Dhananjoy Pal vs State of Assam

I.A. Ansari, J.—This revision has arisen out of the judgment and order, dated 14.03.1997, passed, in Criminal Appeal No. 43 of 1996, by the learned Sessions Judge, Kamrup, Guwahati, dismissing the appeal and upholding the judgment and orders, dated 09.08.1996 and 16.08.1996, passed, in C.R. Case No. 293/93, by the learned Special Judicial Magistrate, 1st Class, Guwahati, convicting the accused-Petitioner u/s 16 read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the "PFA Act") and sentencing him to suffer imprisonment for six months and pay a fine of Rs. 1,000/- and, in default of payment of fine, to suffer simple imprisonment for a period of one month.

The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:

On 28.12.1992, the Food Inspector (P.W. 1), . accompanied by his Office peon (P.W. 2), visited the grocery shop of the accused-Petitioner, situated at Satgaon, which was run under the name and style of M/s. Bharateswari Stores, and, oh finding ''Coriander Powder'' stored there for sale for human consumption, purchased 600 grams of the same after serving, on the accused-Petitioner, a notice in form No. VI (Ext. 1) and paid Rs. 17 as price thereof and the accused-Petitioner acknowledged the same as its vendor by giving receipt, which is Ext. 2. The samples, so collected, were packed and sealed observing all necessary formalities as prescribed under the PFA Act and the Prevention of Food Adulteration Rules (hereinafter referred to as the "PFA Rules"). The Public Analysts, in respect of one part of the sample sent to him for analysis, opined, vide his report (Ext. 7), that the said sample of ''dhania powder'' was adulterated.

During trial, the accused-Petitioner pleaded not guilty to the charge framed against him u/s 16 read with Section 7 of the P.F.A. Act. In support of their case, the prosecution examined two witnesses. The accused was, then, examined u/s 313, Code of Criminal Procedure in his statement, so recorded, the accused-Petitioner did not deny that the sample of'' Dhania Powder'' was taken from him, but he asserted that he had not sold any adulterated ''Dhania Powder''. What he, however, alleged was that he had not received any report that the said ''Dhania Powder'' was adulterated. No evidence was adduced by the defence.

On conclusion of the trial, the learned trial Court, on finding the accused-Petitioner guilty of the charge framed against him, convicted him accordingly and passed sentence against him as hereinabove mentioned. As the appeal preferred by the accused-Petitioner also failed, the accused-Petitioner has, now, impugned the same in the present revision.

None has appeared on behalf of the accused-Petitioner. I have, however, heard Mr. Raj Shekhar, learned Counsel as Amicus Curiae, and Mr. F.H. Laskar, learned Additional Public Prosecutor, Assam.

There is no dispute before me that the only material grievance, which was taken by accused-Petitioner, at the time of his trial, was that no notice, in terms of Section 13(2) of the PFA Act, had been served on him. In short, the accused denied to have received the notice, which P.W. 1 claimed to have been issued u/s 13(2). The learned trial Court, relying upon the decision in Ratanlal Agarwalla v. State of Assam reported in (1993) 1 GLR 286 held that since Ext. 11 is the notice, which was sent by registered post with A.D., and Ext. 12 is the postal receipt, in this regard, these two pieces of evidence, namely, Ext. 11 and Ext. 12 clearly showed that the notice was properly posted after being correctly addressed to the accused-Petitioner and, hence, the notice, so issued, could be lawfully presumed to have been served on the accused. The learned trial Court also observed that there is nothing in the evidence on record to show that any prejudice had been caused to the accused in his taking of any defence in the absence of service of notice u/s 13(2). The learned appellate Court, while dismissing the appeal, merely observed to the effect that for rejecting the plea of the alleged contravention of Section 13(2), the learned Magistrate had assigned cogent reasons.

While considering the above aspect of the matter, what is of utmost importance to note is that in State of Orissa Vs. Gouranga Sahu, the question raised was whether on finding that the mandate of Sub-section (2) of Section 13 of the P.F. Act had been complied with, the High Court ought to have acquitted the accused holding that a statutory valuable right available to the accused had been taken away. Dealing with this aspect of the matter, the Apex Court observed and held as follows:

It is argued on behalf of the accused that mere dispatch of the report is not enough; and that the prosecution is further obliged to proved that the letter so dispatched had reached the addressee, i.e. the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but also a statutory requirement to be mandatorily observed in all the cases. Dispatch of such a report is intended in inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory.

From what have been held by the Apex Court in Gauranga Sahu (supra), it is abundantly clear that the prosecution, besides proving that a copy of the public analysts report had been forwarded to the accused in terms of Section 13(2) of the P.F. Act, must also prove that the notice/letter, dispatched in terms of Section 13(2), had reached the addressee i.e. the accused, for, this obligation is not a mere ritual, but a statutory mandate, which must be observed in all cases. The law, so clearly laid down by the Apex Court, leaves no room for doubt that compliance of Section 13(2) will not be treated complete unless the prosecution discharges its additional obligation of proving, by adducing cogent evidence, that the notice issued u/s 13(2) has been served upon, and or received by, the accused. The object, as the decision in Gauranga Sahu (supra) reflects, is to ''inform'' the accused about his valuable right to get the sample analysed from the Central Food Laboratory. Whether in the facts of a given case, the notice can be treated to have been served on an accused or not will, however, be a question of fact, which has to be determined on the basis of the facts of the given case. In the set of facts proved in Gauranga Sahu (supra), the Court held that the letter, issued in terms of Section 13(2), had been proved to have been received by the accused.

