Janak Raj vs The State of Punjab

S.S. Sodhi, J.—The matter that arises for consideration in this revision petition is whether there has been noncompliance with the provisions of section 13(2) of the Prevention of Food Adulteration Act, (sic) (hereinafter referred to as the Act) and, if so, what is the effect thereof.

The relevant facts are that on 13. 5 1977, the Food Inspector Dr. Shivji Ram Garg went to the shop of petitioner Janak Raj The petitioner was found in possession of two dozen bottles of sweet carbonated water for sale Nine such bottles were purchased as sample. On analysis, the Public Analyst found that the sample contained 350 percent of sucrose as against the minimum prescribed standard of 5 per cent. It was on the basis of this report that prosecution u/s 7 read with section 16 (1) (a) (i) of the Act was launched culminating in the conviction of the petitioner thereunder and the sentence passed against him being six months'' rigorous imprisonment and a fine of Rs. 1,000/-

Before proceeding further it would be relevant to note that section 13 of the Act as it originally stood was amended with effect from 1.4.1976 by Act 34 of 1976 For facility of reference, section 13.(2) as it stood before amendment and the provisions thereof after amendment are reproduced hereunder:

Section 13 (2) before 1976 amendment

Section 13 (2) vide amendment of 1916.

After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in sub Clause (i) or sub Clause (iii) of Clause (c) of Sub-section (I) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application, the Court shall first ascertain that to mark and seal or fastening as provided in Clause (b) of Sub-section (1) of section 11 are intact and may then dispatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.

On receipt of the report of the result of the analysis under Sub-section (I) 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 u/s 14 A, 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 Ford Laboratory

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 tasted 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 (Heath) Authority is a corresponding valuable right conferred upon the accused

The first point which arises in the instant case is whether a copy of the report of the public analyst was sent to the petitioner Janak Raj as required by section 13(2) of the Act.

The evidence on record shows that a registered letter containing a copy of the report of the public analyst and also informing him of his right to have the sample analysed from the Central Food Laboratory by making an application within ten days of the receipt of the letter was sent to the petitioner. It was, however, the contention of Shri H.S. Bhullar, learned counsel for the petitioner, that no value could be attached to such evidence as the latter sent to the petitioner was not correctly addressed nor is there any proof that it was, in fact, received by him. He adverted in this behalf to the postal receipt, Ex. PE, where the particulars of the petitioner recorded therein were only "Janak Raj, Muktsar." Further PW2 Amar Nath the Clerk of the department, who deposed to the despatch of the letter to the petitioner, did not in his evidence mention the address to which the letter addressed to the petitioner was sent. He, however, proved Ex. PD, a copy of the forwarding letter sent to the petitioner. It is pertinent to note that on this letter, the address of the petitioner recorded was "Thandi Road, Muktsar." Admittedly, there is no such road at Muktsar It may be mentioned here that the address of the petitioner as noted at the time of the taking of the sample from him was "Thandewale Road, Muktsar "

Shri V.P. Prashar, learned Assistant Advocate General, on the other hand, sought to press in aid the presumption u/s 114 of the Evidence Act that the registered letter sent to the petitioner Janak Raj was duly received by him. In this behalf he also sought to lay great stress upon the fact that this letter was never received back by the department from the Postal Authorities implying thereby that if the letter bad been wrongly addressed or if for some other reason it had not been received by the petitioner, in the normal course the letter would have been delivered back to the sender and, therefore, in the instant case this was another pointer to the letter having been received by the petitioner and thereby the provisions of section 13(2) of the Act stood complied with. There is however, no warrant for holding that if a registered letter is not received back by the sender it must be presumed that it was received by the addressee.

It is well settled that to raise a presumption of due delivery of a letter to the addressee it must be shown that the latter was properly addressed. An authority for this proposition is Sitaram Ramavtar Vs. Lohiya Murlidhar Meghraj, , where it was observed:--

A letter which is not properly addressed may or may not reach but presumption cannot be raised with respect to letters which are not properly addressed that they must have reached the place of destination.

