Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1167 OF 2019
(Arising out of S.L.P. (Criminal) No.4314 of 2015)
Vijendra .…Appellant(s)
Versus
State of Uttar Pradesh ….Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
Leave granted.
2. The instant appeal arises from the judgment
Signature Not Verified
passed by the High Court of Allahabad in Criminal
Digitally signed by
MADHU BALA
Date: 2019.07.31
17:09:36 IST
Reason:
Revision No. 1595 of 1988 in and by which the High
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Court dismissed the revision filed by the appellant
thereby affirming the conviction of the appellant under
Sec. 7(1)/16(1)(a)(i) of Prevention of Food Adulteration
Act, 1954.
3. Sri R.C. Kansal, Food Inspector filed a complaint
stating that on 16.10.1979, at about 8:00 AM, while he
was posted as Food Inspector at Primary Health Centre
Bhojpur, he found the appellant taking buffalo milk for
sale on the Acchapalgarhi Road, Pilakhuwa, District
Ghaziabad. On demanding license from Appellant, it
was revealed that he did not have any license for selling
the milk. Suspecting adulteration in the milk,
complainant prepared a notice Ex.6 and gave a copy to
the appellant. After that, in the presence of public
witness Radhey Shyam/PW3, the complainant
purchased 660 ml milk for 1 Rupee 65 paise and gave
the money to the appellant and took thumb impression
of the witness. The purchased milk was divided equally
and filled in 3 clean bottles. The bottles were sealed in
accordance with the rules and labels were pasted on
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them. Thumb impression of the Appellant was taken on
the labels posted on the bottles. One sample was sent
to Public Analyst Lucknow on 17.10.1979. The rest of
the 2 bottles were submitted before the office of Chief
Medical Officer, Ghaziabad. The Public Analyst received
the sample on 18.10.1979, who prepared report Ex.No.
4 dated 15.11.1979 with the finding that the sample of
buffalo milk was deficient by 12% in milk fat and 27% in
nonfatty solids. The sample was thus found to be
adultered.
4. The complainant submitted an application along
with relevant material seeking consent for prosecution.
The Chief Medical Officer/Sri. Y.K. Bhushan granted
consent for prosecution under Section 7(1)/(16)(1)(a)(i)
of Prevention of Food Adulteration Act vide order dated
06.02.1980.
5. After that, the complainant prepared the
complaint/Exhibit A8 and produced it before the court
on 18.03.1980, whereupon the court took cognizance
and criminal case No. 787 of 1986 was registered.
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6. The Public Analyst’s report was forwarded to the
Appellant by registered post on 07.04.1980.
7. The prosecution examined the complainant/R.C.
Kansal as PW1, Jaipal Singh/clerk in the office of Chief
Medical Officer as PW2 and Radhey Shyam, as PW3.
PW2 stated in his statement that on 07.04.1980, he
sent the report of the Public Analyst to the Appellant by
registered post. PW3, who is an independent witness,
was declared hostile by the prosecution. The appellant,
in his turn, pleaded not guilty. He however did not
produce any evidence in defence.
8. Before the Trial Court, it was argued on behalf of
the appellant that the independent witness/PW3 has
not supported the case of the prosecution and there is
noncompliance of Section 10 (7) of the Food
Adulteration Act. Appellant further alleged non
compliance of provisions of Section 13 (2) of the Food
Adulteration Act. Regarding PW3 being hostile, the
trial court opined that according to the complainant,
sample has been taken in the presence of independent
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witness. It has further observed that the Supreme
Court in the case of Ram Lubhaya vs. Municipal
1975 FAJ page no. 253, held that it is not
Corporation,
a rule of law that guilt cannot be proved only on the
evidence of Food Inspector. Regarding compliance of
provisions of Sec. 13 (2) of Prevention of Food
Adulteration Act, the court held that the compliance is
clear from the statement of PW2 that report of public
analyst and letter of Chief Medical Officer has been sent
to the address of the appellant through registered
receipt dated 07.04.1980. The court accordingly
convicted the appellant and sentenced him to 6 months
rigorous imprisonment and fine of Rs. 1000/ with
default sentence.
