Jai Parkash vs State of Haryana

V.S. Aggarwal, J. (Oral)

The Sub Divisional Judicial Magistrate, Panipat held the petitioner guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/. In default of payment of fine, the petitioner was directed to undergo further rigorous imprisonment for two months. The petitioner had preferred an appeal. The learned Additional Sessions Judge, Karnal on 9.7.1987 dismissed the appeal. Aggrieved by the above said judgments and the order of sentence, the present revision petition has been filed.

The relevant facts are that on 27.4.1982 Food Inspector Kali Ram was accompanied by J.S. Sohi, Deputy Chief Medical Officer Health, Karnal. They were present near Nawal Cinema, Panipat. The petitioner was intercepted. At that time he was carrying 18 kilograms of mixed milk for sale. The Food Inspector disclosed his identity and purchased 660 Mls. of milk. It was stirred. The sample so taken was divided into three parts, placed in three dry and clean bottles. Formaline was added in each bottle in the prescribed quantity. The bottles were sealed in accordance with law and procedure. The memos were prepared. One sealed bottle and a memo was sent to the Public Analyst. It was bearing the specimen of the seal used. The report of the Public Analyst was received. It was found that contents were 20% deficient in milk fats. On the receipt of the report, intimation envisaged under Section 13(2) of the Prevention of Food Adulteration Act was sent to the petitioner. No reply was received. This led to the filing of the complaint in Court.

The petitioner had been summoned and after the prosecution evidence was recorded, the statement of the petitioner followed in terms of Section 313 Cr.P.C. The petitioner controverted all the circumstances appearing against him. He denied that he was selling adulterated milk. After three defence witnesses were examined, the learned trial Court held that prosecution has successfully proved in terms that the milk being sold by the petitioner was adulterated. The contention of the petitioner that the same when tested was not the same and that no notice given contemplated under subsection (2) of Section 13 of the Prevention of Food Adulteration Act was negatived. The learned trial Court thereupon passed the impugned order of sentence after holding the petitioner guilty of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.

Aggrieved by the same, an appeal was filed in the Court of Sessions. The learned Additional Sessions Judge dismissed the appeal. Hence, the present revision petition.

Learned counsel for the petitioner at the outset urged that it has not been established that the sample tested was the same which was taken from the petitioner. Reference was made to Ex.PD where the sample number is mentioned as KRD244/82. The petitioner has examined the Public Analyst as DW3. His statement reveals that on that day eight samples bearing Nos. KLD233/82 to KLD240/82 had been received in one parcel while five other samples bearing Nos. KLD241/82 to 245/82 had been received in another parcel. It is obvious that there is a difference in the letters KRD which appears on Ex.PD and in the statement of the witness it appears as KLD. It is entirely for the prosecution to explain the said contradiction. No attempt seemingly had been made during the course of trial to explain the same. When the persecution failed to tally the two, the petitioner is right in urging that it is not shown that the sample seized infact was tested by the Public Analyst. A similar situation arose before a Division Bench of this Court in the case of State of Haryana v. Hari Singh, 1983(1) Prevention of Food Adulteration Cases 242. Identical was the dispute. The accused had been acquitted by the trial Court. The State had preferred an appeal against the acquittal. The said appeal was dismissed holding :

"The learned counsel for the respondent also, in all fairness, conceded that on the aforesaid grounds acquittal by the Magistrate was not justified but he pointed out that in the spot memo, Exhibit P.6 prepared by the Food Inspector, the sample purchased by the Food Inspector from the respondent was assigned the Serial No. VSL/78/6, where the report of the Public Analyst pertains to some other sample bearing Serial No. VSM/78/6 and thus the conviction cannot be recorded on the basis of different sample which does not relate to the sample prepared at the spot by the Food Inspector. Similar matter also came up in Criminal Appeal No. 163DBA of 1981 decided on 27th January, 1983 wherein it was held that even if the report submitted by the Public Analyst is to be read in evidence as relevant piece of evidence, it should be pleaded and in all respects the particulars given therein must indicate that the report relates to the sample in respect of which the prosecution has been launched. Since the same discrepancy occurs in this case also, we are of the view that the prosecution has not been able to bring home the guilt to the respondent Accordingly, no case is made out for interference in this appeal. Consequently, the appeal fails and is hereby dismissed."

The position in the present case is identical and, therefore, its is clearly not established that the sample was adulterated.

Another limb of the argument in this regard was that there has been total noncompliance of the provisions of Section 13(2) of the Prevention of Food Adulteration Act. The said provision reads as under :

"13(2). On receipt of the report of the 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 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 article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."

The reading of subsection (2) of Section 13 reveals that on receipt of the report of the Analyst, the Local Health Authority has to give a notice accompanied by copy of the report of the Analyst to the concerned person. In the present case it is urged that the said notice had not been addressed correctly to the petitioner. Petitioner is a resident of village Shimla Gujran, Tehsil Panipat. The postal receipt addressed shows that it was sent to Shimla. Shimla Gujran has not been mentioned therein. The Courts below took the view that since correct address is mentioned in the notice, the incorrect address on the postal receipt is of little consequence. However, what is forgotten is that the notice would be within the envelope and, therefore, correct address has to be mentioned on the envelope. Ordinarily, it would be the same as in the postal receipt.

Under Section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act, there would be a presumption that a correctly addressed letter was delivered to the addressee. This presumption would only arise if it is correctly addressed. When it is not correctly addressed, no such presumption can be raised. It is repeated by the denial of the petitioner that no such notice was received. When no notice at all is sent at the correct address, the petitioner in the facts of the present case can rightly claim that prejudice had been caused. Reference in this connection can be made to certain precedents from this Court. In the case of Janak Raj v. State of Punjab, 1983 Criminal Law Times 344 when this question was raised in paragraph 4 it was held :

"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 that 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."

Same view prevailed in the subsequent decision of this Court in the case of Gopi Ram v. State of Haryana, 1986(2) RCR 175. When a valuable right is lost to the petitioner, the counsel rightly urged that prejudice in the facts of the present case is caused. Therefore, the petitioner is entitled to an acquittal.

For these reasons, the revision petition is accepted. The judgment and the orders of sentence passed by the Court below are set aside. The petitioner is acquitted giving him the benefit of doubt.