State of U.P. vs Beche Singh

P.P. Gupta, J.—This is a criminal appeal filed on behalf of the State of U P. against the judgment and order dated 7-11-1978 passed by Sri L. Dungrakoti, Additional Sessions Judge, Almora, in Criminal Appeal No. 32 of 1978 (A) allowing the appeal of the accused-Appellant, viz. Beche Singh'' and acquitting him of the charge u/s 7/16 of the Prevention of Food Adulteration Act.

The brief facts giving rise to this appeal are that Sri D. D Pant, Food Inspector, Almora, on 5-7-1977, at about 7.00 A.M., purchased 750 ml. baffalo milk against payment of Rs. 1.50 P. as price thereof after giving notice in form VI and issuing receipt of payment of Ex. Ka 2. The sample of milk was divided into three portions and each portion was sealed and levelled. One of the samples was sent to the Public Analyst, Lucknow for chemical examination It was found to contain 5.2% fat contents and 95% non-fatty solids. According to the report of the Analyst, Ex. Ka-6, the sample was found adulterated. The Chief Medical Officer, Almora accorded sanction, Ex. Ka-10, for the prosecution of the accused. A complaint, thereafter, was filed on 27-2-1978. The notice about the result of the report of the Public Analyst was also given to the accused on 21-2-1978 by registered post, vide postal receipt Ex. Ka-9. The learned Magistrate relying upon the prosecution evidence convicted and sentenced the Appellant. Feeling aggrieved, he preferred an appeal which was allowed by the learned Additional Sessions Judge. Being dissatisfied from the judgment and order of the learned Additional Sessions Judge, the State of U.P. has come up in an appeal before this Court.

Sri P.K. Srivastava, learned A.G.A., appearing on behalf of the State, was heard at length and the record of the case was perused.

In this case I find no merit in the appeal. It appears that the Chief Medical Officer, Almora, while sanctioning prosecution of the accused, has not applied his mind to the facts of the case. Firstly, the case in the complaint is that the sample was taken while the accused was carrying milk. According to the sanction, the sample was taken from the shop of the accused. Thus the accused could not know the true facts and was thus handicapped in defending himself. Secondly, the sanction is on a printed form. The blanks have been filled in by some one else than the Chief Medical Officer. The Chief Medical Officer has simply initialed the sanction. In no case it can be said to be a sanction in accordance with law given after application of mind and ascertaining the correct facts of the case. The sanction, in my opinion, is illegal and cannot be said to be a sanction in accordance with law.

There is another serious illegality committed in this case. Under the provision of Section 13(2) of the Act, a duty has been cast Under Sub-section (2) on the Local (Health) Authority to send a copy of the result of the analysis to (i) the person from whom the sample of the article of food was taken and (ii) the person, if any, whose name, address and other particulars have been disclosed u/s 14-A informing him that he should make an application, if he so desired, to the court within a period of ten days from the date of receipt of the aforesaid copy, to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. It goes without saying that the requirement of Section 13(2) must be conformed to the letter of the law.

In this connection, the relevant Rule 9-A has also to be considered. Under Rule 9-A, as it stands now with effect from 4-1-1977, the report of the result of the Analyst in Form III has to be delivered to the affected party either by registered post or by hand, as may be appropriate. What is of significance in the rule is that the forwarding of the copy of the report has to be done ''immediately after the institution of prosecution.'' Hence both u/s 13(2) as well as Under Rule 9-A, the forwarding of the report by the Local (Health) Authority has to be done after the institution of the prosecution, and not before.

It has consistently been held in several decisions that Section 13(2) is mandatory in its terms. The twin-fold object sought to be achieved by the amendment of the section is protecting the interests of society by ensuring that the trial of cases filed under the Act are not protracted by the accused by making application at a belated stage for the sample being sent to the Central Food Laboratory for further report, and at the time, ensuring that due opportunity is given to the accused to set right any mistake contained in the report of the Public Analyst by having a sample sent to the Central Food Laboratory and obtaining a report from that institution. Since the opportunity afforded to an accused to have one of the samples sent to the Central Food Laboratory is restricted to a period of ten days and time will begin to run from the date of service of a copy of the report together with the requisite information contemplated u/s 13(2), it necessarily follows that the sending of a copy of the report as well as the information contemplated in Section 13(2) must be done after the institution of the prosecution.

What has been done in the instant case is that the complaint was lodged on 27-2-1978, while the report and information was sent to the. accused earlier on 21-2-1978. For the reasons given above, sending the report and information earlier and instituting the prosecution later will not amount to full and proper compliance with the terms of Section 13(2) and, further more, the accused will be left wondering in which court he should make application and as to when he should make application. In these circumstances the conviction and sentence of the accused was bad in law for non-compliance of the mandatory provisions contained u/s 13(2) of the Act.

The learned Additional Sessions Judge has, therefore, rightly allowed the appeal and set aside the conviction and sentence imposed by the learned Magistrate on the accused.

For the reasons given above, the appeal has no force and is hereby dismissed.