to give his justification/defence. In his defence, one Sabhanand Mishra was produced on behalf of the accused-revisionist as DW-1. DW-1 in his testimony stated that he belongs to the same village as the accused-revisionist and that the accused-revisionist neither had any shop nor does he do any agriculture work. 8. The Magistrate after analyzing the evidence and testimonies of the witnesses concluded that the accused-revisionist was guilty under Section 7 read with Section 16 of the Act of 1954 and convicted him with sentence of four month RI and Rs. 600/ as penalty and in case of failure to deposit the penalty, a further one month simple imprisonment was ordered by the Magistrate by means of his judgment and order dated 7.6.2003. 600/ as penalty and in case of failure to deposit the penalty, a further one month simple imprisonment was ordered by the Magistrate by means of his judgment and order dated 7.6.2003. Challenging the judgment and order of the Magistrate, an appeal bearing Criminal Appeal No. 60 of 2003 was filed by the accused-revisionist before the District & Sessions Judge, Court no.5, Varanasi, who by a judgement and order dated 12.2.2004, dismissed the appeal and against dismissal of the aforesaid criminal appeal, this revision has been filed. 9. Learned counsel for the revisionist has vehemently argued that Form No.6 that was issued by the Food Inspector by taking of collection of sample does not bear the signature of the accused-revisionist nor of any witnesses other than one Daya Shanker Singh. It is stated that it was incumbent on the prosecution to have produced Daya Shanker Singh to prove Form No.6 and that not having been done, the document has been wrongly found to be proved by the courts below. It is, therefore, his contention that the mandatory provision of sub-section (7) of Section 10 of the Act of 1954 has been violated. It is also his contention that the mandatory requirement of sub-section (2) of Section 13 of the Act of 1954 has not been made inasmuch as copy of the report of the analysis by the Public Analyst along with information was not duly served on the accused-revisionist. It is also his contention that admittedly, the sample that was collected on 30.12.1995 was received by the Public Analyst on 13.8.1996 as is reflected by Ext. Ka-4 and thus the express provision of sub-section (3) of Section 11 of the Act of 1954 has been clearly violated which provides for sending the sample of the article of food to the Public Analyst of the local area concerned by the Food Inspector by the immediately succeeding working day. Lastly, it is also his contention that the provision of sub-section (4) of Section 11 of the Act of 1954 has been violated inasmuch as the article of food that was seized was not produced before the Magistrate within the time prescribed. It is also contended that about 23 years have passed since the sample was collected and that the revisionist is more than 70 years old and is on dialysis and undergoing immense physical and mental trauma. It is also contended that about 23 years have passed since the sample was collected and that the revisionist is more than 70 years old and is on dialysis and undergoing immense physical and mental trauma. Therefore, he deserves to be acquitted. 10. Learned A.G.A on the other hand has strongly opposed the contention advanced by the learned counsel for the revisionist and has stated that the courts below have convicted the revisionist after analyzing all factual material and evidence on record and there is no illegality in the judgement and order of sentence passed by the court below that would merit interference of this Court in exercise of its jurisdiction under Section 397/401 of the Code. It is his contention that in the statement given by the accused-revisionist under Section 313 of the Code, no specific defence was raised by him that may entitle him to either reduction of sentence or of his acquittal. 