Suraj Bali and Another vs State of U.P.

P.N. Bakshi, J.—The applicants have been convicted u/s 7/16 of the Prevention of Food Adulteration Act, and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/-.each. In default of payment of fine they are to undergo further three months rigorous imprisonment. Their conviction and sentence have been maintained in appeal by the Sessions Judge. Hence this revision.

The prosecution case is that on 26th December, 1978 Food Inspector went to a shop of Ram Sewak at about 3.15 p.m. His father Suraj Bali was present and was exhibiting for sale besides other items 10 kilograms of Lahi oil. Having disclosed his identity the Food Inspector purchased 750 mililitres of Lahi oil on payment of price. He divided the sample in three phials and sealed them in accordance with the procedure prescribed by law. One of the sample phials was sent for analysis to the Public Analyst. His report discloses that it was adulterated inasmuch as it contained 82 per cent of linseed oil. After obtaining sanction the applicants were prosecuted and have been convicted as above.

The accused denied taking of the sample from their shop or from their possession. They produced one Maiku in defence.

I have heard the learned Counsel for the applicants. He has made a number of submissions which I will deal hereinafter.

The first submission advanced is that Section 13(2) of the Prevention of Food Adulteration Act has not been complied with inasmuch as no report of the Public Analyst nor the intimation as contemplated u/s 13(2) of the said Act was served upon them.

The prosecution in rebuttal of this submission has produced oral and documentary evidence. Oral evidence consists of the statement of Ram Kishan, PW 3, a clerk of the office of the Chief Medical Officer, Fatehpur. He has stated that he sent a copy of the report of the Public Analyst No. 35050 and a copy of the covering letter No. 6413-16 dated 13-1-1979 to both the applicants. The dispatch register was brought before the court and these entries were duly verified. Both these documents are Exts. Ka 4 and Ka 8 which have been duly proved by him. Apart from this Sri Ram Kishan has also filed two acknowledgment due receipts partaining to the above report and covering letter. One acknowledgment receipt is No. 3368 dated 3-11-1979 and the other is No. 3396 of the same date. Both these receipts have been noted in the register concerned which had also been produced before that Court.

Before entering into a discussion of these documents it would be pertenent to point out the legal position. Section 13(2) of the Prevention of Food Adulteration Act runs as follows:-

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 14A, 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 10 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.

The manner prescribed has been laid down in Rule 9-A framed under the Prevention of Food Adulteration Act which runs thus:-

The Local (Health) Authority shall immediately 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 taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed u/s 14A of the Act.

A reading of the aforesaid section coupled with the Rule indicates that statutory duty which has been cast upon the Local Health Authority is to forward the report and the intimation to the person from whom the sample was taken either by registered post or by hand. Neither the section nor the Rule casts a burden upon the Local Health Authority to further prove that the report and the intimation so sent was delivered to the accused. This, however, does not mean that the report and the intimation can be sent to any ipse dixit irrespective of his correct name or address. If that is done then in law it cannot be deemed to be a compliance of the aforesaid provisions. But if the report and intimation is sent at the correct address of the accused with the correct name which is supplied by the accused at the time when the sample is taken by the Food Inspector and the manner by which it is despatched is under registered cover, in that case u/s 114(f) of the Evidence Act a presumption of due service will arise in law. If the accused desired to rebut this presumption, the burden was upon him to lead evidence in support of his denial. In Ex. Ka 2 which is Form 6 the name and address of the applicants has been given. The same name and address has also been given in Ex. Ka 1 which is the receipt evidencing the purchase of the sample of Lahi oil. The covering letter (intimation) Ex. Ka 8 which was sent to the applicants also gives the correct name and address of the accused. The clerk of the C. M. O. Sri Ram Kishan (PW 3) has also deposed that the letters were sent to both the accused which is borne out from the entries in the register. This mass of documentary and oral evidence in my opinion conclusively establishes that registered letters were forwarded by the Local Health Authority to the accused-applicants. Thus, to my mind, there has been complete compliance of the provisions of of Section 13(2) of the Prevention of Food Adulteration Act.

