Brandavan vs State of M.P. and another

U.C. Maheshwari, J.

Being aggrieved by the judgment dated 6th December, 1997, passed by the First Additional Sessions Judge, Hoshangabad, in Criminal Appeal No. 125/89, whereby the judgment dated 4-10-1989, passed by Chief Judicial Magistrate, Hoshangabad in Criminal Case No. 233/84 by which applicant found guilty and convicted u/s 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (for short ''the Act'') and awarded sentence for one year rigorous imprisonment (for short ''R.I.'') with fine of Rs. 1,000/-, has been upheld by reducing R.I. upto six months. Hence, this revision petition has been preferred u/s 397/401 Criminal Procedure Code (for short ''the Code'').

Brief facts of the prosecution are that Non-applicant No. 2 D. R. Chorasia being Food Inspector of the State under his authority inspected applicant on 20-1-1984 when applicant was carrying cow milk at Satgarha (Satrasta) Hoshangabad. On asking, the applicant was not having any license for selling the food substance and, thereafter the said Inspector after giving him notice has purchased milk 660 ml. for sample, took sample of milk and Panchanama Ex.P/12 was prepared for taking sample. On the same date Form No. VII was also prepared and one of the samples was sent to the Public Analyst (for short ''P.A.'') on the same day by special Messenger.

After examination, the report (Ex.P/17) was given by the Public Analyst, by which alleged sample was not found as per standard prescribed under the Schedule of the said Act. As per this report (Ex.P/17) the sample was not found as per standard prescribed under the law and report was given as "does not confirm". After receiving the said report by taking appropriate sanction the complaint was submitted by the said Inspector. It was said that the notice u/s 13(2) of the Act was also sent. The trial was proceeded in which prosecution examined two witnesses namely Mad an Lal Mamore (P.W.1l) and Dayaram Chorasia (P.W. 2) Food Inspector, while applicant examined one witness Ramesh Kumar (D.W.I) in his defence. The Trial Court vide its judgment convicted and sentenced applicant as mentioned above. On filing the appeal, the judgment was affirmed as said above.

I have heard the counsel of the respective parties.

Counsel for applicant submitted that at the time of taking the sample the milk of the concerned pot was not stirred as such the milk was not homogenous and if without stirring the sample was taken then it cannot be said that it was a representative sample. He further submitted that the concerning special messenger, by whom the sample was sent to the Public Analyst along with the Form No. VII, not examined as such the source for sending the sample to Public Analyst has not been proved. Besides this, the concerning receipt, which is said to have been issued by the State Laboratory has also not been proved by calling the concerning witnesses of that Office, and, therefore, receiving same sample by the Public Analyst was also not proved and if the same was sent through postal department then neither postal receipts nor any other documents have been produced or proved. His another submission was that as per section 13(2) of the Act, no notice was given by the prosecution and regarding this registered postal receipt was neither produced nor proved, as such, applicant was deprived by his valuable rights to examine the sample from Central Food Laboratory, and, therefore, applicant was entitled for acquittal. But Courts below have committed grave error of jurisdiction in not considering the abovesaid circumstances.

While, on the other hand, the counsel for the non-applicant/respondent/ State has justified the impugned judgment and prayed for dismissal of this revision petition.

In view of the aforesaid submission of applicant, I have perused Panchanama (Ex.P/12), by which, the sample of milk was taken and sealed by the Inspector. I do not find any indication or any sentence about stirring the milk in the pot or can, before taking the sample. Although, during deposition in Court, said Inspector, Dayaram Chaurasia (P.W.2), stated in para-2 about stirring and homogeneousness of the milk. But, Panchanama which was foundation of seizing and sealing the milk does not reflect any contention about it. Then mere on the basis of statement of this witness it cannot be relied safely that the milk was stirred before taking sample and when the sample was not the representative then the accused cannot be brought home to guilt. In support of this contention reliance is placed in the case of Beni Prasad v. State of M.P. reported in 2003 (4) MPU 484 : 2004 1 M.P.W.N. 79, which is rendered by this Court in which it is held that:

Taking into consideration the first point emphasised by Shri Satyendra Patel, learned counsel for the applicant, that before obtaining the sample of the oil, the same was not stirred so as to make it homogeneous. In this context, he has drawn my attention to the ''Panchanama'' (Ex.P-4), the testimony of the Food Inspector T.P. Tiwari and the memo of complaint itself. Nowhere in the ''Panchanama'' or in the complaint, it has been so mentioned that before obtaining the sample, the same was stirred so as to make if homogeneous. The Food Inspector has not deposed this fact even in his testimony. Thus, it is not proved that before obtaining the sample of the oil, the same was stirred so as to make it homogeneous. To bolster his contention, the learned counsel for the applicant has placed reliance upon the case of Suresh Kumar v. State of Haryana, 1991 FAJ 546 in which it has been held that if the sample is collected without thoroughly stirring the bulk and delinquent is convicted then his conviction is bad in law. In the present case also the same principle would be applicable and therefore the applicant cannot be held guilty of offence.

