Gauhati High Court
Shri Sunil Nath vs The State Of Assam on 27 July, 2012
Author: I A Ansari
Bench: I A Ansari
Page 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA:
MANIPUR: TRIPURA: MIZOAM AND ARUNACHAL PRADESH)
Criminal Revision Petition 375 of 2004
Shri Sunil Nath,
Son of Late Debendra Nath,
Resident of Tarapur,
Silchar, Dist. Cachar,
Assam.
- Accused-Petitioner
- Versus -
The State of Assam,
- Respondent
PRESENT
THE HON'BLE MR. JUSTICE I A ANSARI
Advocates present:
For the petitioner : Mr. M. K. Choudhury, Sr. counsel,
Mr. M. Dutta,
For the respondent : Mr. K. Munir,
Addl. Public Prosecutor, Assam.
Date of hearing and judgment : 27.07.2012
JUDGMENT & ORDER
(ORAL)
With the help of this criminal revision, the petitioner has put to challenge the judgment and order, dated 29.05.2004, passed, in Criminal Appeal No. 11(1)/03, whereby the learned Sessions Judge, Cachar, Silchar, has upheld the judgment and order, dated 19.02.2003, passed, in CR Case No. 311/2004, by the learned Chief Judicial Magistrate, Cachar, Silchar, convicting the accused- appellant under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'PFA Act') and sentencing him to suffer rigorous imprisonment for a period of 6 (six) months and pay fine of Rs. 1,000/- and, in default Crl. Rev. P. 375 of 2004 Page 2 of payment of fine, suffer rigorous imprisonment for another period of 2(two) months. Consequently, the appeal was dismissed.
2. I have heard Mr. M. K. Choudhury, learned Senior counsel, appearing on behalf of the accused-petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam.
3. Before entering into the merit of this revision, let me take note of the case of the prosecution. The prosecution's case, as unfolded at the trial, may, in brief, be described as follows: On 10.11.2000, a Food Inspector (PW1), accompanied by his Office Peon (PW2), visited the sweetmeat shop of the accused-appellant, which was run under the name and style of M/s Annapurna Mistanna Bhander, and, upon serving notice on the accused- petitioner, in Form No. VI, PW1 purchased 300 grams of Bundia by making payment of Rs. 18/- only and sent, in course of time, one of the samples of the Bundia, so purchased, to the Public Analyst, Assam, for analysis. The Public Analyst reported that the sample, in question, was 'artificially coloured' and the same was, therefore, adulterated. On obtaining sanction for prosecution from the Local (Health) Authority, the Food Inspector (PW1) made a complaint, in writing, to the Chief Judicial Magistrate, Cachar, Silchar, seeking prosecution of the accused-petitioner under Section 7 read with Section 16 of the PFA Act.
4. At the trial, when a charge, under Section 7 read with Section 16 of the PFA Act, was framed against the accused- petitioner, the accused-petitioner pleaded not guilty thereto.
5. In support of their case, prosecution examined altogether two witnesses, namely, the Food Inspector (PW1) and his Office Peon (PW2). The accused-petitioner was, then, examined under Crl. Rev. P. 375 of 2004 Page 3 Section 313 CrPC and, in his examination aforementioned, the accused-petitioner denied to have committed the offence, which was alleged to have been committed by him, the case of the defence being, inter alia, that no notice, as provided in Section 13(2) of the PFA Act, had been received by the accused-petitioner informing him that he would be at liberty to get one of the samples of Bundia, which had been purchased by the Food Inspector from his shop, analysed by the Central Food Laboratory by making an application, in this regard, to the Court within a period of ten days from the date of receipt of the copy of the report by him (i.e., the accused- petitioner).
6. In support of its case, the defence also adduced evidence by examining two witnesses, including the present accused-petitioner, who, in his evidence, too, denied receipt of any notice from the Local (Health) Authority in terms of the provisions of Section 13(2) of the PFA Act.
7. Having, however, found the accused-petitioner guilty of the offence charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused-petitioner preferred an appeal. Since the appeal, as indicated above, stands dismissed, the accused-petitioner is, now, before this Court with this revision.
8. At the time of hearing of this revision, it has been pointed out by Mr. M. K. Choudhury, learned Senior counsel, that it was the specific case of the accused-petitioner that he had not received any notice, as provided by Section 13(2) of the PFA Act, and since the accused-petitioner had not received any notice, as required by Crl. Rev. P. 375 of 2004 Page 4 Section 13(2) of the PFA Act, he could not get the sample examined by the Central Food Laboratory and, thus, a valuable right, which has been statutorily provided to an accused, had been denied to the accused-petitioner and, on this ground alone, the accused- petitioner ought to have been held to have suffered from prejudice and he ought to have been accordingly acquitted.