It is true that the accused have denied the receipt of the registered letters and for that purpose much criticism has been levelled against the acknowledgment due receipts Exs. Ka. 9 and Ka. 10. On the acknowledgment due receipts addressed to Surajbali, there is a mention of the thumb mark of Surajbali. On the acknowledgment due receipt of Ram Sewak there is a note "Ek Kita tahrir paya. Nishani Angutha Ram Sewak." The argument raised on behalf of the applicant''s counsel is that it has not been proved that the thumb mark on the receipt Ex. Ka 9 is that of Suraj Bali, and the further argument is that there is no thumb mark at all on the other acknowledgment due form. The appellate court has, however, compared the signature of Ram Sewak with the other documents on the record and has come to the conclusion that the letters were duly served upon the accused. The learned Counsel has argued that the court below was not justified in adopting this procedure. I do not agree. It is not necessary for me to go further into this question, since I have already explained the legal position above that the duty which has been cast upon the Local Authority is to forward the report of the Public Analyst and the intimation to the person from whom the sample is taken. That statutory duty has been discharged in the instant case as already held above. If it was intended by the Legislature that the prosecution should further produce evidence to prove the receipt of the intimation to the accused there was nothing to prevent it from saying so either in the Act. or the Rules. Further we cannot loose sight of the fact that a dishonest adulterator can always find ways and means to avoid receipt of intimation. It would thus be an impossible task for the prosecution to produce evidence on this score. It is for this reason that the Legislature thought it wise not to incorporate this requirement also in Section 13(2) of the Prevention of Food Adulteration Act.

The next point which has been argued is that the sanction in the instant case is defective. Reference has been made to Exts. Ka''5 and Ka. 6. In Ext. Ka 5 which is the forwarding letter of the Food Inspector to the Chief Medical Officer for grant of sanction the names of Suraj Bah, son of Chhotey and Ram Sewak, son of Suraj Bali have been mentioned at the top. The correct address has also been given. In the body of Ext. Ka. 5 the Food Inspector has mentioned the shop of Ram Bali. The Food Inspector in his statement has explained that it was by mistake that he wrote Ram Bali instead of Ram Sewak. This explanation is an acceptable one. However, I find that the endorsement made by the Chief Medical Officer, Fatehpur on this letter Ext. Ka. 5 is "Seen, sanctioned accorded separately" dated 20-7-1979. On the same date there is a separate order of sanction duly signed by the Chief Medical Officer. This sanction has been accorded for prosecution of Suraj Bali, son of Chhotey and Ram Sewak, son of Suraj Bali, owner of the shop. The Chief Medical Officer has mentioned in the order granting sanction that he has come to the conclusion that a prima facie case has been made out against both of them after having carefully studied the report and the papers enclosed there with. In my opinion, therefore, no illegality has been committed in the order granting sanction and the authority concerned has fully applied his mind to the facts of the case before granting permission for prosecution.

The last argument which has been advanced by the learned Counsel for the applicants is that Ram Sewak was not present on the spot and that no charge was framed against him in his capacity as the owner of the said shop. The prosecution case clearly is that Ram Sewak was the owner of the shop and Suraj Bali his father sold the sample. This is clearly evidenced from the receipt Ext. Ka 1 in which Ram Sewak has been mentioned as the owner of the shop. Even from Form 6 it is clear that two notices were given to Suraj Bali one for himself and the other for Ram Sewak. In the charge the name Suraj Bali and Ram Sewak have both been mentioned. The charge is to the effect that they were found in possession and exhibiting for sale mustard oil which was sold by Suraj Bali to the Food Inspector. In view of these circumstances it can not be said that the applicants have in any way been prejudiced even if Ram Sewak has not been described as owner of the shop. A mere irregularity in the charge is curable and will not vitiate the trial unless prejudice is shown which does not exist in the present case.

For the reasons given above I am of the opinion that the applicants have been rightly convicted and sentenced. This revision application is, therefore, dismissed.

The applicants are on bail. They shall be taken into custody forthwith to serve out the unexpired portion of the sentence of imprisonment.