Jessa Ram vs State of Haryana

Dr. Sarojnei Saksena, J.

In this revision the accused/petitioner has challenged his conviction under Section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Act).

Adumbrated facts of the case are that Food Inspector C.L. Sikri along with Dr. K.R. Rathee inspected the premises of Jessa Ram, Dayal Chowk, Sonepat. Accused was found possessing 30 polythene packet of `mithi goli'' weighing 41/2 kg. kept in a shop, for public sale. Food Inspector served notice Ex. PA on the accused and purchased 900 Grams (6 pkts. containing 150 Grams each) of Mithi goli for sample after paying Rs. 12/ as its price vide receipt Ex. PB. The sample was divided into three equal parts and were put in three empty, clean and dry bottles. Formalin were added therein. Bottles were duly sealed. A sample along with copy of memorandum was sent to Public Analyst by registered post. Remaining two samples with the copies of the memorandum were deposited with the Local Health Authority, Sonepat. A copy of memorandum along with specimen of the seal used on the sample was also sent separately to the Public Analyst by registered post. Public Analyst report Ex. PD was received wherein he opined that sample gives Ash insoluble in dilute HCl 0.58% against the maximum prescribed standard of 0.2%, Soap Stone, and Grit 0.5%. Its taste was reported as Gritty. Accordingly complaint Ex. PE was filed against the petitioner/accused. Copy of Public Analyst report was sent to the accused/petitioner by Local Health Authority along with notice. Office copy of that notice is at Ex. PF. This notice was sent by registered post. Its postal receipt is Ex. PG.

In pursuance of this notice accused appeared in the court. Notice of accusation was given to the accused/petitioner to which he pleaded not guilty. Later on warrant trial procedure was adopted. Charge was framed. Again accused pleaded not guilty. After charge, C.L. Sikri was examined as PW1 and as the accused did not raise any objection, statement of Dr. K.R. Rathee, PW2, which was recorded earlier, was also read in evidence. In his statement under Section 313 Cr.P.C. accused denied all the allegations made against him.

After hearing the defence counsel as well as complainant, learned Additional Chief Judicial Magistrate, Sonepat vide his order dated 16.9.1996 found accused guilty of the said offence and sentenced him to RI for one year with a fine of Rs. 1000/ and in default to undergo further RI for three months.

Petitioner/accused challenged his conviction and sentence by filing appeal which was also dismissed by Addl. Sessions Judge, Sonepat vide his judgment dated 10.2.1988.

The only argument advanced in this revision is that mandatory provisions of section 13(2) of the Act were not complied with. Copy of the Public Analyst''s report was not sent to the petitioner; thereby he was deprived of the opportunity to exercise his right under Section 15(2) of the Act of sending second sample for obtaining second opinion. Learned counsel for the petitioner relying on State of Punjab v. Bibu, 1989(1) PLR 105, argued with all vehemence at his command that in view of this Full Bench decision sending of copy of report of the Public Analyst to the accused under section 13(2) is mandatory provision. He also submitted that as this provision was not complied with, without proving that any prejudice was caused to the accused petitioner, he is entitled to be acquitted of the said charge.

During arguments learned counsel for the respondent submitted that copy of the Public Analyst''s report Ex. PD was sent to the accused by registered post by Local Health Authority. Office copy of the said letter/notice is produced at Ex. PF, its postal receipt is at Ex. P/G. During trial Local Health Authority Dr. R.K. Rathee PW2 was examined. He has proved that this notice Ex. PF along with copy of report of Public Analyst was sent to the accused by registered post though acknowledgement due receipt is not produced on record. Learned counsel also argued that even when the accused appeared before the learned trial Magistrate he never made a request that second sample be sent to the Central Food Laboratory for obtaining second opinion. Thus it cannot be said that any prejudice is caused to the accused/petitioner as he himself failed to avail the right guaranteed to him under section 13(2) of the Act.

After hearing rival contentions, in my considered view the revision is liable to be dismissed. With the help of both the counsel I have looked into the trial court''s record. Dr. R.K. Rathee PW2 (Local Health Authority, Sonepat) has stated on oath that on 12.7.1988 he has sent copy of Public Analyst report along with a notice to the accused by registered post at the address given in form VI Ex. PA. The office copy of the said notice is produced at Ex. PF. Its postal receipt is Ex. PG. He has also stated that registered letter sent to the accused was not received back in the office of Local Health Authority. During crossexamination he has admitted that when he sent notice (Copy Ex. PF) to the accused by registered post it was not sent with acknowledgement due. He has denied the suggestion that he has not sent any such notice to the accused. He has also denied the suggestion that seal affixed on Ex. PG bears the date 11.7.1988.

While petitioner was examined under Section 313 Cr.P.C. these facts were put to him, he has simply said that they are wrong. He does not say specifically that no such notice along with Public Analyst''s Report was received by him. There was no suggestion that it was not sent at his correct address. In the postal receipt it is not necessary to mention the full address of the addressee. Thus from the evidence adduced by the complainant it is proved beyond doubt that notice under Section 13(2) along with copy of Public Analyst Report was sent to the accused on 12.7.1988 by registered post vide postal receipt Ex. PF. It is proved that this letter was not received back in the office of Local Health Authority; therefore, it will be presumed that this letter must have been delivered to the accused. Even accused has not controverted these allegations and has not said in his statement under section 313 Cr.P.C. that he has not received this notice along with Public Analyst''s Report. There was no reason for the Local Health Authority to make a false statement against the petitioner. Accordingly, I find that notice (Copy Ex. PF) along with copy of Public Analyst''s Report was sent to the petitioner/accused on 12.7.1988 by registered post which was duly received by him.

It is also apparent from the trial court''s record that accused appeared in the court on 24.8.1988 but thereafter he never made any prayer before the lower court that second sample be sent to the Central Food Laboratory for obtaining second opinion.

On the basis of all the above facts, it cannot be said that mandatory provisions of section 13(2) of the Act were violated by the respondent. Thus finding no merit in the revision, it is dismissed.

Revision dismissed.