Kalwa vs State of U.P.

P.N. Bakshi, J.—The applicant has been convicted u/s 7/16 of the Prevention of Food Adulteration Act and" sentenced to 6 months'' RI, and a fine of Rs, 1000/-. His conviction and sentence have been maintained in appeal by the Sessions. Judge, Bijnor. Hence this revision.

I have heard learned Counsel for the applicant and have also perused the imugued orders, I have carefully seru-tinized the record of the case. Very briefly stated the prosection story is that the road Inspector purchased a sample of buffalo milk from the aodfeed applicant on 31 October, 1977. at 9:30 A.M. in Chhota Bazar Seohara. The applicant was ''then carrying 12 Kg buffalo milk in a Can on his Cycle. The sample was taken in - accordance with the procedure by law after payment of its price. One of the sample phails was sent for analysis to the public Analyst, whose report disclosed that it was deficient in non-fatty solids by 17 per cent, judged from the standard of buffalo milk. After obtaining lanetion, the applicant has been prosecuted and convicted as above.

Learned Counsel for the applicant- has argued that the copy of the report of the Public Analyst accompani ed by an intimation, as envisaged u/s 13(2) of the P.F. Act was not received by the applicant and therefore, he has been seriously: prejudiced inasmuch as he could.not get the.sample re-analysed by the Director Central Food Laboratory u/s 13(2) of the said Act. I have perused the statement of RamAdhar PW 2who was a clerk in the office of the Chief Medical Officer. He has deposed that a copy of the report of the Public Analyst No. 31434 dated 14th December, 77 along with a letter dated. 13-2-78 was teat by registered post to the accused applicant Kalwa, From the scrutiny of his statement.it is clear that the applicant was speaking after consulting the register showing the despatch of letter from the office of the CMO. In cross examination, the witness has also reiterated that he has personally sent this letter by registered post. Counsel for the applicant has submitted that the mere sending of a letter by registered post does not absolve the prosecution of its further duty of proving that the latter including the report of the Public Analyst was race . by him. In this connection it would be pertinent to refer to Section 13(2) of the P.F. Act which requires that after the institution of the prosecution, a copy of-the report of the Public anlasyt along with an intimation shall be forwarded to the accused in such manner as may be prescribed.

Rule 9A framed under the Act is to the following effect:

Local (Health) Authority shall imediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under Sub-rule (3) of Rule 7, by registered post or by hand as may be appropriate, to the person from whom the sample of the article was takes by tie Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars has been diaciosed u/s 14A of the Act:

Provided that where the sample con ferms "to:the provisions of the Act or the rules made there under and no prose cution is intended under Sub-section (2) or no action is intended under Sub-section (2E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom name, address and other particulars have been disclosed u/s 14A of the Act, within 10 days from the receipt of the report from the Public Analyst.

Reading Section 13(2) and Rule 9A of the Act, together the inference seems to be inevitable that the duty which has been cast upon the local authority is to forward a copy of the report of the result of analysis along with an intimation, by registered post or by hand to the persons, from whom the sample has been taken. A letter, sent under registered post is presumed to have been received by the addressee. It is true that this presumption is not irrebuttable but so far as the prosecution Is concerned, the burden cast upon it under law would be deemed to have discharged as soon as the report and the intimation are tent under registered cover. In the instant case, it appears that an Acknowledgment Due Form also accompanied the registered letter sent to the accused, but the A. D. form has not been received ba:k. This is admitted by the clerk of the office of the Chief Medical Officer. The applicant''s counsel has argued that, because possible to come to this conclusion, There was nothing to prevent the legis'' lature from incorporating in the rules, a further condition that the registered letter should be sent accompanied by an A. D. Form. This clearly indicates that the burden cast upon the prosecution would be discharged as soon us s letter under registered post is forwarded to the accused, of course correctly addressed containing the report: and intimation. If the accused wishes to challenge this fact, it is open to him to lead evidence in rebuttal. It has not been done in the instant case,.. His mere statement u/s 313 Code of Criminal Procedure is in my opinion not sufficient to disbelieve the actual sending of the report and the intimation from the office of the C.M.O., as required u/s 13(2) of the P.F. Act. In the instant case, there is sufficient evidence on the record to come to the conclusion that the report and intimation were in fact, forwarded to the accused-applicant and it must, in the ordinary course, Save been received by him. To repeat again, in the absence of any evidence to the contrary such an inference is not only justified on facts but also in law.

The next point argued by the applicant''s counsel is that milk which was taken by the accused was. to be consumed by his ailing son who was under the treatment of Dr. Gautam Bahadur, I have perused the statement of the Doctor, He has nowhere stated that he directed the accused to bring milk diluted with water so as to make it consumable by the patient, As a matter of fact, the applicant was carrying a can containing 12 Kg, of milk. Surely this quantity could not be meant for consumption of an ailing son in hospital. For this reason it is sot possible to accept the defence theory set up by the accused.

So far as the sentence is concerned the minimum prescribed by law has been awarded to the applicant. It is not possible to reduce the sentence any further. For the reasons given above, this revision application is hereby dismissed. The applicant is on bail. He shall be taken into custody forthwith. to serve out the unexpired portion of the sentence of imprisonment. The interim order, passed by this Court on 10th January 1980 is herely vacated.