That Section 13(2) is mandatory, in nature, has been accepted by this Court in its decision, namely, Shymal Nag Vs. State of Assam, wherein the Court has observed, on taking note of the decision in Gauranga Sahu (supra), thus,

It can be safely said the Section 13(2) is mandatory in nature and it confers valuable right on the accused, denial of which would constitute prejudice to the accused entitling him to acquittal.

The question, which has been raised now, is as to whether non-compliance of Section 13(2) will per se vitiate the trial or the accused is required to prove that prejudice has been caused to him by non-service of the report. While dealing with this aspect of the matter, it is of immense importance to note that to receive fair trial is the constitutional right of every accused and the State carries the corresponding duty, in terms of Article 21 of the Constitution, to provide ''fair trial'' to the accused. The right to have fair trial by an accused means that the trial has to be fair at its every stagg. When the Supreme Court has held that the forwarding of a letter/notice alongwith the report to the accused, in terms of Section 13(2), constituted a valuable right of the accused to get the sample analysed from the Central Food Laboratory, it logically follows that the compliance of Section 13(2) becomes mandatory, for, this compliance becomes a condition precedent for a fair trial. If it is not followed, then, the provisions of Section 13(2) being mandatory, the non-compliance thereof will per se vitiate the trial.

It was sought to be raised, on behalf of the prosecution, that even if there is no direct or cogent evidence to prove that the notice u/s 13(2) had been received by the accused, the accused can very well, while appearing in the Court in pursuance of the summons issued for trial, apply for sending one part of the sample to (the Central Food Laboratory (hereinafter referred to as ''the CFL''). While considering this facet of the prosecution''s argument, it is imperative to note that the object of Section 13(2), as the decision in Gauranga Sahu (supra), shows and as has been pointed out herein above, is that the accused be informed of his right to get the sample analysed from the CFL.

In view of the fact that the object of giving of a notice u/s 13(2) is really to ''inform'' the accused of his valuable right to get the sample analysed from the CFL, it is not enough for the prosecution to say, in the light of the decision in Gauranga Sahu (supra), that the accused ought to have known the law that he has the right to get the sample analysed from the CFL. The obligation of the prosecution is really to ''inform'' the accused of his right to get the sample analysed from the CFL. If the accused in not informed that he has aright to send the sample for analysis, the mere fact that the report had been received by the accused will be of no material consequence.

Considered thus, the object u/s 13(2) is not to merely ensure that the accused gets, if he so opts, analysed apart of the sample from the CFL, but the purpose is also to ''inform'' the accused that he has such a right vested in him. Giving of the ''information'' is, thus, an essential ingredient of the Section 13(2) and this cannot be said to have been achieved unless cogent evidence is adduced to show that such an ''information'' had, indeed, been made available to the accused.

In a prosecution under the PFA Act, it is essentially the report of the Public Analyst, which forms the basis for conviction of the accused; hence, it is quite logical that the legislature, in their wisdom, deemed it mandatory for the State to not only serve a copy of the Public Analyst''s report on the accused, but also to inform the accused of his right to get the sample analysed from the CFL. It further logically follows that if merely a copy of the report of the Public Analyst is served on the accused, this, in itself, will not constitute compliance of Section 13(2). Far from this, the prosecution has also the obligation to prove convincingly and beyond doubt that the accused had been informed that he had a right to get analysed the sample by the CFL. If this information is not given to the accused, serving of the report of the Public Analyst to the accused wi 11 be a mere ritual and will not satisfy the rigour of Section 13(2).

A microscopic reading of the provisions of Section 13(2) shows, if I may reiterate, that the object behind Section 13(2) is not merely to make a report of the Public Analyst reach the accused, but also to ''inform'' him that he has right to get the sample examined from the CFL. The underlying emphasis in Section 13(2) is on the word ''information''. The dictionary meaning of the word ''information'' is the knowledge communicated or received concerning a particular fact or circumstance, that is to say, let the accused know that he has a right to get the sample analysed from thw CFL. Thus, Section 13(2) is an exception to the general philosophy that ignorance of law is no excuse and it can be no argument that irrespective of the fact whether the accused had received the notice u/s 13(2) or not, he could have, on his appearance in the Court, prayed for sending a part of the sample to the CFL for analysis.