9. Appeal filed by the Appellant was also dismissed
with the finding that the appellant has been rightly
convicted by the trial court.
10. The appellant herein then filed Criminal Revision
No. 1595 of 1988 before the High Court contending that
there was noncompliance of Section 10 (7) of Food
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Adulteration Act inasmuch as no independent witness
supported the prosecution case and of Section 13 (2) of
the Food Adulteration Act inasmuch as the application
was filed before the Magistrate on 18.03.1980, while the
report of Public Analyst was sent on 07.04.1980, i.e.
with delay of almost 19 days. The High Court rejected
both these objections raised by the Appellant, holding
that as far as Section 10 (7) is concerned, the objective
of this section is to ensure actual or genuine transaction
of sale. The provision is mandatory to the extent that
the Food Inspector must make genuine efforts to get the
corroboration of one or more persons present on the
spot to witness his act of taking sample and completion
of other formalities. Once such effort has been made,
but in vain, it cannot be said that there is any non
compliance of this section. The High Court also relied
on the decision of the apex court in
Shri Ram Lubhaya
(Supra) wherein this court inter alia held that the
obligation which Section 10 (7) casts on the Food
Inspector is to ‘call’ one or more persons to be present
when he takes action. If none was willing to cooperate,
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he cannot compel their presence. Regarding the
submission that there is noncompliance of Section 13
(2) of the Food Adulteration Act, the High Court noted
that the requirement of this section is to send report
after institution of prosecution against the person from
whom sample was taken in such manner as prescribed
under Rule 9B of Prevention of Food Adulteration Rules,
1955. Said Rule provides that the Local Authority shall,
within 10 days after institution of prosecution, forward a
copy of Analyst’s Report by registered post or by hand as
may be appropriate. In the instant case, instead of 10
days, there is a gap of about 19 days. The court held
that 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. This has not
been done in the case at hand by the appellant at all
and that being so, there is substantial compliance of
Section 13 and it would not render the entire
prosecution illegal. The revision was thus dismissed as
being devoid of merit. The High Court further cancelled
the bail bonds and surety bonds of the appellant and
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directed that he shall be arrested and lodged in jail to
serve out the sentence passed against him.
11. It is the contention of the Appellant that since he
denied receiving notice as contemplated under Section
13(2) of Prevention of Food Adulteration Act and in the
absence of any proof of postal receipt or
acknowledgement, mere statement of PW1 and PW2
that notice was sent by registered post would not suffice
to warrant conviction of the appellant. Sending of notice
under Section 13 (2) by registered post has to be proved
on record by documentary evidence which has not been
done in the instant case. Further the said notice should
have been sent within 10 days from the date of receipt of
report of public analyst whereas in the present case,
admittedly the notice was sent after 20 days. Moreover,
there is failure of compliance of mandatory provisions of
Rules 17 and 18 of Prevention of Food Adulteration
Rules, rendering the conviction recorded by courts
below unwarranted and unjustified.
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12. The respondent, on the other hand, aver that
Section 13 (2) of Prevention of Food Adulteration Act
and Rule 9A of Prevention of Food Adulteration Rules
use the expression “forward” and not “serve” or “deliver”;
thus the contention of the appellant that he was not
served with notice under Section 13 (2) merits no
consideration. Moreover, the Appellant could very well
have applied to the court to send one of the samples to
the Central Food Laboratory, but this has not been done
in the case at hand. Therefore, the appellant cannot
contend that there has been prejudice, merely because
of noncompliance or defective compliance of provisions
of law.
