Madhya Pradesh High Court
Devendra Ku. Agrawal vs The State Of Madhya Pradesh on 7 April, 2022
Author: Virender Singh
Bench: Virender Singh
1
CRR No.3568 of 2021
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
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BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
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Criminal Revision No.3568/2021
Between:-
Devendra Ku. Agrawal, S/o Shri Baijnath
P. Agrawal, aged about 28 years,
Occupation : Running Hotel, R/o Anand Nagar,
Hoshangabad, Teh. and Distt. Hoshangabad (M.P.)
... Petitioner
AND
(1) State of M.P. through District Magistrate
Distt. Hoshangabad
(2) Jagdish P. Lovanshi, Food and Medicine Department
Hoshangabad, Distt. Hoshangabad (M.P.)
...Respondents
Shri Vijay Nayak with Shri Anand Nayak, counsel for the
petitioner.
Shri Satyapal Chadhar, Public Prosecutor for the State.
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JUDGMENT
(07.04.2022) This revision petition is directed against appellate judgment dated 30.10.2021 passed by the First Additional Sessions Judge, Hoshangabad in Cri. Appeal No.134/2015, whereby conviction of petitioner for the offence punishable under Sections 16(1)(a)(i) r/w 2(i-a) and 7(i) of the Prevention of Food Adulteration Act, 1954, as recorded by Judicial Magistrate First Class, Hoshangabad vide judgment dated 23.07.2015 passed in Cri. Case No.1704/2010 and consequent sentences were affirmed.
2 CRR No.3568 of 20212. Vide said judgment, the petitioner has been convicted under Sections 2(i-a), 7(i) read with 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act') and sentenced him to undergo R.I. for 6 months and to pay fine of Rs.1,000/- with default stipulation.
3. Succinctly stated relevant facts giving rise to the present petition are that on 08.09.2010 at about 3.15 in the afternoon, Food Inspector Jagdish P. Lovewanshi visited the establishment of the petitioner situated in Pili Khandi, Meenakshi Chowk, Hoshangabad viz. 'Agrawal Hotel', where the petitioner was selling sweets/snacks. Suspecting about the quality of a salty snack (Namkeen-Sev), following due process, the Food Inspector purchased 900 gms. of Sev by paying the price. He divided the same in three parts (300 gms), kept each part in a clean polythene, tied them with thread, then kept them in three corrugated boxes, packed and labeled them, placed paper slips, signed them and also obtained sign of the petitioner, then tied them with thread and sealed them by placing a wax seal. He prepared memo of the proceedings conducted on the spot, sent a sample to the State Food Laboratory and deposited rest of the samples with Deputy Director, Food and Drugs Administration, Hoshangabad. On analysis, the sample was found adulterated (Ex.P/14). After receiving the report of Public Analyst, the Food Inspector obtained prosecution sanction, filed complaint against the petitioner and forwarded him a copy of the report of Public Analyst.
4. Apart from the oral evidence, the prosecution also produced and proved following documents :
3 CRR No.3568 of 2021(i) Ex.P/1 : Letter of appointment of Food Inspector Jagdish P. Lovewanshi and his name is reflected at Sl. No.28;
(ii) Ex.P/2 : M.P. Gazette wherein name of Food Inspector Jagdish P. Lovewanshi is reflected at Sl. No.28;
(iii) Ex.P/3 : Certificate given to Food Inspector Jagdish Prasad Lovewanshi with regard to training of collecting sample and inspection;
(iv) Ex.P/4 : Order of the Deputy Director, Food and Drugs Administration regarding posting of Food Inspector Jagdish P. Lovewanshi at Hoshangabad;
(v) Ex.P/5 : Form-VI regarding taking of sample for public analyst;
(vi) Ex.P/6 is a receipt;
(vii) Ex.P/7 is a label;
(viii) Ex.P/8 is a panchnama;
(ix) Ex.P/9 is a memorandum as per Rule 17;
(x) Ex.P/10 is a receipt of post office;
(xi) Ex.P/11 is a receipt of post office;
(xii) Ex.P/12 is a receipt;
(xiii) Ex.P/13 is a letter;
(xiv) Ex.P.14 : Report of Public Analyst, State Food Laboratory, Bhopal
(xv) Ex.P/15 : Request for sanction for prosecution; (xvi) Ex.P/16 : Order for sanction for prosecution; (xvii) Ex.P/17 : Complaint against the petitioner by Food Inspector Jagdish P. Lovewanshi; (xviii)Ex.P/18 : Information to Deputy Director, Food and Drugs Administration, Hoshangabad regarding complaint against the petitioner;
(xix) Ex.P19 : Notice sent to the petitioner; and (xx) Ex.P/20 is the postal receipt.
