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Judgment
G. Minhajuddin, J.—The criminal revision has been filed u/s 397 read with Section 401 of the Code of Criminal Procedure against the judgment dated 17.1.2000 passed by Sessions Judge, Raigarh in Cr.A. No. 47/97, arising out of the judgment dated 28.4.1997 passed by Chief Judicial Magistrate, Raigarh in Cr. Case No. 2121/911 whereby conviction recorded by the CJM, Raigarh and sentence imposed upon the applicant, has been confirmed by the Sessions Judge. Brief facts of the case of the prosecution are that on 12.6.1991 Food Inspector R.K. Bhargav (PW 3) intercepted the applicant at Chhatamuda-Sarangarh road while the applicant was going to sell milk. On being asked, the applicant told R.K. Bhargav (PW 3) that he is carrying cow''s milk. On being examined, there was a suspicion that the milk is adulterated and therefore, written and oral information was given to the vendor (applicant) under Form 6 by the Food Inspector and he purchased 750 ml milk from the applicant for Rs. 4.50 and obtained a receipt thereof. Thereafter, the purchased milk was sealed in three separate vials in accordance with law, Panchanama was prepared at the spot in the presence of witnesses and one of the samples was sent to the public analyst, Bhopal and the remaining two samples were deposited in the office of the Local (Health) Authority and a receipt in lieu thereof was obtained. As per report dated 17.7.1991 of the public analyst, Bhopal and letter dated 29.7.1991 of the Local (Health) Authority, the samples of milk taken from the applicant were found to be adulterated. After completing the proceedings in accordance with law the Food Inspector submitted the charge sheet against the applicant before the Court of Chief Judicial Magistrate, Raigarh.
Learned trial Court framed charges u/s 7(i) read with Section 16(1)(a)(i) of the Food Adulteration Act, 1954 (in short "the Act, 1954") against the applicant, who abjured his guilt. The prosecution in order to establish its case examined four witnesses in all. Statement of the applicant was recorded u/s 313 of Cr.P.C. in which he denied the circumstances appearing in evidence against him and stated that he is an agriculturist by profession and not a milk vendor. He has never gone to Raigarh for selling milk. He also examined Kurso and Punauram in his defence as DW 1 and DW 2.
Learned trial Court after hearing counsel for the parties and considering the material available on record, by the judgment dated 28.4.1997 convicted the applicant u/s 7(i) read with Section 16(1)(a)(i) of the Act, 1954 and sentenced him to undergo RI for six months, pay a fine of Rs. 1,000 and in default thereof, to undergo SI for one month. The applicant preferred an appeal against the above judgment, which has been dismissed by the learned Sessions Judge by the impugned judgment maintaining the conviction and sentence imposed upon the applicant by the trial Court.
Heard learned counsel for the parties, perused the records as well as the judgments of the Courts below.
Contention of learned counsel for the applicant is that the applicant is not a milk vendor and although, as per statement of the Food Inspector R.K. Bhargav (PW 3), he had seized milk vendor''s licence from the applicant, but the same has not been filed by him alongwith the complaint before the Court of CJM, Raigarh. Learned counsel has further contended that the independent witnesses have not supported the case of the prosecution.
On the other hand, learned counsel for the State has supported the impugned judgment and contended that the sentence imposed upon the applicant cannot be modified and reduced because the minimum sentence has been awarded to the applicant. It is further contended that the Food Inspector is not bound to file all the documents alongwith the complaint, which he has seized from the applicant. The fact whether the applicant was a licensed vendor or not is totally irrelevant in the present case.
So far as the question of the applicant being a milk vendor is concerned, according to the Food Inspector R.K. Bhargav (PW 3), he had purchased 750 ml milk from the applicant, who was on his way to sell milk, and on being asked, the applicant had informed him that the milk which he is going to sell, is of cow. Regarding purchase of milk by the Food Inspector R.K. Bhargav (PW 3) from the applicant, the statement of Food Inspector R.K. Bhargav (PW 3) has not been supported by the independent witnesses Kedar Singh (PW 1) and Rajnath Singh (PW 2). Food Inspector R.K. Bhargav (PW 3), in para-9 of his statement has stated that in his presence, the applicant had not sold milk to anyone and he had not made any enquiry whether the applicant used to sell milk or not. Food Inspector R.K. Bhargav (PW 3) has also stated in para-9 of his statement that he had seized the milk vendor''s licence of the applicant, but neither that licence nor the seizure memo by which the same was seized, has been filed by him alongwith the complaint.
