Panna Lal vs State U.P. and Others

N.N. Sharma, J.—This revision is directed against the order dated 21-1-81 by Sri V.P. Mathur, Sessions Judge Fatehpur in Criminal Appeal No. 199/80 by which the appeal of the revisionist was dismissed and order of conviction and sentence as recorded by the learned Judicial Magistrate, Fatehpur on 1-12-80 u/s 7/16 of Prevention of Food Adulteration Act and sentence of 6 months RI and a fine of Rs. 1000/- and in default, three months RI were maintained.

Prosecution story briefly stated is that revisionist is a grocer having his shop at G.T. Road in village Tharion, district Fatehpur. On 26-3-79 at about 11.30 A.M. Sri R.P. Gupta (PW 1), the then Food Inspector Fatehpur inspected the shop of the revisionists and found him exhibiting for sale mustard (Lahi) oil. After disclosing his identity the Food Inspector purchased 7.50 gram of oil on payment of price vide receipt Ext. Ka-1 duly executed by revisionists which is signed by him and is attested by witness Satya Narain (PW 2). Notice form No. 6 (Ext. Ka-2) was served on the revisionists earlier. After compliance of necessary formalities sample phial was sent to Public Analyst, Lucknow who submitted his report dated 25-4-1979 (Ext. Ka-4) by which he found admixture of linseed oil to the extent of about 8%. On receipt of this report necessary sanction for prosecution from Chief Medical Officer Sri P.L. Rathi (Ext. Ka-6), as proved by PW-3, was procured and the revisionist was informed through registered post to avail his right u/s 13(2) of Prevention of Food Adulteration Act about comparision of the sample by Director, Central Food Laboratory, if he so desired.

The revisionist was sent up to stand his trial; prosecution examined Sri R.B. Gupta, Food Inspector to support the prosecution version as PW-1 and Sri Satya Narain as PW-2 and formal witness Ram Kishan PW-3 to prove the signatures of Chief Medical Officer and produced the register showing despatch of the letter to the revisionist through registered post to satisfy the requirements of Section 13(2) aforesaid.

In his statement revisionist alleged that he had been involved falsely on account of ill-will. Oil was of Satay Narain who was keeping it at his shop and during his absence the Food Inspector forcibly seized the sample. His signatures were fraudulently procured. In defence one Chedi Lal (DW-1) was examined to support the defence.

The learned trial Magistrate recorded conviction and sentence aforesaid giving rise to appeal No. 199/80 which failed.

I have heard learned Counsel for the parties and perused the record.

The simple point pressed before me in this revision was about the non-complaince of Section 13(2) of Prevention of Food Adulteration Act, which reads as below:

On receipt of the report of the result of the analysis under Sub-section (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 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 Food Laboratory.

So, the contention was that this provision is per-emptory and its non compliance was fatal to the case.

On behalf of State it was pointed out that there was opinion of learned appellate court u/s 73 of Indian Evidence Act that the writing on acknowledgement receipt paper No. 13A/1 (Ext. Ka-9) was in the hand of the revisionist. This writing is as below:

Panna Lal Vaste Ram Raj

Thus, the question is about the authenticity of this writing. If this writing is not of revisionist, then his contention that he did not receive any letter informing him about the right to be availed u/s 13(2) of the aforesaid Act has been denied to him. In this connection I may refer to the statement of the revisionist himself as recorded on 26-1-80. In reply to question No. 6, he denied to have received any letter alongwith the report of Public Analyst showing the sample adulterated. Sri R.B. Gupta, Food Inspector (PW-1) who is the main witness relied upon by the prosecution and who had absolutely no occasion to espouse the cause of revisionist and damage the prosecution story irretrievably, stated in cross-examination that the report of public analyst was not sent to the revisionist in his presence ; when he was shown acknowledgement due Ext. Ka-9, he made a categorical statement that it did not bear the signatures of revisionist Panna Lal. There is absolutely no other evidence on record to show that Ext. Ka-9 bears signatures of Panna Lal. Under these circumstances, the question arises whether in the teeth of denial by revisionist and Food Inspector, it was open to the learned Appellate Judge to treat Ext. Ka-9 as evidence to hold that revisionist was supplied the copy of the report of Public Analyst vide Ext. Ka-9 ?