There is, thus, no escape from the conclusion that the requirements of section 13(2) of the Act regarding the tending of a copy of the report of the public analyst to the petitioner have not been complied with in this case.

The question next arises as to the effect of the non compliance of the provisions of section 13(2) of the Act. It was the contention of Shri H.S. Bhullar, counsel for the petitioner, that according to the scheme and object of the provisions of the Act, the requirements of section 13(2) of the Act were clearly mandatory and noncompliance therewith, thus, vitiated the conviction of the petitioner in the present case. He sought in this behalf to rely upon P.K. Moorthy Vs. Food Inspector, Kumbakonam Municipality, where it was held by a Division Bench of the Madras High Court that the provisions of sections 11 and 13(2) of the Act were mandatory and non-compliance with the provisions of these sections vitiated the entire proceedings.

Counsel for the petitioner also adverted to a recent authority of our own High Court Amar Chand v. The State (1981) 63 P.L.R. 216: (1981) 8 Cr.L.T. 57 where it was observed that the object of amending section 13(2) appeared to be not only to give the person from whom the sample is taken a copy of the report of the public analyst but also to draw his attention to his right to have the sample analysed by the Central Food Laboratory by making an application to the Court within a fixed period of tine. A valuable right has, thus, been conferred upon the accused of receiving such a notice from the local health authority and also of being informed that if he so desired he could have the sample analysed by the Central Food Laboratory. The scheme and object of the provisions of the Act thus, clearly supported the view that the provisions of section 13(2) of the Act were mandatory and non-compliance therewith would vitiate the entire proceedings.

Shri V.P. Prashar, on the other hand, sought to canvass the point that mere non-compliance with the provisions of section 13(2) of the Act would not vitiate the proceedings against an accused unless be could show that he had been prejudiced thereby and in a case like the present where no request was at any stage made by the petitioner to have his sample analysed by the Central Food Laboratory, no question of such prejudice arose. He sought to refer in this behalf to Division Bench judgment of this Court in State of Haryana v. Jagtar Singh (1979) 81 P.L.R. 553 and a Full Bench judgment in Kashmiri Lal Vs. State of Haryana, Neither of there judgments is, however, applicable to the facts of the present case. In both these cases the question before the court was with regard to the provisions of rule 9(j) of the Prevention of Food Adulteration Rules 1955 and not section 13(2) of the Act

In Kashmiri Lal''s case (supra) while dealing with the provisions of section 13 of the Act, it was observed that the core of the matter was the conferring of a valuable safeguard on the accused persons to have one of the sample analysed afresh by the Central Food Laboratory The report of the Director in this context has been made conclusive and supercedes the other reports. The essence of these provisions, therefore, is the grant of this right Some of the remaining provisions of section 13 and of the Act and the rules framed thereunder are in essence procedural to protect and safeguard this privilege. So long as the same is not infringed or violated, a marginal variation of the procedural provisions cannot necessarily be called fatal. It was held in this case, therefore, that the provisions of rule 9(j) were merely directory and not mandatory.

The two authorities referred to above cannot, thus, be read to overrule or detract from the correctness of the law as enunciated with regard to the provisions of section 13(2) of the Act in P.K. Moorthy''s and Amar Chand''s cases (supra)

The contention of the learned State counsel that the noncompliance with the provisions of sec 13(2) of the Act cannot ipso facto be treated as fatal to the prosecution unless prejudice has been shown to have been caused thereby to the accused stands answered by the following observations in Kashimri Lal''s case (supra):--

In legal terminology, it is broadly well settled that the infraction of a mandatory provision necessarily raises an inference of prejudice Violation of a mandatory rule inevitably brings in its wake the stigma of vitiation.

There is, thus, no escape from the conclusion that the provisions of section 13(2) of the Act are mandatory in character and noncompliance there with must render the conviction of the petitioner unsustainable. The conviction and sentence of the petitioner are accordingly hereby set aside. The fine if paid is ordered to be refunded and the bail bonds of the petitioner who is on bail, are hereby discharged. This revision petition is, thus, accepted accordingly.