9. Support for his above submissions is sought to be derived by Mr. M. K. Choudhury, learned Senior counsel, from the cases of State of Orissa vs. Gauranga Sahu, reported in 2003 Cr.L.J. 3077 (SC), and Dhananjoy Pal vs. State of Assam, 2005 (SUPPL.) GLT 764.
10. Resisting the revision, it has been submitted, on behalf of the State, by the learned Additional Public Prosecutor, that, in the case at hand, it is the specific evidence of the Food Inspector (PW1) that a notice, in terms of Section 13(2) of the PFA Act, had been sent to the accused-petitioner and this part of his evidence was never denied by the accused-petitioner at the trial and, hence, the accused-petitioner's subsequent denial, in this revision, by contending that he had not received any notice, as provided by Section 13(2), may not be attributed any importance at all. The finding of guilt, according to the learned Additional Public Prosecutor, is, in the present case, in conformity with the evidence on record and the law relevant thereto and may not, therefore, be interfered with.
11. While considering the rival submissions, as noted above, it is of paramount importance to note that though the Food Inspector (PW1) claimed that a notice, in terms of Section 13(2) of the PFA Act, had been sent to the accused-petitioner by registered post and Crl. Rev. P. 375 of 2004 Page 5 this fact had not been denied, while cross-examining the Food Inspector, by the defence, what is pertinent to note is that there was no assertion, on the part of the Food Inspector, nor was there any assertion from the end of his Office Peon (PW2) to the effect that the notice, issued under Section 13(2) of the PFA Act, which they claimed to have been issued to the accused-petitioner, had, indeed, been received by the accused-petitioner.
12. In the complete absence of any assertion, on the part of PW1 and PW2, to the effect that the notice, claimed to have been issued to the accused-petitioner under Section 13(2), had been received by the accused-petitioner, it was not imperative, on the part of the accused-petitioner, to deny receipt of the said notice, while cross- examining the Food Inspector.
13. It is, however, important, now, to note that when the accused-petitioner was being examined under Section 313 CrPC, it was put to him that a notice, under Section 13(2) of the PFA Act, had been issued to him. The accused-petitioner responded by saying that no such notice had been received by him. Section 313(4) CrPC makes it clear that the answers, given by an accused, when he is examined under Section 313 CrPC, may be taken into consideration. In such circumstances, the answer, which was given by the accused-petitioner, at the time of his examination under Section 313 CrPC, that he had not received any notice, under Section 13(2) of the PFA Act, ought to have been taken note of by the learned trial Court and given due importance; more particularly, because the accused-petitioner himself entered into the dock, as a witness, and denied receipt of the notice, which was claimed to have been sent to him in terms of the provisions of Crl. Rev. P. 375 of 2004 Page 6 Section 13(2) of the PFA Act, and when the evidence, so given by the accused-petitioner, went wholly unchallenged by the prosecution inasmuch as not even an assertion was made by the prosecution, while cross-examining the accused-petitioner, that he (i.e., the accused-petitioner) had received the said notice.
14. Situated thus, there could have been no escape from the conclusion that the notice, issued to the accused-petitioner, under Section 13(2) of the PFA Act, had not been received by the accused- petitioner.
15. The question, which, now, arises for consideration is: When a notice, in terms of the mandate of Section 13(2), is not received by the vendor concerned, what would be the consequence ?
16. While considering the question, posed above, it is of paramount importance to note that in State of Orissa v. Gauranga Sahu, reported in 2003 Cr LJ 3077 (SC), the question raised was: whether, on finding that the mandate of sub-section (2) of Section 13 of the PFA Act had been complied with, the High Court ought to have acquitted the accused holding that a statutory valuable right, available to the accused, had been taken away. Dealing with this aspect of the matter, the Supreme Court observed and held as follows:
"4. It is argued on behalf of the accused that mere dispatch of the report is not enough; and that the prosecution is further obliged to proved that the letter so dispatched had reached the addressee, i. e. the accused. We agree with this submission, as we believe that forwarding a copy of the report is not only a ritual, but also a statutory requirement to be mandatorily observed in all the cases. Dispatch of such a report is intended in inform the accused of his valuable right to get the other sample analysed from the Central Food Laboratory. " (Emphasis is added) Crl. Rev. P. 375 of 2004 Page 7
17. From what have been held by the Supreme Court in Gauranga Sahu (supra), it becomes transparent that the prosecution, besides proving that a copy of the public analyst's report had been forwarded to the accused in terms of Section 13(2) of the PFA Act, must also prove that the notice/letter, dispatched in terms of Section 13 (2), had reached the addressee i. e. the accused, for, this obligation is not a mere ritual, but a statutory mandate, which must be observed in all cases.