On behalf of revisionist reliance was placed upon Nagappa v. Nani Bul AIR 1960 Mys 221 paras 5 and 6 in which it was observed that the court, although empowered to compare the disputed signatures with admittedly genuine signatures u/s 73 of Indian Evidence Act, the rule of prudence requires that comparison of signatures by courts as a mode of ascertaining truth should be used with great care and caution. In Har Deo Mal v. State AIR 1969 All. 431 in para 31 it was pointed out that it was not open to exercise power of comparison u/s 73 of Indian Evidence Act the court at revisional stage. There was no question of bringing any additional material by way of evidence at The stage of revision.

On behalf of State reliance was placed upon Smt. Sundari Devi and Others Vs. Ganga Ram and Others, where it was pointed out that the court cannot blindly accept a report of the expert u/s 45 of the Indian Evidence Act. It is the duty of an expert to furnish the judge necessary criteria for testing the accuracy of his conclusion so as to enable the Judge to form his independent judgment by application of criteria to the facts proved in evidence. It does not provide that the Judge at the revisional stage or appellate stage can base himself on such opinion without any evidence on record.

A mere look at the scheme of Indian Evidence Act shall go to disclose that opinions are relevant under Sections 45 - 51 of Indian Evidence Act ; Section 73 which occurs under the Chapter ''Admissibility'' details about the mode of proof and not about relevancy. Cases are to be decided on evidence. Evidence may be oral or documentary. It has been shown above that there is absolutely no evidence on record to prove Ext. Ka-9 to have been signed by the revisionist. The revisionist did not admit the same. It is correct that Section 73 deals with mode of proof of documents. Those modes are well recognised. In the first place, this can be done by getting an admission from the opposite-party. u/s 58, facts admitted need not be proved. Secondly, the person who himself wrote the document can be called as a witness and he can give direct evidence u/s 60. Thirdly, the person who was present when the document was written or signed can depose u/s 60 as to the identity of the signature or the hand-writing. Fourthly, an expert can be examined to establish the identity of the hand-writing or signature by comparison of the disputed document with an undisputed or a sample document (Section 45). In the fifth place, the signature or hand-writing can also be proved by the evidence of person acquainted with the hand-writing u/s 47 or it can be proved u/s 67. Lastly, the court itself can compare the hand-writing in the disputed and undisputed documents and satisfy itself as to the identity (Section 73), but such opinion of the court cannot be a substitute for the evidence as the court shall not enter the witness-box to testify about the accuracy of his opinion which may be subjected to cross-examination. The Courts do not ordinarily base their decision even on an expert evidence only unless it is supported by other evidence, external and internal.

It was observed by S.A. de Smith in his Judicial Review of Administrative Action at page 113 "Tribunals may use their technical and local knowledge and accumulated expertise to draw inferences from evidence. A tribunal that is required to act on evidence cannot use its own expert opinion as a substitute for evidence --Moxon v. Minister of Pensions, (1945) KB 490 ; but it is generally entitled to use its expertise and knowledge of local conditions to supplement evidence (R.V. Howard (1902) 2 KB 363.

If it is possible to state any general proposition, it is that the courts will more readily require disclosure of evidence obtained from independent sources than from the knowledge of members of the tribunal R. v. Westminister (City of) Assessment Committee (1941) 1 KB 53 : (1902) 2 KB 363

Thus, it is a case of total absence of evidence about authenticity of signatures on Ext. Ka-9, being in the hand of revisionist. So the aforesaid finding by the learned appellate court is unsustainable and the revision is to be allowed for the simple reason that Section 13(2) of Prevention of Food Adulteration Act, which is mandatory, has not been complied within this case.

No other point was argued before me.

The revision is allowed. The impugned order is set aside ; revisionist is acquitted of the charge u/s 7/16 of Prevention of Food Adulteration Act. The revisionist is on bail; he need not surrender to his bail bonds, which are discharged. Fine, if deposited by the revisionist shall be refunded to him.