In view of the abovesaid contention Rule 16 of the said Act was not complied by the said Inspector, and, therefore, applicant is entitled to get benefit of this technical violation.

The other aspect is that it is a mandatory duty of the prosecution to prove that the sample which was taken the same was sent to the Public Analyst of the State Food Laboratory, but about sending no messenger was examined and even record of the office about sending like Dispatch Register and Dak Register have also not been filed or proved by the prosecution and if it was sent by the Registered Post then the postal receipt and acknowledgment due receipt should have been filed and proved by the prosecution but this burden was not discharged by the prosecution. So it cannot be said safely that the same sample was sent for analysis. Although Ex.P/14 was put forward which is a simple paper receipt but it was not proved by the concerning clerk or the person of the concerning office where sample was received. In view of this applicant was entitled to get benefit as laid down in the case of Nagar Palika Parishad, Bhind v. Manik Chand Jain reported in 7995 (1) M.P.W.N. 60 reads as under:

Apart from this there was non-compliance of Rules 17 and 18 of Rules referred to above. It has not been proved as to who left the sample with the Public Analyst. Whether it was sent by the post or through messenger is not apparent. All that has been stated at the back of the Form 7 is that sample was received by the Public Analyst at Bhopal on 17th of May, 1982. As to whether this has been sent through some human agency or by registered post is not clear. In any case, the prosecution was supposed to produce the person who had taken the sample to the Public analyst. See: Hariom v. State of Punjab, 1988 FAJ 45 and Nasib Chand v. The State (Union Territory), Chandigarh, 1981 FAJ 156 P&H. Rules 17 and 18 are mandatory. Such is the view expressed in State of Maharashtra v. Rajkaran, 1988 (II) FAC 156.

In view of the aforesaid, applicant was entitled to get benefit by drawing adverse inference against the prosecution in relating to the non-sending the same sample to the Public Analyst.

So far last submission of the applicant is concerned, no postal receipt and acknowledgment due receipt about sending and service of the notice u/s 13(2) of the said Act were neither filed nor proved by the prosecution. Although Ex. P/2 envelop which is unserved envelop and Ex.P/3 acknowledgment Due receipt is also annexed along with Ex.P/1 copy of the Notice. But about sending this notice to the applicant if concerning receipt is not filed or proved then only on the basis of Ex.P/1, P/2 and P/3 it cannot be ascertained that the same envelop was sent to applicant with abovesaid intimation. Reliance is placed in the case Ghansu v. State of M.P. reported in 7999 (7) MPLJ 613 : 7999 (II) M.P. W.N 17 which reads as under:

A Court of law cannot assume that if a copy of such letter exists on the record of the office, the letter must have been sent. There is no such presumption. The presumption that official course of business must have been followed does not extend to the fact that when a copy of a document is in official record, that copy''s original must have been sent to anybody to whom it has been addressed or must have reached there.

The presumption of delivery of a particular letter arises in case of registered letter, only when it is established that the letter, with correct address, was given at the post office. That proof can come only from the postal receipts of the post office where the letter was tendered for onward delivery. If the postal receipt is lost, secondary evidence may be led or oral evidence, of tender at the post office, may be led. Even the number of postal receipts whereby the letter was sent, is not mentioned in memo Ex. P-14-C which is copy of stamp register regarding this letter.

X X X X

It was for prosecution to establish that such a letter was tendered at some post office for delivery to the accused by registered post. This has not been established by statement of B.K. Kachhawaha (PW1) or any other evidence on record.

Besides this, for the sake of arguments, if it is presumed that the notice u/s 13(2) of the Act was properly sent to applicant then too in that circumstance, applicant is entitled to get acquittal in view of non-stirring the milk at the time of sampling and in the lack of the evidence in relating to sending the same sample to Public Analyst.

Therefore, in the aforesaid premises, it is apparent that the impugned judgments are perverse and as such they are not sustainable, and, therefore, the judgments of the Courts below deserve to be and are hereby set aside. Applicant is acquitted and his bail bonds are hereby cancelled. Fine amount, if deposited, be refunded to applicant.

Revision allowed.