State of Punjab vs Babu Ram

Harmohinder Kaur Sandhu, J.

On 15101981 Dr. S.S. Bhinder, a Food Inspector, inspected the shop of Babu Ram at Dhariwal along with some other doctors and found Babu Ram in possession of 10 kilograms of cow''s milk which was meant for sale. After serving notice on Babu Ram respondent the Food Inspector purchased 660 mililitres of cow''s milk by making payment vide receipt Ex. PG. The milk so purchased was divided into three equal parts and was put into three dry and clean bottles. The bottles were seated as per rules after 18 drops of formalin were added in each bottle as preservative. One sealed bottle was sent to the Public Analyst while the other two bottles were deposited with the Local Health Authority. The Public Analyst reported that the sample was deficient in milk fat by 50 per cent and in milk solids not fat by 19 per cent of the minimum prescribed standard. Prosecution was, thus, launched against the respondent in the Court of Chief Judicial Magistrate, Gurdaspur and a copy of the report of the Public Analyst was sent to the respondent.

The respondent was tried for an offence under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. He pleaded not guilty and claimed trial. When examined to explain the allegations appearing against him he contended that the case against him was false.

After going through the record and hearing the learned counsel for the parties the learned trial Court found that in the instant case provisions of Section 13(2) of the Prevention of Food Adulteration Act, which were mandatory, had not been complied with, which vitiated the proceedings. The respondent was, therefore, acquitted of the charge vide judgment dated 26111982. This judgment of the learned Chief Judicial Magistrate, Gurdaspur has been assailed by the State of Punjab by way of this appeal.

The solitary question to be decided in this appeal is whether there was due compliance of the provisions of Section 3(2) of the Act. Learned counsel for the appellant contended that the respondent was informed well in time that prosecution had been lodged, in the Court of Judicial Magistrate, although name of the Court was not mentioned. No prejudice was caused to the respondent because only Chief Judicial Magistrate at Gurdaspur had the powers to bear cases under the Prevention of Food Adulteration Act pertaining to SubDivision Gurdaspur. The respondent did not show that any prejudice had been caused to him by not mentioning the name of the Court. Reliance was placed by the learned counsel on the case of Milswami reported as 1981 Criminal Law Journal N.O.C. 10 (Madras). It was held in this case :

"Section 13(2) of the Prevention of Food Adulteration Act is mandatory and noncompliance with it would undoubtedly vitiate the trial but this section does not require that the notice should specify the Court in which the complaint had been laid. Failure to mention in the notice, therefore, the Court in which the complaint had been laid down did not vitiate the trail.

"In this authority the detailed facts of the case have not been given and it is not made out whether the place where the complaint was filed had one Court or more than one. If the place where the complaint was lodged had only one Court then name of the Court need not be mentiorted in the notice to be served on the accused. There is no denial of the fact that the provisions of Section 13(2) are mandatory and noncompliance of the same caused prejudice to the respondent in his defence. Section 13(2) of the Prevention of Food Adulteration Act requires that on receipt of the report of the Public Analyst that the article of food is adulterated the local authority shall after the institution of the proceedings against the person from whom the sample of article of food was taken forward a copy of the report of the Public Analyst to such person informing him that if it is so desired he may make an application to the Court within a period of 10 days from the date of receipt of the copy of the report to get the sample of article of food kept by the Local Health Authority analysed by the Central Food Laboratory. By this section a valuable right is conferred on the accused to get the sample examined by the Central Food Laboratory within 10 days from the date when he is apprised of the prosecution which has been launched against him. As the provision is mandatory it is to be strictly complied with in all its particulars. In the case of Brij Behari Lal v. The State, 1981 All India Prevention of Food Adulteration Journal 149 the report of the analyst was despatched on 951978 while the complaint was instituted on 1051978 and the accused was not apprised of the name of the Court in which the prosecution was being launched and as such he could not approach the Court within the prescribed period of 10 days to send the sample for analysis to the Central Food Laboratory. It was observed :

"Noncompliance of the mandatory provision goes to the very root of the prosecution case and, therefore, the conviction of the appellant could not sustain."

In the instant case report of the Public Analyst was sent with Memo Ex. PA in which it was not mentioned that the complaint had been filed in the Court of Chief Judicial Magistrate, Gurdaspur but only this fact was mentioned that a complaint had been filed in the Court of Judicial Magistrate. The learned trial Court observed that there were four Courts of Judicial Magistrates at Gurdaspur and it was not easy for the respondent to find out as to in which Court the complaint was actually filed. The respondent is an illiterate person and he was not supposed to know that at Gurdaspur only Chief Judicial Magistrate had been vested with powers to hear cases under the provisions of Food Adulteration Act. In the absence of name of the Court the respondent was surely prejudiced to exercise the right given to him by the law to get the sample analysed from Director, Central Food Laboratory within a period of 10 days. The learned trial Court therefore rightly acquitted the respondent.

In view of the above discussion we do not find any merit in this appeal and dismiss the same.