18. The law, so clearly laid down by the Supreme Court, in Gauranga Sahu (supra), leaves no room for doubt that compliance of Section 13 (2) will not be treated complete unless the prosecution discharges its additional obligation of proving, by adducing cogent evidence, that the notice, issued under Section 13(2), has been served upon, and/or received by, the accused.
19. The object, as the decision in Gauranga Sahu (supra) reflects, is to 'inform' the accused about his valuable right to get the sample analysed by the Central Food Laboratory. Whether in the facts of a given case, the notice can be treated to have been served on an accused or not will, however, be a question of fact, which has to be determined on the basis of the facts of the given case. In the set of facts proved in Gauranga Sahu (supra), the Court held that the letter, issued in terms of Section 13 (2), had been proved to have been received by the accused.
20. That Section 13 (2) is mandatory, in nature, has been accepted by this Court in its decision, namely, Shyamal Nag v. State of Assam, reported in 2004 (1) GLT 667, wherein the Court has observed, on taking note of the decision in Gauranga Sahu (supra), thus: ". . . . . . . . It can be safely said the Section 13 (2) is Crl. Rev. P. 375 of 2004 Page 8 mandatory in nature and it confers valuable right on the accused, denial of which would constitute prejudice to the accused entitling him to acquittal." (Emphasis is added)
21. The question, which, now, arises, is: whether non- compliance of Section 13 (2) will per se vitiate the trial or the accused is required to prove that prejudice has been caused to him, because of non-service of the public analyst's report. While dealing with this aspect of the matter, it is of prime importance to note that to receive 'fair trial' is the constitutional right of every accused and the State carries the corresponding duty, in terms of Article 21 of the Constitution, to provide 'fair trial' to the accused. The right to have 'fair trial' by an accused means that the trial has to be fair at its every stage.
22. When the Supreme Court has held, in Gauranga Sahu (supra), that the forwarding of a letter/notice alongwith the report to the accused, in terms of Section 13 (2), constitutes a valuable right of the accused to get the sample analysed by the Central Food Laboratory, it logically follows that the compliance of Section 13 (2) becomes mandatory, for, this compliance becomes a condition precedent for a 'fair trial'. If it is not followed, then, the provisions of Section 13 (2) being mandatory, the non-compliance thereof will per se vitiate the trial.
23. It was sought to be raised, on behalf of the prosecution, that even if there is no direct or cogent evidence to prove that the notice, under Section 13(2), had been received by the accused, the accused can very well, while appearing in the Court, in pursuance of the summons issued for trial, apply for sending one part of the sample to the Central Food Laboratory (hereinafter as 'the CFL' ). Crl. Rev. P. 375 of 2004 Page 9 While considering this facet of the prosecution's argument, it is imperative to note that the object of Section 13 (2), as the decision in Gauranga Sahu (supra), shows and as has been pointed out herein above, is that the accused be 'informed' of his right to get the sample analysed from the CFL.
24. In view of the fact that the object of giving of a notice, under Section 13 (2), is really to 'inform' the accused of his valuable right to get the sample analysed from the CFL, it is not enough for the prosecution to say, in the light of the decision in Gauranga Sahu (supra), that the accused ought to have known the law that he has the right to get the sample analysed from the CFL. The obligation of the prosecution is really to 'inform' the accused of his right to get the sample analysed from the CFL. If the accused in not informed that he has a right to send the sample for analysis, the mere fact that the report had been received by the accused will be of no material consequence.
25. Considered thus, the object, under Section 13(2), is not to merely ensure that the accused gets, if he so opts, analysed a part of the sample from the CFL, but the purpose is also to 'inform' the accused that he has such a right vested in him. Giving of adequate 'information' is, thus, an essential ingredient of Section 13 (2) and this cannot be said to have been achieved unless cogent evidence is adduced to show that such an 'information' had, indeed, been made available to the accused.
