Jiwna vs State of Haryana

B.S. Yadav. J.

The prosecution story in brief is that on 20th January, 1976 P.W. 1 Dr. Kulbhushan Kumar, Food Inspector, accompanied by P.W. 2 Dr. B.S. Nanda, intercepted Jiwna petitioner in front of primary Health Centre, Sadhaura. The petitioner was found carrying 22 Kg of cow milk. After observing necessary formalities, P.W. 1 Dr. Kulbhushan purchased 660 ml of milk from the accused. The formalities about dividing the sample into 3 parts and sealing and labeling them were complied with. Other formalities regarding sending one part of the sample to the Public Analyst as well as the impression of the seal used were also complied with. The Public Analyst vide his report Exhibit PD opined that the milk was adultered inasmuch as milk fat was 12.5 per cent and milk solid not fat 33 per cent deficient of the minimum prescribed standard. The report is dated 29th January, 1976. On receipt of the report the food Inspector filed complaint against the petitioner on 20th February, 1976.

P.W. 1 Dr. Kulbhushan Kumar, Food Inspector, and P.W. 2 Dr. B.S. Nanda supported the prosecution version already given above.

At the close of the prosecution evidence the accused was examined under section 313 of the Code of Criminal Procedure. he denied the prosecution allegations. According to him, no milk was purchased form him.

In his defence the accusedpetitioner examined D.W.1 Tara Singh who merely stated that the accused was a labourer and did not sell milk.

The learned Chief Magistrate, Ambala, who tried the case, believed the prosecution versions and convicted the accused under section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced him to undergo 6 months'' rigorous imprisonment and to pay a fine of Rs. 1000/. It was also ordered that in default of payment of fine the accused would further undergo rigorous imprisonment for 3 months. Feeling aggrieved the accused filed an appeal which was heard by learned AdditionalSessions Judge, Ambala. He did not find any merit in the appeal and dismissed the same. Still not satisfied, the accused has now come to this Court in revision.

The only argument advanced before me by the learned counsel for the petitioner was that the accused has been prejudiced on account of the noncompliance of rule 9(j) of the Prevention of Food Adulteration Rule, 1955 which has now been substituted by rule 9A.

To appreciate the above argument of the learned counsel for the petitioner it will be better to reproduce here rule 9(j) of the said Rules :

"9(j) to send by registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample confirms to the provisions of the Act or Rules made thereunder, then the persons may be informed of the same and report need not be sent."

The learned counsel for the respondent argued that though this Court in Full Bench Judgment reported as Kashimir Lal v. State of Haryana, I.L.R. 1981(2) Punjab and Haryana 513 has held that the said rule is directory in nature but the accused is still entitled to say that he has been prejudiced by the noncompliance of the said rule. His line of argument was that in the present case rule 9(j) was not complied with and the accused was never informed that the sample taken from him was adulterated. He further pointed out that though the complaint was filed on 20th February, 1976, and summons were ordered to be issued to the accused but there is no evidence on the file to show that he evaded service and that for the first time the accused came to know about the present prosecution when he was served for 22nd July, 1976 on which date he appeared in Court and copy of Public Analyst''s report was supplied to him but by that time one part of the sample, which was handed over to the accused, must have become unfit for analysis due to lapse of time and thus the accused has been prejudiced.

After considering the arguments of the learned counsel for the petitioner and going through the rules cited by him, I am of the opinion that in the present case there are sufficient grounds to hold that the accused has been prejudiced by the noncompliance of rule 9(j). As noticed earlier, the accused for the first time was served for 22nd July, 1976. There is no evidence on the file to show that the accused had evaded service of the notices issued by the Court. Thus by the time the accused was served more than 6 months had expired since the taking of the sample. Resham Singh v. The State of Punjab, 1972 PLR 802 related to a case where sample of milk was taken on 23rd May, 1967. The Public Analyst certified on 27th may, 1967 that the sample of milk was sub standard. The complaint was filed on Ist September, 1967. The learned trial Court convicted the accused. His appeal also failed. He came to this Court in revision. A.D. Koshal, J. (as his lordship then was) remarked :

"In so far as the process of decomposition is concerned, it would be safe to put milk and curd practically on the same footing so that if a sample of milk with the preservative added is allowed to remaining at room temperature it cannot be expected to remain fit for analysis after the lapse of a period of four months. In the present case a period of more than six months had elapsed between the securing of the sample and the first attempt to have the petitioner served with a summons. The petitioner was, therefore, deprived of the valuable right conferred on him by section 13(2) of the Act to have the sample given to him analysed by the Director. As observed by their Lordships of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram (supra);

"The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is to seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.''

These observations are fully attracted to the facts of the present case."

The revision petition was accepted as it was held that prejudice had been caused to the accused in consequence of the direct result of the conduct of the prosecution. The above observations clearly apply to the present case.

In the present case in both the Courts below it was contended on behalf of the accused that on account of the delay, he could not exercise his valuable right given to him under section 13(2) of the said Act and, therefore, he had been prejudiced. That argument was brushed aside on the ground that the accused had not exercised that right and, therefore, he could not plead that prejudice had been caused to him. After the expiry of 6 months the exercise of that right by the accused would have been an exercise in futility. In State of Haryana v. Jagtar Singh, 1979 PLR 553 it was held.

"The next question is that in case the copy of the report of the Public Analyst is not supplied or is not supplied within time as prescribed in section 13(2) or rule 9(j), what will be the effect ? Will the noncomplicance lead to ipso facto acquittal of the accused without going into the question whether the defence of the accused was prejudiced by such noncompliance or not ? Suppose copy of the report is not supplied to the accused within ten days of the receipt of the report of the Public Analyst by the Food Inspector, but the same is furnished on the eleventh or twelfth day, but the accused does not think it proper to avail of his right to approach the trial court to get the second sample sent to the Laboratory for analysis. In my considered opinion, as the intention of the law is clearly to safeguard the right of the accused to get the second sample analysed, so long this right it is not frustrated and the accused is in a position to avail of this right, it cannot be held that any prejudice will be caused to the accused by noncompliance of this provision of the rule though it may be quite minor and technical in nature. However, if he is supplied a copy of the report at such a stage when the second sample is likely to have become decomposed on account of time and the same will not be in a fit condition to be properly analysed by the Laboratory, or the copy of the report is not supplied to him at all, it has to be held that the defence of the accused was prejudiced. In such a case, it will be immaterial even if the accused did not make an application to the trial court for sending the second sample to be analysed as the same will be an exercise in futility."

The above observations support the contention of the accused that he had been prejudiced by the noncompliance of rule 9(j) of the said Rules. In the light of the above observations it will have to be held that in the present case the accused has been prejudiced on account of the noncompliance of rule 9(j) of the said Rules.

For the foregoing reasons I accept the present appeal and set aside the conviction and sentence of the accused and acquit him. Fine, if paid, be refunded to him.