Harpal S/o Udey Singh vs State of Haryana

B.S. Yadav, J.

The brief facts leading to the present petition are that on 7th October, 1976 at about 6 p.m., the present petitioner Harpal was found in the possession of 6 Kgs. of unindicated milk for sale. PW1 Shri S.K. Sharma Government Food Inspector disclose his identity to him and purchased 660 mls. of milk from him after observing due formalities. The sample was divided into three parts. Each part was put in a clean and dry bottle. 18 drops of formalise were added to each bottle. The sample bottles were properly stopped, labelled, wrapped and sealed in accordance with the relevant provisions. These proceedings were conducted by the Government Food Inspector in the presence of PW2 Dr. D.K. Saxena and one Jagdish Sarpanch. One part of the sample was sent to the Public Analyst was found the same to be adulterated; inasmuch as milk fat was 38% deficient and milk solids not fat 12% deficient of the minimum prescribed standards. After the report of the Public Analyst, prosecution was launched against the petitioner. At the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure. He denied the prosecution allegations and pleaded that he did not sell milk and the Government Food Inspector had obtained his signatures on blank printed papers.

The learned Chief Judicial Magistrate believed the prosecution evidence and convicted the petitioner under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/. It was also ordered that in default to payment of fine, the petitioner would further undergo rigorous imprisonment for six months.

Feeling aggrieved against his conviction and sentence, the petitioner filed an appeal which was heard by the learned Sessions Judge, Bhiwani, who maintained the conviction of the petitioner, but reduced the sentence of rigorous imprisonment to one year and fine to Rs. 1,000/. The petitioner has now come to this Court in revision.

The learned counsel for the petitioner argued that in the present case, there has been total violation of section 13(2) of the Act. The said provision reads as follows :

"13(2). On receipt of the report of the sample result of the analysis under subsection (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall after the institution of prosecution against the person 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 under Section 14, A, forward in such manner as may prescribed, a copy 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 article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."

The learned counsel brought to my notice that the report of the Public Analyst Ex. PD is dated 18th day of October, 1976 and after the receipt of that report, its copy was sent by the Government Food Inspector himself to the petitioner on 28th October, 1976 under covering memo Ex. PE but by that memo the petitioner was not informed that criminal proceedings had been launched against him and that he could exercise his right of sending the other part of the sample to the Director, Central Food Laboratory, Madhuban. According to him, the petitioner could not have been so informed about the launching of the criminal proceedings, because the complaint was filed in Court on 30th October, 1976. He, therefore, argued that as there has been noncompliance of section 13(2) of the Act, the conviction of the petitioner cannot be sustained.

In support of his contention, he was cited Balkar Singh v. The State of Punjab, 1982(2) C.L.R. 692, where in it was remarked :

"In the present case there has been total noncompliance or rather total violation of the provisions of subsection (2) of Section 13 in that (1) that the copy of the report of the Public Analyst was sent to the accused by the Food Inspector and not by the Local (Health) Authority (ii) that even the said copy of the report was sent by the Food Inspector not after the launching of the prosecution as expressly required by this provision but before the complaint was filed and the prosecution launched, and (iii) that along with report copy of the memo envisaged by subsection (2) of Section 13 was not sent as the Food Inspector in his testimony has merely stated that he has sent the copy of the report to the Analyst and did not further say that he had sent a memo also informing the accused of his right in terms of subsection (2) of Section 13.

The matter is not res integra and therefore, does not require to be dealt with on first principles, for this Court in Amar Chand v. State, 1981(1) FAC 230 : 1980 CLR (Pb. & Har.) 256), a Division Bench of Madras High Court in Kundasami v. Food Inspector, Athoor, 1982(1) FAC 322 and a single Bench of Kerala High Court in V.J. Paul and another v. Ibrahim and others, 1982 FAJ 91, have already held that compliance with the provisions of subsection (2) of Section 13 is necessary and in the noncompliance therewith prejudice to the accused is inherent. With respect I entirely concur with the view taken in the aforesaid decisions.

In a case where the report is sent before the prosecution is launched the accused would not know as to which is the Court where he is to make the application within the period envisaged by subsection (2) of Section 13."

The learned counsel for the petitioner has also cited Janak Raj v. The State of Punjab, 1983 PLR 520, wherein it was remarked :

"It will be seen that a qualitative change was introduced in the provisions of section 13(2) of the Act by the amendment made therein in 1976. No doubt, section 13(2) as it stood before its amendment conferred a valuable right upon an accused to get the sample tested from the Central Food Laboratory but it was, in terms, merely an enabling provision. Now, however, a positive duty has been cast upon the Local Food authority to send a copy of the report of the public analyst to the accused and also to inform him and if he desires, he may have the sample analysed by the Central Food Laboratory by making an application to the Court in this behalf within ten days of the receipt of the copy of the report. What, is thus, the duty here of the Local (Health), Authority is a corresponding valuable right conferred upon the accused."

"It may be mentioned here that in view of the Division Bench decisions of this Court in Criminal Appeal No. 395 (DBA) of 1981, State of Haryana v. Amar Nath decided on the 3rd February, 1983 and Criminal Appeal No. 585 DBA of 1982, State of Punjab v. Balwant Singh, decided on the 7th March, 1983 wherein it was held that though section 13(2) is couched in mandatory terms, it is to be taken as directory in nature and the accused is not entitled to acquittal merely on the showing that there has been infraction of this provision and that he has further to show that he has been prejudiced on account of the violation of the said provision. The above decision in Balkar Singhs and Janak Raj''s case (supra) to the extent that noncompliance of section 13(2) automatically entitles the accused to acquittal cannot be followed.

However, in the present case, prejudice to the petitioner is writ large. As noticed earlier, the petitioner was not informed either by the Government Food Inspector or by the Local (Health) Authority that the prosecution had been launched against him and if so, in which Court. Therefore, the petitioner remained in dark about the criminal proceedings and could not apply to the Court concerned for having the other part of the sample analysed by the Director, Central Food Laboratory. This right conferred by the Act on a person, from whom sample has been taken, to have the sample analysed by the Director, Central Food Laboratory is a valuable right, because the report of the Director supersedes that of the Public Analyst. It is not in dispute that the sample of the food article like milk, curd etc. is likely to deteriorate in its chemical composition if kept at room temperature after about four months. In the present case, the criminal proceedings were launched against the petitioner on 30th October, 1976. His presence could not be secured in Court till 18th December, 1979. Therefore, by the time the petitioner appeared in Court, the two parts of the sample kept with the local (Health) Authority, must have become decomposed and unfit for analysis. The petitioner could not be expected to exercise his right under section 13(2) of the Act after such a long time, because that right had become illusory.

For the foregoing reasons, it is held that in the present case the noncompliance of section 13(2) of the Act has caused prejudice to the petitioner and therefore, his conviction cannot be maintained. Accordingly, I accept the present appeal and set aside his conviction and sentence. Fine, if paid, be refunded to him.