26. In a prosecution under the PFA Act, it is essentially the report of the Public Analyst, which forms the basis for conviction of the accused; hence, it is quite logical that the legislature, in their wisdom, deemed it mandatory for the State to not only serve a copy Crl. Rev. P. 375 of 2004 Page 10 of the Public Analyst's report on the accused, but also to 'inform' the accused of his right to get the sample analysed from the CFL. It further logically follows that if merely a copy of the report of the Public Analyst is served on the accused, this, in itself, will not constitute compliance of Section 13(2). Far from this, the prosecution has also the obligation to prove, convincingly and beyond doubt, that the accused had been 'informed' that he had a right to get analysed the sample by the CFL. If this 'information' is not given to the accused, serving of the report of the Public Analyst on the accused, will be a mere ritual and will not satisfy the rigour of Section 13 (2).
27. A microscopic reading of the provisions of Section 13 (2) shows, if I may reiterate, that the object, behind Section 13(2), is not merely to make a report of the Public Analyst reach the accused, but also to 'inform' him that he has a right to get the sample examined by the CFL. The underlying emphasis, in Section 13(2), is on the word 'information'. The dictionary meaning of the word 'information' is the knowledge communicated or received concerning a particular fact or circumstance, that is to say, let the accused know that he has a right to get the sample analysed by the CFL. Thus, Section 13(2) is an exception to the general philosophy that ignorance of law is no excuse and it can be no argument that irrespective of the fact whether the accused had received the notice under Section 13 (2) or not, he could have, on his appearance in the Court, prayed for sending a part of the sample to the CFL for analysis.
28. In Ratanlal Agarwalla vs. State of Assam, (1993) 1 GLR 286, the Full Bench of our High Court construed that the word Crl. Rev. P. 375 of 2004 Page 11 'forward', used in Section 13(2), indicates that the obligation of the prosecution is merely to send notice to the place or destination and does not mean 'serve' or 'deliver'. Having so construed, the Full Bench concluded that Section 13(2) is 'directory' and its non- compliance would not per se vitiate the trial.
29. In view, however, of the fact that the Supreme Court has, now, held, in Gauranga Sahu (supra), that the prosecution's burden is not discharged merely by sending the notice under Section 13 (2), but it must also ensure that the notice is received by the accused, for, the purpose of dispatch of the report is to 'inform' the accused of his valuable right to get the sample analysed from the CFL, there can be no escape from the conclusion that Section 13(2) is mandatory and non-compliance thereof per se vitiates the trial.
30. Since the object of Section 13(2) is really to 'inform' the accused that he has the option to get the sample analysed by the CFL, it is clear that for achievement of this object, the condition precedent is that the notice, under Section 13(2), be received by, and/or served upon, the addressee. Hence, if the report of the public Analyst is merely sent with a forwarding letter and even if the same is received by the addressee, the provisions of Section 13(2) will not be complied with, for, mere receipt of the report by the addressee does not fulfill the object of Section 13(2) until the 'information' is also given to the addressee that he has the option to get the sample analysed by the CFL.
31. Because of the fact that the object of Section 13(2) is to 'inform' the accused of his right to get the sample analysed by the CFL, its non-compliance will per se vitiate the trial and, in such a Crl. Rev. P. 375 of 2004 Page 12 case, prejudice will be implicit in such non-compliance, for, the accused would not be knowing that he has the right to get sample analysed and the report, which the Public Analyst has given, can be superseded by the result, which the analysis from by CFL will render. The lack of 'information', on the part of the accused, is, in itself, a cause of prejudice and the same is sufficient to vitiate the trial.
32. As the object of the PFA Act is to prevent adulteration of food, this Act embodies very stringent provisions for penalty by making minimum imprisonment of three months mandatory. Since the scheme of this Act shows that the conviction of the accused, eventually, rests on the Public Analyst's report and when the legislature, in its wisdom, has used the word 'inform' under Section 13(2), the provisions of Section 13(2) have to be strictly construed. Construed thus, it becomes clear that it is imperative for the prosecution to prove that the accused knew that he had a right to get sample analysed by the CFL and that this knowledge has been derived by the accused from the notice issued under Section 13(2). If the prosecution fails to prove such knowledge on the part of the accused, it will but be necessary for the Court to treat that prejudice has been caused to the accused by non-compliance of this mandatory requirement.
33. Because of what have been pointed out above, I find that the conviction of the accused-petitioner suffers from serious infirmity of law and cannot, therefore, be sustained.
34. In the result and for the reasons discussed above, this revision succeeds. The conviction of the accused-petitioner and the sentence, passed against him, are hereby set aside. The Crl. Rev. P. 375 of 2004 Page 13 accused-petitioner is held not guilty of the charge framed against him and he is acquitted of the same.
35. With the above observations and directions, this revision stands disposed of.
36. Send back the LCR.
JUDGE rk Crl. Rev. P. 375 of 2004