State of Punjab vs Balwant Singh

B.S. Yadav, J.

On 17th August, 1979 PW 2 Dr. Satpal, exercising the powers of Food Inspector, intercepted Balwant Singh respondent who was carrying 12 kgs. of cow''s milk, contained in a drum for sale. Dr. R.C. GArg was accompanying Dr. Satpal. Dr. Satpal disclosed his identity to the respondent and after observing the necessary formalities, purchased 660 millilitres of cow''s milk against payment. The sample of milk was divided into 3 equatal parts and put into 3 neat and clean bottles. Other formalities adding preservative, wrapping and sealing were also performed by Dr. Satpal. The requisite memos were also prepared which were signed by respondent. One bottle of sample, along with form No. 7 having the seal impression of the seal used was sent in a separate packet to the Public Analyst through a messenger. Other formalities prescribed under rules were also complied with. The remaining two samples were deposited with the Local Health Authority. On receipt of the Chemical Examiner''s report ExPE to the effect that the fact contents of the sample were deficient by 20 percent. Dr. Satpal filed complaint Ex. PG in Court.

At the close of the prosecution evidence, the respondent was examined under Section 313 of the Code of Criminal Procedure. He denied the prosecution allegations and pleaded that he did not sell milk and on the day in question, he had come to meet his relations and was falsely implicated in this case as the actual person who was carrying a drum had run away after leaving the same.

In defence the respondent examined DW 1 Balkar Singh who belongs to the village of the respondent. He merely stated that the respondent is not a milk vendor and that the cultivates land.

In the trial Court, during argument, the respondent did not appear to have disputed the factum of taking sample from his milk. The only argument advanced on his behalf is that Court was that the provisions of Sections 13(2) of the Prevention of Food Adulteration Act (hereinafter referred as the Act) and Rule 9A of Prevention of Food Adulteration Rules (hereinafter referred as the Rules) were not complied with, learned trial Court relying upon Amar Chand v. State of Punjab, 1981 P.L.R. 216 and some other rulings held that the provisions of Section 13(2) of the Act and Rule 9A of the Rules were mandatory and noncompliance thereof vitiated the trial and consequently, acquitted the respondent. The State of Punjab has come to this Court in appeal.

Shri V.P. Prashar, learned Assistant Advocate General, Punjab argued that in the present case, the violation of Section 13(2) of the Act has not been due to any in action on the part of the Local Health Authority and therefore, the respondent was wrongly acquitted by the learned trial Court. To appreciate this arguments, it becomes necessary to give some facts.

As noticed earlier, sample of milk was taken on 17th August, 1979. The report of the Public Analyst is dated 6th September 1979. The complaint which is dated 17th November, 1979 was filed in Court on the 22nd November, 1979. In this complaint, the substance of the Public Analyst''s report was given and the learned trial Court issued summons to the respondent for 8th December, 1979. However service could not be affected and warrants of arrest were issued against the respondent. Ultimately, the respondent appeared in Court on 18th November, 1980. On which date a copy of the complaint filed by the Food Inspector was supplied to him.

During the trial, the prosecution examined PW 1 Parveen Kumar Clerk of the Office of Civil Surgeon, Faridkot, who has stated on oath that on 6th December, 1979 he appeared the forwarding letter under the instructions of the Civil SurgeonCumLocal Health Authority, Faridkot and along with that, a copy of the report of the Public Analyst was forwarded to the respondent by the registered post, vide postal receipt Ex. P1. He has also proved a copy of the forwarding letter and the same is Ex. PA which bears the signatures of the Local Health Authority Dr. Manohar Kaur. It is dated 4th December, 1979. Ex. P2 is registered cover in which the forwarding letter and copy of the report of Public Analyst were sent. The report of the postman on the cover shows that attempts were made to deliver the same on 12th, 13th and 15th December, 1979, but the addressee was not available at his house and his family members were not prepared to disclose his address. The letter was returned to the sender.