13. From the above narration, it is no doubt seen that
all the three Courts have held against the appellant and
have sentenced him accordingly. Though in that
circumstance, the reappreciation of evidence which led to
the conviction may not arise, this Court is certainly
required to examine as to whether the requirement
contemplated under the Act, 1954 and the Rules 1955
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has been complied with by the Authorities as per the
requirement in terms of the safeguard provided therein.
The primary contention of the learned counsel for the
appellant as noticed above is that in respect of the
sample said to have been collected on 16.10.1979, the
report was submitted by the Public Analyst, Pilakhuwa
on 15.11.1979 indicating that the milk sample was
deficient by 12 per cent in milk fat and 27 per cent in
nonfatty solids which were below the prescribed
standard and hence the sample was reported to be
adulterated. Pursuant to the such report the complaint
was filed before the learned Magistrate on 18.03.1980.
Subsequent thereto the copy of the report of the Analyst
is stated to have been despatched to the appellant on
07.04.1980. It is in that view, the contention has been
raised by the learned counsel for the appellant that the
same is in violation of the provision contained in Section
13(2) of the Act, 1954. In this regard, it is contended that
subsection (2) to Section 13 of the Act, 1954 provides
that the Authority on receiving the copy of the report of
the result of analysis and on institution of prosecution,
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forward a copy to the person and it would be open for
such person to make an application to the Court within a
period of 10 days from the date of the receipt of the copy
of the report to get the sample of the article kept by the
Local (Health) Authority analysed by the Central Food
Laboratory. In that regard, Rule 9B of Rules, 1955
provides that the Local (Health) Authority shall send the
report based on which the action is taken within 10 days
after institution of the prosecution. Such report is to be
sent by registered post or by hand to the person from
whom the sample of the article was taken by the Food
Inspector.
14. In the instant case, the contention put forth is that
firstly no such report of the Analyst has been made
available to the appellant and there is no proof of delivery
of the report. It is contended that even though the
prosecution had stated that the report was despatched
on 07.04.1980, keeping in view that the prosecution was
instituted by filing the application before the learned
Magistrate on 18.03.1980 the very alleged despatch of
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the report is beyond the period of 10 days as
contemplated in the Rule as stated above. On this aspect
the learned Magistrate, while rejecting the contention has
held that the report of the Public Analyst was sent to the
appellant by registered post on 07.04.1980 which is
within the period of 20 days and since such report was
sent within a reasonable time the appellant cannot be
said to have been prejudiced in any manner. It is further
observed that he was at liberty to move the Court for
sending a sample to the Director of Central Food
Laboratory, Calcutta for analysis but he did not exercise
his right in this respect. The learned Additional Sessions
Judge in his judgment while considering this aspect has
held that the Food Clerk, Shri Jaipal Singh (PW2) has
stated that the report of the Public Analyst was sent to
the appellant by registered post on 07.04.1980. On this
very aspect the learned Judge of the High Court has also
recorded that Shri Jaipal Singh (PW2) who is the clerk of
the Food Inspector (PW1) has proved the fact that the
Public Analyst’s report was sent to the appellant by
registered post on 07.04.1980. In that background, the
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High Court on referring to the provision contained in
Section 13(2) of the Act 1954 read with Rule 9B of the
Rules, 1955 has held that the purpose of Section 13(2) is
to enable the accused if he so desires, to make an
application to the Court for getting sample retested. The
learned Judge was swayed by the fact that the appellant
herein who was the accused has not made such
application at all and in that light the learned Judge has
arrived at the conclusion that there is substantial
compliance of Section 13 of the Act, 1954.
15. On this aspect of the matter, we take note that
while adverting to the provision in Section 13(2) requiring
to furnish the report of the Analyst to the accused as
contemplated therein the learned Judges of all the three
Courts have taken note of the evidence of PW2 Shri
Jaipal Singh, the Food Clerk who claimed to have
despatched the report by registered post on 07.04.1980.