11. The lower appellate court in its judgement has referred to Form No.VI (Ext. Ka-1) and has observed that the Food Inspector could not have compelled any person to give witness on the document concerned and has found that there is no material on which it could be gathered that the statement made by the Food Inspector was not believable. With regard to letter dated 24.6.1997 (Ext. Ka-8), not having been duly served on the accused-revisionist, the courts below have referred to the document produced by PW-2 who has also proved letter dated 24.1.1997 being sent by the registered post with the receipt of the post office bearing No. 4413 and has found that the said document whereby the accused-revisionist was offered opportunity for getting the sample again analyzed by the Central Food Laboratory at Kolkata and enclosing thereto the report dated 10.9.1996 of the Public Analyst that it had been duly served on the accused-revisionist. The lower appellate court has also considered the evidence of DW-1 with reference to statement made by the accused-revisionist under Section 313 of the Code. The accused-revisionist in his statement under Section 313 of the Code neither stated whether he does the work of agriculture or that he had no shop. Therefore, the testimony of DW-1 has not been relied upon. 12. The accused-revisionist in his statement under Section 313 of the Code neither stated whether he does the work of agriculture or that he had no shop. Therefore, the testimony of DW-1 has not been relied upon. 12. With regard to the contention raised by the learned counsel for the revisionist regarding violation of sub-section (4) of Section 11 of the Act of 1954, a perusal of the judgement of the court below reveal that at no point of time, this issue was ever raised before the court below by the defence. Further, learned counsel has not been able to demonstrate any violation of sub-section (4) of Section 11 of the Act of 1954. 13. However, with regard to contention of the learned counsel for the accused-revisionist regarding mandatory requirement of subsection (3) of Section 11 of the Act of 1954, admittedly the sample was received on 13.8.1996 by the Public Analyst at Lucknow. Nowhere has any date been mentioned when the sample collected by the Food Inspector on 30.12.1995 was sent to the Public Analyst. The provisions of sub-section (3) of Section 11 is as follows: “(3) When a sample of any article of food or adulterant is taken under sub-section (1) or sub-section (2) of section 10, the food inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be, in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.” 14. In a case of the present nature, it is necessary for the prosecution to prove and demonstrate that various provisions specifying conformity with due opportunity, proper procedure and principles of natural justice were specifically complied. It is for the prosecution to demonstrate that the sample was sent immediately by the immediately succeeding day after it was taken under sub-section (1) or sub-section (2) of section 10 of the Act of 1954 or on a day proximate to the date of collection of the sample. 15. It is for the prosecution to demonstrate that the sample was sent immediately by the immediately succeeding day after it was taken under sub-section (1) or sub-section (2) of section 10 of the Act of 1954 or on a day proximate to the date of collection of the sample. 15. The Food Inspector who was examined as PW-1 in his cross examination has stated as follows:- ^^izn'kZ d & 4 PA fjiksVZ esjs }kjk Hksts x;s uewus ds lEcU/k es ugh gS cfYd esjs }kjk ,df=r uewus dh nwljh QkbZy tks LHA }kjk Hksth x;h Fkh mlds lEcU/k es gSA ;g izn'kZ d & 4 uewus ds ysus ds vkB eghus ckn dh tkap fjiksVZ gSA bl uewus es dhV Hkf{kr fu/kkZfjr ek=k ls vf/kd gSA blds vykok dskbZ nks"k ugh gSA eSus uewuk ysrs le; ugh fy[kk gS fd uewuk ?kwuk gqvk fn[kkbZ iM jgk gSA LokHkkfod #i ls ;fn /kfu;k dkQh fnu rd j[kk tk;sxk rks ?kqu tk;sxk vkSj le; ds vuqlkj c preservative dk mYys[k ugh fd;kA n;k'kadj flag vlokyiqj ds jgus okys ,d ukxfjd gSA vlokyiqj ls egqofj;k dh nwjh 3 & 4 fdeh gksxkA egqofj;k ,d xkao gSA ftles ;g nqdku lMd ij gSA cktkj Vkbi ugh gSA PA fjiksVZ ns[kus ls mudh ;ksX;rk dk Kku ugh gks jgk gSA izn'kZ d & 6 es cgqr lh bckjrs dVh gS o vksoj Vkbi fd;k x;k gSA ijUrq fdlh dk y?kq gLrk{kj ugh cuk gSA izn'kZ d & 6 dks ns[kus ls ;g Hkh Li"V ugh gks jgk gS fd /kfu;k dks fdl vk/kkj ij vifefJr ik;k x;kA /kfu;k [ksrh dk izksMDV gSA vkSj izkjfEHkd QwM gSA bl nqdkunkj dks eS igys ls tkurk FkkA mlds ikl dskbZ ykblsUl ugh gSA izn'kZ d & 6 ij 21-1-97 rkjh[k nh x;h gSA ;g dguk xyr gS fd bl nqdkunkj ls eSus dksbZ uewuk ugh fy;kA uewuk ,d lk/kkj.k vyekjh es j[kk tkrk gSA vkSj mlh es dkQh fnuks ds iqjkus uewus Hkh j[ks jgrs gSA ;g eS ugh crk ldrk fd uewus es ?kqu dh ek=k c< tkuk iqjkus uewuks ds lkFk j[kk gksuk Hkh gks ldrk gSA uewus ds tkap gksus rd tkMk vkSj cjlkr dk lhtu chr pqdk FkkA^^ 16. Therefore, even the Food Inspector, has admitted that, firstly, other than the amount of insect eaten 'dhania' being beyond the prescribed limit, there was no other fault in the sample taken and, secondly, that in natural course when Coriander is stored for several days, it would be infected by insects which would multiply by passage of time. 17. While analyzing the requirement of sub-section (3) of section 11 of the Act of 1954, the provisions of Rule 17 of the Rules of 1955 are also referred to below: “17. Manner of despatching containers of samples.