In Ratanlal Agarwalla (supra), the Full Bench construed that the word ''forward'', used in Section 13(2), indicates that the obligation of the prosecution is merely to send notice to the place or destination and does not mean serve or deliver. Having so construed, the Full Bench concluded that Section 13(2) is directory and its non-compliance would not per se vitiate the trial. In view, however, of the fact that the Supreme Court has, now, held in Gauranga Sahu (supra), that the prosecution''s burden is not discharged merely by sending the notice u/s 13(2), but it must also ensure that the notice is received by the accused, for, the purpose of dispatch of the report is to inform the accused of his valuable right to get the sample analysed from the CFL, there can be no escape from the conclusion that Section 13(2) is mandatory and non-compliance thereof per se vitiates the trial. Since the object of Section 13(2) is really to ''inform'' the accused that he has the option to get the sample analysed from the CFL, it is clear that for achievement of this object, the condition precedent is that the notice u/s 13(2) be received by, and/or served upon, the addressee. Hence, if the report of the public Analyst is merely sent with a forwarding letter and even if the same is received by the addressee, the provisions of Section 13(2) will not be complied with, for, mere receipt of the report by the addressee does not fulfill the object of Section 13(2) until the information is also given to the addressee that he has the option to get the sample analysed from the CFL.

Since the object of Section 13(2) is to inform the accused of his right to get the sample analysed from the CFL, its non-compliance will per se vitiate the trial inasmuch as prejudice will be implicit in such non-compliance, for, the accused would not be knowing'' that he has the right to get sample analysed and the report, which the Public Analysted, has given can be superseded by the result, which the analysis from the CFL will render. The lack of ''information'', on the part of the accused, is, in itself, a cause of prejudice and the same is sufficient to vitiate the trial.

Since the object of the PFA Act is to prevent adulteration of food, this Act embodies very stringent provisions for penalty by making minimum imprisonment of three months mandatory. Since the scheme of this Act shows that the conviction of the accused, eventually, rests on the Public Analyst''s report and when the legislature, in its wisdom, has used the word ''information'' u/s 13(2), the provisions of Section 13(2) have to be strictly construed. Construed thus, it becomes clear that it is imperative for the prosecution to prove that the accused knew that he had a right to get sample analysed from the CFL and that this knowledge has been derived by the accused from the notice issued u/s 13(2). If the prosecution fails to prove such knowledge on the part of the accused, it will but be necessary for the Court to treat that prejudice had been caused to the accused by non-compliance of this mandatory requirement.

Bearing in the mind the position of law indicated hereinabove, let me, now, turn to the present case. In the case at hand, Ext. 11 is the notice and this notice is shown to have been sent by the postal receipt, which is Ext. 12. The prosecution did not produce any acknowledgement by the accused in respect of proof of the fact that the said notice had been received by the accused. There is not even an iota of assertion in the evidence given by the Food Inspector (P.W. 1) and/or the Peon (P.W. 2) that any material exists on record to show that the notice (Ext. 11) had been received by the accused-Petitioner.

In fact, while cross-examining the Food Inspector (P.W. 1), the accused-Petitioner denied that he had received the notice (Ext. 11) issued u/s 13(2). This apart, in his examination u/s 313, Code of Criminal Procedure too, the accused-Petitioner denied that he had received any notice u/s 13(2). In a situation, such as this, it was the bounden duty of the prosecution to prove that the accused-Petitioner had, indeed, received the notice/letter in terms of Section 13(2). Far from this, a close scrutiny of the evidence of P.W. 1 shows that he, nowhere, claims that the notice u/s 13(2) had been received by the accused-Petitioner.

There is, no doubt, as is contended on behalf of the prosecution, that a combined reading of Exts. 11 and 12 shows that since Ext. 11 is a notice u/s 13(2) and the same was sent by registered post with A/D, Ext. 12 being the postal receipt in respect thereof, the presumption under the law is that the notice, which is correctly addressed to the accused-Petitioner, was received by him. This presumption, which can be raised u/s 27(b) of the General Clauses Act, is, however, a rebuttable presumption. When the accused-Petitioner asserted, at the trial, that he had not received the notice u/s 13(2), this presumption was not available with the prosecution and it ought to have proved, in the light of the decision in Gauranga Sahu (supra), that the notice u/s 13(2), i.e. Ext. 11, had, in fact, been received by, or served upon, the accused-Petitioner. However, as there is not even an iota of evidence on record to show that the notice u/s 13(2) had actually been received by, or served upon, the accused-Petitioner, there can be no escape from the conclusion that the mandatory provisions of Section 13(2) had not been followed and the valuable right vested in the accused-Petitioner u/s 13(2) was denied to him. This non-compliance was per se fatal to the prosecution and the entire trial of the accused, therefore, stood vitiated.

Because of what have been pointed out above, I find that the conviction of the accused-Petitioner suffers from serious and incurable infirmity of law and cannot therefore, be sustained.

In the result and for the foregoing reasons, this revision succeeds. The conviction of the accused-Petitioner and the sentence passed against him is hereby set aside. The accused-Petitioner is held not guilty of the charge framed against him and he is acquitted of the same.

Bail bond of the accused-Petitioner is cancelled and his surety is discharged.

With the above observations and directions, this revision shall stand disposed of.

Let the L.C.Rs. be sent back forthwith.