The learned Judges have however failed to take note that
no evidence was brought on record to indicate that the
report which is claimed to have been despatched was
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actually served or delivered to the appellant. 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. In the
facts and circumstances of this case, since as already
noticed above the report of the Analyst has not in fact
been served on the appellant and the mere despatch of
the report as per the statement of PW2 was not
sufficient. If that be the position, the entire case of the
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prosecution which revolves around and is built upon the
report of the Analyst cannot be made the basis for
holding the appellant/accused guilty in the present case.
16. Further in the instant facts, it is noticed that the
very manner in which the prosecution has put forth its
case will disclose that the Food Inspector on 16.10.1979
found the appellant taking milk for sale and when licence
was demanded he did not possess the same. In that
background he had collected the sample of 660 ml. milk
and thereafter proceeded in the matter. In such
circumstance, it was at the outset required to establish
that the accused was regularly carrying on such business
and in that circumstance while inspecting had found
adulterated milk which was being sold by him to the
customers. No doubt the Food Inspector has examined
himself as PW1 and stated with regard to the incident,
the manner in which the sample was taken and that the
same was sent for analysis but has not been clearly spelt
out. In the instant facts, though it is contended on
behalf of the prosecution that as per the requirement
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under Section 10(7) of the Act, 1954 one Shri Radhey
Shyam, an independent person had also witnessed the
taking over of the sample, the said witness did not
support the case of the prosecution. Though the learned
Magistrate has in that circumstance held that it would
be sufficient to rely on the evidence of PW1 despite not
being supported by any other witness as PW1 has no
enmity with the accused, that by itself would not be
sufficient in the instant facts since the very requirement
of the provision is to collect the sample in the presence
of an independent witness and when such independent
witness has not supported the case of the prosecution.
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. This is more so in the
circumstance where milk which is a primary product has
fat content and the fat content would also depend on the
appropriate manner in which the sample is taken after
stirring. In this regard, it is apposite to take note of the
decision rendered by this Court in the case of K.
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Harikumar vs. Food Inspector, Punaloor Municipality
(1995) Supple 3 SCC 405 relied upon by the learned
counsel for the appellant, wherein while considering the
provisions of the Act, 1954 with regard to the sample of
curd which was the subject matter therein, it was held
that in order to attain homogeneity in curd, stirring and
churning may become necessary for the ingredients of
the milk solid nonfat and milk solid fat getting
consistency in order to determine the percentage in their
completeness.
17. In that background, in the instant case, as already
noticed the Public Analyst had opined that the milk
sample was deficient by 12 per cent in milk fat and 27
per cent in nonfatty solids. The said results would
become relevant only if it is established that the sample
taken for such analysis was also in a proper manner after
stirring which would make the fat and nonfat into
homogenous mixture. Hence, in that regard appropriate
evidence was necessary more particularly, when PW3
who was claimed to be an independent witness has not
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supported the prosecution. In the facts and
circumstances of the present case, in our view, the
uncorroborated testimony of PW1 – Food Inspector
cannot be relied upon to sustain the conviction.
18. Therefore, in that circumstance even if the other
aspects are not adverted to, the very fact that the
Analyst’s report being served not being proved and the
sample being taken in an appropriate manner not being
established, it would be sufficient to hold that the
prosecution has not proved the guilt of the appellant
beyond reasonable doubt and the conviction is not
justified. In that view, the judgments dated 02.06.1987,
01.11.1988 and 09.12.2014 passed respectively by the
Judicial Magistrate, Hapur, Ghaziabad, the Additional
Sessions Judge Ghaziabad and the High Court of
Allahabad are set aside and this appeal is allowed. The
appellant is acquitted of the charge under Section
7(1)/16(1)(a)(i) of Prevention of Food Adulteration Act.
19. Before parting we would like to place on record the
able assistance rendered by the learned counsel for the
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appellant who was appointed through Supreme Court
Legal Services Committee.
……………………….J.
(R. BANUMATHI)
……………………….J.
(A.S. BOPANNA)
New Delhi,
July 31, 2019