PW 1 Parveen Kumar has further stated that on 10th April, 1980 again, copy of the report of the Public Analyst was sent to the respondent with forwarding letter Ex. PB under registered post vide postal receipt Ex. P3 but that letter was also received back undelivered. Ex. P4 is that envelope. The statement of this witness was recorded on 31st March, 1981. On that day, under the instructions of the Court envelope Ex. P4 was opened and copy of the report of the Public Analyst, along with the letter of the Local Health Authority, Faridkot was delivered to the respondent.

The learned counsel for the respondent argued that in view of the provisions of Section 13(2) of the Act and Rule 9A of the Rules, the Local Health Authority has to send immediately, after the institution of the prosecution, to the person from whom the sample was taken, a copy of the report of the Public Analyst, along with a letter, informing him that if he so desired, he could have the other part of the sample sent to the Director of Central Laboratory for analysis. He further argued that the respondent has been deprived of his valuable right of having the other part of the sample analysed by the Director of Central Food Laboratory, as the copy of the report of Public Analyst was delivered to the respondent on 31st March, 1981 and by that time, other part of the sample milk, which must have been kept at room temperature, must have deteriorated and become unfit for analysis. He has cited K. Krishnakutty Nair v. State, 1983 Crl.L.J. 78 wherein it has been remarked.

"Now about Rule 9A. It is useful to note that this Rule mandates the Local (Health) Authority to forward a copy immediately after the institution of the prosecution. The word immediately in this Rule is not qualified by any other words enabling the Local Health Authority to take its own time in forwarding a copy. This can be registered post or by hand. The object of the rule making authority in imposing this rigour is to enable the accused to pursue his remedies in expedition once he gets a copy of the report of the result of the analysis. A comparison of R. 9A with the above provisions leads to the conclusions that rigour imposed by Rule 9A is more stringent the rigour imposed by the other Sections."

The facts of that case are some what different. In that case, the complaint was filed by the Food Inspector on 13th December, 1977, while the copy of the result of the analysis was despatched to the accused on 25th February, 1978, thus, causing delay of nearly 74 days. The learned counsel has tried to argue that prejudice to the accused is inherent if Section 13(2) of the Act is violated. However, this Division Bench in Cr. A. 395, DBA of 1981 State of Haryana v. Amar Nath, decided on 3rd Feb. 1983 has held that Section 13(2) of the Act and Rule 9A of the Rules through couched in mandatory terms, are to be taken as directly in nature and the accused is not entitled to acquittal, merely on showing that there has been infraction of those provisions. He has further to show that he had been prejudiced on account of violation of the said provisions by the Local Health Authority or by some conduct of the prosecution. In the present case, the prosecution has led evidence to show that the Local Health Authority tried to comply with Section 13(2) of the Act and Rule 9A of the rules, soon after the launching of the prosecution, but the letter could not be delivered to the respondent for no fault of the said Authority. Another attempt was made by the Local Health Authority to comply with those provisions, but again the service of the respondent could not be effected. It is not the contention of the respondent that the address given on the covers Ex. P2 and P4 is incorrect. Even the processes issued by the Court for a considerable time the respondent cannot be heard to say that the said provisions have not been complied with and he has been prevented from exercising the valuable right given to him about having the other part of the sample examined by the Director of Central Food Laboratory and thus, prejudice has been caused to him. If the contention of the learned counsel for the respondent is accepted, then it means that a person from whom sample of food article has been taken, would be entitled to avoid service of letter issued by the Local Health Authority as well as the summons issued by the Court and then appear after one year and say that as he had not been informed immediately after institution of the proceedings about the Public Analyst''s report, nor was he informed about his right of having the second part of the sample examined by the Director of Central Food Laboratory, he could not apply for sending the second part of sample to the Director, Central Food Laboratory for analysis and thus, he has been prejudiced. This could not be the intention of law. We hold that the respondent has been wrongly acquitted by the learned trial Court in the present case.

No other point was raised.

For the reasons given above, we allow the present appeal and convict the respondent under Section 16(1)(a)(i) read with Section 7 of the Act and sentence him to undergo imprisonment of six months and to pay a fine of Rs. 500/. In default of payment of fine, he is directed to undergo further rigorous imprisonment for three months.