5. The petitioner was called upon. He appeared. The charge under Section 16(1)(a)(i) read with Section 2(ia), 7(i) of the Act 4 CRR No.3568 of 2021 was framed against him. He denied the charge and pleaded for trial.
6. After trial, the petitioner was convicted and his conviction and sentence has been upheld by the appellate Court as stated in para 1 above.
7. The petitioner has preferred this petition on several grounds but during arguments, no other ground except non-compliance of the provision under Section 13(2) of the Act has been pressed into service.
8. The learned counsel for the petitioner submitted that the report of public analyst forwarded to the petitioner was never served upon him. This was mandatory and since due to its non- service, he was deprived to avail his valuable right to get the second sample analyzed from the Central Food Laboratory, his conviction is bad in law and deserves to be set aside.
9. The ld. counsel has placed reliance on the decision of the Supreme Court in the case of Narayan Prasad Sahu vs State of M.P. reported as (2022) 1 SCC 87 wherein relying upon the judgment rendered in Vijendra vs State of Uttar Pradesh reported as (2020) 15 SCC 763, it has been held that service of report of public analyst on the petitioner is must and in absence thereof, his conviction cannot be sustained.
10. The ld. Public Prosecutor appearing for the State has opposed the prayer. He referred to paragraphs 19 and 20 of the impugned judgment of the appellate Court wherein, it has been held that report of public analyst was sent to the petitioner by Registered A/d on his undisputed address, and therefore, service thereof shall be presumed. Notice (Ex.P/19) and postal receipt 5 CRR No.3568 of 2021 (Ex.P/20) have been referred to substantiate the conclusion arrived at by the trial Court.
11. I have heard the parties at length and have perused the record.
12. In Narayan Prasad Sahu's case (supra), the Court held that sending of notice under Section 13(2) of the Act by registered post has to be proved on record by documentary evidence and in absence of any proof of postal receipt or acknowledgment, mere statement of PW-1 and PW-2 that notice was sent by registered post would not suffice to warrant conviction of the appellant and in Vijendra's case (supra), Hon'ble the Apex Court discarded the finding of the High Court with regard to the service of notice on the ground of endorsements made by the postman on the envelope containing the report to the effect that even after repeated attempts, the receiver neither found on the given address nor responded to the information given by him, observing that the endorsements on the postal envelope were not proved by examining the postman. But, this is not the situation in the case in hand. In this case, the report was sent by registered A/D and PW-2 B.K. Tiwari has proved this fact. He also proved notice (Ex.P/19) and its postal receipt (Ex.P/20) and the petitioner has not raised voice on this issue before this Court.
13. In Khem Chand vs State of H.P., reported as 1994 Supp (1) SCC 7 : 1994 SCC (Cri) 212 at page 8, the Supreme Court said that :
"2. In this appeal again the same point is urged and it is further contended that the accused was prejudiced inasmuch as there is nothing to show that 6 CRR No.3568 of 2021 the report of the Analyst was sent by registered post to the accused as required under Rule 9(j). We need not go into the question of law in this case. When the Food Inspector was examined, he deposed in his chief-examination that the report of the Analyst was sent to the accused by registered post. He was not cross-examined. The only inference that can be drawn is that the accused received the report. In such a case the question whether it was sent by registered post or otherwise, does not assume importance."
