Allahabad High Court
Chandra Pal vs State Of U.P. on 18 November, 2019
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 41 Case :- CRIMINAL REVISION No. - 104 of 1990 Revisionist :- Chandra Pal Opposite Party :- State of U.P. Counsel for Revisionist :- Rajesh Kumar Sharma Counsel for Opposite Party :- A.G.A. Hon'ble Mrs. Sunita Agarwal,J.
Heard learned counsel for the revisionist and learned A.G.A. on behalf of the State respondent.
The present criminal revision has been filed under Section 397/401 Cr.P.C. seeking to challenge the order dated 25.1.1989 passed by the Judicial Magistrate, Hapur, Ghaziabad in Criminal Case No. 1080 of 1986 (State vs. Shyodan Singh and others) under Section 7(1)/16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (In short as "the Act, 1954"), registered in Police Station Garh Mukteshwar, District Ghaziabad and the order of confirmation of sentence dated 12.1.1990 passed by the the VIII Additional Sessions Judge, Ghaziabad in Criminal Appeal No. 08 of 1989.
The submission of learned counsel for the revisionist is that the order of court below suffers from material illegality, inasmuch as, opportunity of fair and impartial trial had not been accorded to the revisionist. Revisionist was charged with the offence of adulteration of milk, sample of which was collected on 22.12.1981 but the report of laboratory came on 23.1.1982 and after ten months of the receipt of the report, on 13.11.1982 the complaint was filed under Section 7(1) readwith Section 16(1)(a)(i) of the Act, 1954.
Notice was issued to the revisionist on 4.12.1982. The remedy provided to the revisionist to get an independent report from the laboratory under Section 13(2) of the Act, 1954 had, thus, been taken away. The conviction of the revisionist is based solely on the report of the laboratory/Public analyst, which was obtained on 23.1.1982.
The report states that fat content in the milk sample was deficient to the extent of 25% and solid fat was found in excess to the extent of 39%.
Learned A.G.A. could not dispute the said submission of the learned counsel for the revisionist.
Having considered the submissions of learned counsel for the parties and perused the record, it is found that the court below had rejected the objection of the accused/revisionist pleading non-compliance of the provisions of Section 13(2) of the Act, 1954 on the ground that he did not move any application before the court for getting an independent analysis of the sample from the Central Food Laboratory Calcutta. The plea of violation of the said provisions, therefore, was repelled.
As far as the plea of violation of section 10 (7) of the Act 1954 is concerned, it is recorded in the order of conviction that sample was taken in the presence of two independent witnesses and their non-examination by the prosecution would not have any affect on the case of the prosecution.
It is pertinent to note here that in case of Vijendra vs State of U.P. reported in 2019 0 AIR (SC) 4351, the Apex Court has held that the conviction in a case of non compliance of the accused of section 10(7) and section 13(2) of Food Adulteration Act 1954 cannot be sustained.
It was held that question as to whether the sample was appropriately taken after proper stirring and churring of milk and whether the same was sent for analysis also in such manner, is relevant and the same has to be established to prove compliance of section 10(7) of the Act.
It was held that the objective of section 10(7) is to ensure actual and genuine transaction of sale. The provision is mandatory to the extent that the Food Inspector must make genuine efforts to get corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Simultaneously, it was observed that the milk which is a primary product, the fat content in it would also depend on the appropriate manner in which the sample was taken. Stirring and churning of the milk before taking sample may become necessary for the ingredients of the milk 'Solid non fat' and 'milk solid' fat getting consistency in order to determine the percentage in their completeness.
In the facts of that case, it was held that the opinion of public analyst that the milk sample was deficient by 12% in 'milk fat' and 27% in 'non-fatty solids' would be relevant only if it is established that the sample for such analysis was taken in a proper manner after stirring which would make the fat and non fat into homogenous mixture. Production of appropriate evidence was necessary to corroborate testimony of the Food Inspector to sustain the conviction.
It was further held therein that compliance of Section 13(2) to furnish report of the Public analyst to enable the accused to seek an independent report from the Central Food Laboratory, is mandatory. The said provision being a valuable right, substantial compliance of the same is necessary.
It was held that :-
"The very purpose of furnishing such report is to enable the accused to seek for reference to the Central Food Laboratory for analysis if the accused is dissatisfied with the report. Such safeguard provided to the accused under Section 13(2) of the Act is a valuable right. In that view even if the despatch of the report on 07.04.1980 is taken as substantial compliance though it is beyond the period of 10 days from 18.03.1980 i.e., the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the accused; in the instant facts the valuable right available to the accused/appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the appellant/accused is made to suffer the penal consequences, it will have to be construed strictly."
It was further observed as under:-
"The manner as to whether the sample was appropriately taken after properly stirring the milk and whether the same was sent for analysis also in such manner has, therefore, not been established.
In the light of the said legal position, in the facts of the instant case, it is found that in the statement of the Food Inspector there is no suggestion that the sample was taken in an appropriate manner by stirring and churning of the milk. The report of public analyst says that the milk sample was deficient by 25% in milk fact and 39% in milk non solid fat. It is not known as to whether the consistency of milk sample was upto the mark and due care had been taken by the Food Inspector in the process of taking of the sample.
This aspect of the matter has been completely ignored by the trial court and there is no discussion at all on this issue.
Moreover, the revisionist had taken a categorical objection before the trial court regarding non-compliance of Section 13(2) of the Food Adulteration Act stating that Public Analyst report was not provided to him within 10 days as provided under Rule 9B of the Prevention of Food Adulteration Rules, 1955.
The said contention was brushed aside by the trial court by recording that the appellant did not move any application before it with the said plea. The said reason is wholly out of context.
To sustain the prosecution case, it was necessary that there was substantial compliance of Section 13(2) of the Act.
In the instant case, sample was taken on 22.12.1981 and was sent to the Public laboratory. The report of Public analyst was received on 23.1.1982. After ten months of receipt of the report, the complaint was filed. Rule 9B of the Rules, 1955 provides that the Local Authority shall, within ten days, after institution of prosecution forward a copy of Analyst's report by registered post or by hand as may be appropriate. The purpose of section 13(2) is to enable the accused, if he so desires, to make an application to the Court for getting the sample retested by the Central Food Laboratory.
For the fact that the prosecution was launched after ten months of the receipt of Public analyst report, forwarding the said report by registered post to the accused/revisionist was a futile exercise, in as much as, after ten months even if the sample would have got analysed by the Central Food Laboratory, it was not possible to ascertain correct consistency of milk. The obvious reason is that the properties of milk sample were bound to change with the passage of time. It was not possible to maintain the same properties as that when the sample was taken after such a long time. The provisions of Section 13(2) of the Act being a valuable right of the accused, non-compliance of the said provision would be fatal to the prosecution case.
In the instant case, as the public-analyst report had not been provided to the accused within ten days and there was a substantial delay in launching prosecution, it is held that the entire prosecution case would fall for non-compliance of section 13(2) of the Food Adulteration Act read with the Rule 9B of the Rules, 1955 framed thereunder.
For the above discussion, the judgment and order dated 25.1.1989 passed by the Judicial Magistrate, Hapur, Ghaziabad and the order of confirmation of sentence dated 12.1.1990 passed by the VIII Additional Sessions Judge, Ghaziabad are hereby set aside.
The revisionist is acquitted of the charges under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.
The bail bonds furnished by the revisionist are discharged. Fine, if paid, be refunded to the revisionist.
The revision is allowed.
Certify the judgment to the court below immediately.
Order Date :- 18.11.2019/Harshita