-The containers of the sample shall be despatched in the following manner, namely:- (a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means; (b) The sealed containers of the remaining two parts of the sample and two copies of the memorandum in Form VII shall be sent in a sealed packet to the local (health) Authority immediately but not later than the succeeding working day by any suitable means; (c) The sealed container of one of the remaining two parts of the sample and a copy of the memorandum in form VII kept with the Local (Health) Authority shall within a period of 7 days be sent to the public analyst on requisition made by him to it by any suitable means; Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in form VII shall contain the following additional information, namely:- (a) Grade; (b) Agmark label No./Batch No; (c) Name of packing station.” 18. Thus, a perusal of this rule itself reveals that the container of sample shall be despatched in a sealed container and one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means. 19. A perusal of Form VII that is available on record of the lower court and which is marked as Ext. ka-3 bears the date 30.12.1995. However, date of despatch of the sample along with this Form VII is not mentioned. Moreover, no preservative was added to the sample. 19. A perusal of Form VII that is available on record of the lower court and which is marked as Ext. ka-3 bears the date 30.12.1995. However, date of despatch of the sample along with this Form VII is not mentioned. Moreover, no preservative was added to the sample. A perusal of the report by the Public Analyst bearing No. 8379 dated 10.9.1996 shows that it is a certificate issued by S.P. Srivastava, Public Analyst, U.P. at Lucknow who certified that the sample was received on 13.8.1996. It is stated that 100 alive and dead insects are present in 100 gms of the sample and the percentage of sample destroyed by insect is 24.3%. It has accordingly, been opined by the Public Analyst that the amount of external adulterant exceeds prescribed limit of 8% and the amount of sample that has been destroyed by insects exceeds 5% and alive and dead insects are present in the sample. The sample was examined on 24.8.1996. 20. This Court in the case of Balji Vs. State of State [(1981) SCC OnLine All.1032] while considering the contention on behalf of the petitioner regarding breach of section 11(3) of the Act of 1954 and Rule 17 of the Rules of 1955 and hence the conviction is vitiated. The foundation of that argument was that admittedly, the Food Inspector had taken the sample on 3.11.1978. However, one phial of sample was forwarded to the Public Analyst on 6.11.1978. This Court held as follows:- “6..........................It is a well settled principle of law that the word ‘shall’ is by itself not conclusive on the question whether the provision is mandatory or directory and the matter has to be considered in the light of the whole scheme of the Act. The object to be secured by the provision, the mischief that is sought to be prevented and the relative mischief that is likely to result from the breach of the provision. While looked at in this way there does not appear to be any particular sanctity behind the time limit of next working day. The time which is itself flexible for if a number of holidays intervene this time limit may well extend to beyond that number of days after the date of sample taking. While looked at in this way there does not appear to be any particular sanctity behind the time limit of next working day. The time which is itself flexible for if a number of holidays intervene this time limit may well extend to beyond that number of days after the date of sample taking. The only intention is that the Food Inspector should officially be as prompt as possible and should not take thing easy, Maxwell in Interpretation of Statutes, 11th Edn. at page 369 has observed. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done. That the Act was directory only and might be complied with after the prescribed time. “On these principles the time limit under section 11(3) or Rule 17 cannot be held to be mandatory because a breach of the strict time limit does not affect any right of the accused nor lead to any general inconvenience or injustice”. Therefore, the provision has to be regarded as only directory and in the absence of negligence or prejudice a breach of this time limit must be held as not vitiating the conviction. 