14. Therefore, the judgments cited by the learned counsel for the petitioner are not applicable in this case.
15. Further, admittedly, after marking his appearance before the trial Court along with his counsel, the petitioner never applied to get the second sample examined by the Central Food Laboratrory. Therefore, at this stage, he cannot say that due to non-compliance of these mandatory provisions, any prejudice had been caused to him. The Hon'ble Supreme Court has constantly followed this view. In Babu Lal Hargovindas vs State of Gujarat reported as (1971) 1 SCC 767 : 1971 SCC (Cri) 337 at page 770, it was held that since the right given to the vendor by Section 13(2) was not availed of, the appellant had not even made an application to send the sample to the Director of Central Food Laboratory, no such defence is available to the appellant. While referring several land mark judgments, the Hon'ble Apex Court reiterated this view in Prabhu vs State of Rajasthan reported as 1994 Supp (2) SCC 177 : 1994 SCC (Cri) 895 at page 179 wherein it is held :
"6. This Court considering the language of Section 13(2) in Babu Lal Hargovindas vs State of Gujarat (1971) 1 SCC 767 held that the accused had an opportunity to make an application to the court for sending the sample to the Central Food Laboratory 7 CRR No.3568 of 2021 for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13(2), since he did not make any application to the court for sending it. This view was followed in Ajit Prasad Ramkishan Singh vs State of Maharashtra (1972) 2 SCC 180. In Tulsiram v. State of M.P. (1984) 4 SCC 487 this Court held that Rule 9-A is directory and if after receiving the Public Analyst's report, the accused does not apply to the court to have the sample sent to the Central Food Laboratory, he may not be heard to complain about delay in receipt of the report by him, unless he is able to establish some other prejudice to him.
...
9. Under these circumstances and following the consistent law laid by this Court, we are of the considered view that since admittedly the appellant had not availed of the remedy under Section 13(2) to send the sample of the article of food for analysis by the Central Food Laboratory, it cannot be held that the appellant suffered prejudice on account of delay in laying the prosecution. It is also seen from the record that within 10 days from the date of the filing of the prosecution, the report was sent to the appellant, though Shri S.K. Jain seeks to contend that there is no proof of service. Since it being a question of fact and not disputed in the courts below, we cannot go into that question. In that view, we hold that no prejudice has been caused to the appellant and the conviction of the appellant under Section 7 read with Section 16 of the Act and sentence of 3 months' imprisonment imposed by the High Court does not warrant interference."
16. In this regard, we can also refer para 22 of Shamim Ahmad vs State of U.P. 2019 SCC OnLine All 5845 wherein it is held :
8 CRR No.3568 of 202122. Therefore, as a proposition of law, it cannot be doubted that prosecution, when challenged, must satisfy that notice issued under Section 13(2) has been served upon accused but where accused at the stage of Revision raise such plea that notice has not been served upon him and there is non-compliance of Section 13(2), but no such issue was raised in Courts below particularly, Lower Appellate Court, this Court would not allow accused to take such factual plea when as a matter of fact, the stand taken before Courts below shows that service of notice was not disputed, instead notice was challenged on another ground. The mere fact that mention of wrong Court was an issue raised before Court below is sufficient to prove the fact that notice was actually served upon Revisionist. Hence, even third submission has no force.
17. Thus, the sole ground raised by the petitioner is not tenable. The arguments, pressed by the petitioner's learned counsel, being without any substance, and the sample of namkeen sev sold to the Food Inspector, being proved to be adulterated, the order of conviction as passed by the Courts below, does not call for any interference. The sentence too, as awarded, is quite appropriate in the circumstances.
18. The petitioner's revision, hence, is dismissed and the order of conviction and sentence as passed against him by the lower appellate Court, is maintained in toto.
(Virender Singh) JUDGE vinod Digitally signed by VINOD VISHWAKARMA Date: 2022.04.08 15:44:38 +05'30'