Thus, in view of the fact that the independent witnesses Kedar Singh (PW 1) and Rajnath Singh (PW 2) have not supported the statement of Food Inspector R.K. Bhargav (PW 3) on the point of applicant being a milk vendor and the statement of the Food Inspector R.K. Bhargav (PW 3) made in para-9 of his statement, it cannot be said that it has been proved beyond reasonable doubt that the applicant, at the time when the sample of milk was purchased from him by the Food Inspector R.K. Bhargav (PW 3), had actually kept the milk for the purpose of selling.
It is not in dispute that the second sample of milk was not sent for analysis at the instance of the applicant to the Central Food Laboratory in exercise of the right conferred u/s 13(2) of the Act, 1954 upon the applicant. Although the Food Inspector R.K. Bhargav (PW 3) has stated in para-12 of his statement that he had not given any notice to the applicant u/s 13(2) of the Act, 1954, but the document Ex. P13 is on record, which has been filed alongwith the complaint. From perusal of this document Ex. P13, it is evident that information was given to the applicant that one of the samples of the milk purchased from him was sent for analysis to the public analyst and the same has been found to be adulterated as per Ex. P13. The applicant has also been informed that the other two samples of milk have been kept at the office of Local (Health) Authority and the applicant may exercise his right u/s 13(2) of the Act, 1954 of sending the other samples for analysis to the Central Food Laboratory by moving an application before the CJM, Raigarh.
Before proceeding further, it would be appropriate to reproduce Section 13(2) of the Act, 1954, which reads as under:
Report of public analyst--
(1) XXX XXX XXX
(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 u/s 14A, 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 articles of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
At this place, it is also necessary to reproduce Rule 9(b) of the Prevention of Food Adulteration Rules, 1955 (in short "the Rules, 1955"), which reads as under:
9(B). Local (Health) Authority to send report to person concerned--The Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed u/s 14A of the Act.
After minutely perusing the trial Court record, it is found that no document has been filed, on the basis of which it can be said that, a copy of the report of the public analyst was sent to the applicant even after filing of the complaint. From perusal of the order sheets also, it is not found that at any point of time, copy of the report of the public analyst was ever supplied to the applicant. It is by now a settled position that the provisions of Section 13(2) of the Act, 1954 are mandatory in nature. The said provisions not only require that the information regarding the sample of food having been found adulterated has to be given to the person from whom such sample was taken, but it also mandate that a copy of the report of the public analyst must also be sent alongwith the information to the person from whom the sample was taken.
Indisputably, in the instant case, copy of the report of the public analyst was not given to the applicant. As such, the mandatory provisions of Section 13(2) of the Act. 1954 have not been complied with. Although information about the sample having been found adulterated was given to the applicant vide Ex. P13, but as the copy of the report of the public analyst was not sent to the applicant, there was no compliance of the mandatory provisions of Section 13(2) of the Act, 1954 and consequently, the applicant has been deprived of exercising his valuable right of sending the second sample of milk for analysis to the Central Food Laboratory. Thus, non-compliance of the mandatory provisions of Section 13(2) vitiates the trial and the consequent conviction. As such, the trial Court as well as the lower appellate Court have committed a manifest error of law while recording/maintaining conviction of the applicant u/s 7(i) read with Section 16(1)(a)(i) of the Act, 1954 and the same cannot be sustained. In the result, the revision is allowed. Impugned judgment dated 17.1.2000 passed by Sessions Judge. Raigarh in Cr.A. No. 47/97 is hereby set aside. Consequently, the judgment dated 28.4.1997 passed by Chief Judicial Magistrate, Raigarh in Cr. Case No. 2121/91, convicting and sentencing the applicant u/s 7(i) read with Section 16(1)(a)(i) of the Act, 1954 is also set aside. The applicant is acquitted of the aforesaid charge. He is on bail, therefore, his bail bonds are cancelled and he is set at liberty. The fine amount, if deposited, shall be refunded to the applicant.