21. In another case of Division Bench of this Court in the case of Gajraj Vs. State and others [1982 (19) ACC 12] while answering a reference made by a single Judge pertaining to section 11(1) (a) of the Act of 1954, referred to the fact that the Food Inspector collected sample of cow milk on 17.10.1977 which was dispatched for analysis to the Public Analyst on 19.10.1977. It was urged by the counsel for the petitioner in that case that the provision of Section 11(1)(c)(i) was mandatory and the contravention of that provision would render the conviction of the applicant illegal. The question for consideration by the Bench was whether one day's delay on the part of the Food Inspector to send the sample for analysis to the public analyst vitiates his action in obtaining the report from the public analyst. The question for consideration by the Bench was whether one day's delay on the part of the Food Inspector to send the sample for analysis to the public analyst vitiates his action in obtaining the report from the public analyst. This Court observed as follows:- “There can be no manner of doubt that the provision in sub-section (3) of Section 11 requiring that the Food Inspector must forward the sample collected by him for analysis to the Public Analyst by the immediately succeeding working day casts a duty on the Food Inspector. The Food Inspector has been so saddled with this duty with a view that the sample sent by him may be effectively analysed by the Public Analyst and may (sic) delay on his part may not interfere with it's proper analysis. The legislative intention in making the aforesaid provision clearly is not to confer any right on the person from whom the sample has been obtained or to give him an immunity from prosecution if the sample is not despatched for analysis by the immediately succeeding working day. Quite clearly the idea in imposing the obligation upon the Food Inspector was to see that the interest for the prosecution was not jeopardised by the Food Inspector acting lethargically and sending the sample collected by him for analysis late and with a view to avoid such changes, taking place in the sample which may interfere with it's proper analysis. The Rule of interpretation in such a case seems to be that where a public officer is directed by a statute to perform a duty within a specified time, the provisions as to time are only directory and in deciding whether a provision is mandatory or directory the possibility of justice suffering from a too rigid application of time limit should be taken into account See Velliappa v. Subrahmanyan and P.M.A. Vallappa Cliettiar v. S.N. Subrahmaniyam Chetty. Although the Act requires the Food Inspector to forward the sample collected by him for analysis by the immediately succeeding working day, in a particular case the Food Inspector may not be able to do so for a variety of reasons. Although the Act requires the Food Inspector to forward the sample collected by him for analysis by the immediately succeeding working day, in a particular case the Food Inspector may not be able to do so for a variety of reasons. The legislative intention could never be that if the sample of food was not sent by the immediately succeeding working day but was sent a day or so thereafter, the report given by the Public Analyst should be ignored even though no factor has intervened which may interfere with proper analysis of the food. We are accordingly of opinion that the action of the Food inspector in depositing the sample of food collected by him in the office of the Nagar Swastha Adhikari before despatching the same to the Public Analyst for analysis did not rule in any contravention of the provisions contained in Section 11(1)(c)(i) of the Act. Furthermore, the provisions contained in sub-section (3) of Section 11 of the Act laying down that the Food Inspector shall send the sample of food collected by him for analysis to the Public Analyst by the immediately succeeding working day are directory in nature. So long as the sample of food has been forwarded to the Public Analyst for analysis expeditiously and in circumstances where the conditions interfering with proper analysis of the sample do not occur, the provisions of Section 11(1)(c)(i) and subsection (3) of Section 11 of the Act would stand substantially complied with. We answer the first question, referred to us by Bakshi, J. accordingly.” 22. Even though in the above judgements, the High Court has held Section 11(3) of the Act to be directory in so far as time specified for sending the sample to the Public Analyst is concerned, however, that observation has been qualified that in the absence of negligence or prejudice a breach of time limit must be held as not vitiating the conviction. Further, the Division Bench interpreted the provision fixing the time limit observed that quite clearly the idea in imposing the obligation upon the Food Inspector was to see that the interest for the prosecution was not jeopardized by the Food Inspector acting lethargically and sending the sample collected by him for analysis late and with a view to avoid such changes taking place in the sample which may interfere with it's proper analysis. 23. 23. Coriander, being a food item, is suspect able to be infected with insects as was admitted by the Food Inspector (PW-1) himself in his cross examination. No preservative was added to the sample. He admitted that when the coriander is stored for several days, it would be infected by insects which would multiply by passage of time. About 8 months had elapsed since the date of collection of the sample till the date of receipt of sample by the Public Analysis. Therefore, it is concluded that the Food Inspector had acted lethargically in sending the sample collected by him for analysis belatedly, which is a case of sheer negligence. After nearly 8 months, as admitted by PW-1, it was natural for the insects to multiply in the sample. Thus, the delay has interfered with proper analysis of the sample and has prejudiced the revisionist. Even though, the revisionist did not chose to send the sample to the Central Food Laboratory after receipt of the notice, that would not operate to the disadvantage of the revisionist inasmuch as more than 8 months had elapsed from the date of collection of the sample and sending the sample to the Central Food Laboratory by the revisionist would not have served any purpose. 24. It has been held time and again that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. The Supreme Court in Saumindra Bhattacharya Vs. State of Bihar and another [ (2010) 15 SCC 338 ] has observed as follows:- “11. In Nazir Ahmad V. King Emperor, it has been held (AIR p. 257). “... that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.” and further; (Nazir Ahmad case, AIR p 257). “......... it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves.” The observations aforesaid are extremely relevant to the facts of the present case. A very detailed procedure has been prescribed under which the samples are taken and handled (Section 11) and then as to how the complaints, etc. A very detailed procedure has been prescribed under which the samples are taken and handled (Section 11) and then as to how the complaints, etc. are to be filed and entertained by the Magistrate (Section 12 and 20). The procedure prescribed must, of necessity, be adopted without any departure.” 25. In view of the aforesaid, the procedure prescribed under subsection (3) of section 11 of the Act of 1954 is to be adopted without any departure. As observed above, it was incumbent on the prosecution to have established that the procedure prescribed under sub-section (3) of section 11 of the Act of 1954 had been complied with in letter and spirit. It has not been demonstrated that the sample was dispatched expeditiously in the manner prescribed in section 11(3) read with Rule 17 of the Rules of 1955. The report of the Public Analyst itself reveals that the sample was received on 13.8.1996 i.e. after a period of more than 8 months from the date of collection of sample and the sample was analysed on 24.8.1996. Moreover, the date of the Public Analyst's report is 10.9.1996. It has been accepted by the Food Inspector who appeared as PW-1 in his cross examination that the coriander was suspect able to be infected by insects which would go on multiplying by passage of time. He also admitted that the sample was analyzed after the winter and rainy seasons had passed. 26. As has also been argued by the learned counsel for the revisionist that the revisionist is more than 70 years old and is suffering from kidney problem and is undergoing dialysis, he is undergoing a lot of trauma. 27. In view of the aforesaid, the conviction of the accused-revisionist by the courts below cannot be sustained. The judgment and orders dated 12.2.2004, passed by the Additional Sessions Judge, Court No.5, Varanasi in Criminal Appeal No. 20 of 2003 ( Mata Prasad Vs. State of U.P) as well as judgement and order dated 7.6.2003, passed by the Additional Chief Judicial Magistrate, Court no.1, Varanasi in Criminal Case No. 147 of 1997 are hereby set aside. The accused revisionist is on bail. He is hereby acquitted and bail bonds are discharged. 28. The revision stands allowed.