Mohd. Sadiq vs The Jammu Municipal Corporation
2023 Latest Caselaw 1652 j&K

HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU

CRR No. 95/2006
IA No. 78/2006

Reserved on: 6" June 2023
Pronounced on: 17" August 2023

Mohd. Sadiq. ...Petitioner(s)

Through :- Mr. Amrish Kapoor, Advocate.

v/S

The Jammu Municipal Corporation, = = ----_..... Respondent (s)

Through :- Mr. Pawan Dev Singh, Dy. AG.

SIC

CORAM: HON'BLE.:MR RAJESH SEKHRI, JUDGE.

1. Impugned in this p udgment dated 19.12.2006, passed

by learned 2" Addi ' 'Appellate Court), vide passed by learned Special Municipal Magistrate, Jammu, (the Trial Court), against the petitioner under

sections 7/16 of the Prevention of Food Adulteration Act, 1954 (the Act, for

short), has been upheld.

2. Before the grounds of challenge urged in the petition are

adverted to, it shall be apt to have an overview of the background facts.

3. The petitioner is a milk vendor. On 22.11.2002, the respondent, Food Inspector, along with his colleagues inspected his shop at Talab Khatikan Jammu, and collected the sample of 1500 gms of mixed milk,

against a payment of Rs. 15 as price of the sample. The sample was divided

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into three equal parts. After the requisite legal formalities, one of the samples in Form No. 7 was handed over in a sealed cover to the Public Analyst, Jammu, which after analysis, was found to be adulterated. The remaining two parts of samples with Form No. 7 were handed over to the Local (Health) Authority. Consequently, a complaint under Section 7 read with Section 16 of the Act, came to be lodged against the petitioner and it appears that after filing of the complaint, intimation letter envisaged under section 13(2) of the Act, was given to the petitioner, whereby he was notified about the report of the Public Analyst as also the sanction accorded for prosecution, through registered post on 22.12.2003. The respondent/ complainant in order to prove the accusations, besides himself, examined

Inspector Rehmat Ali. The petitioner was charged for the commission of

arrogated to him by stating

selling adulterated milk,

witnesses have made false statements against him. He did not produce any defense evidence. On conclusion of the trial, the petitioner was found guilty and was sentenced to undergo simple imprisonment for three months and pay fine of Rs. 500/- and in default to pay fine, further ordered to undergo

imprisonment of fifteen days.

4. Having heard the rival contentions, I have given my thoughtful consideration to the facts and circumstances attending the case as also the

law, which governs the field.

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5. Although petitioner has questioned the impugned judgment on multiple grounds, yet Mr. Amrish Kapoor, learned counsel appearing for the petitioner has confined his arguments primarily on the following three

grounds:

(i) that after the Amendment of the Act, in 1976, the Local (Health) Authority is obliged to forward a copy of the report of the result of the analysis, to the accused, thereby informing him that, if he so desires, he may make an application to the Court to get the sample of article of food, analyzed by the Central Food Laboratory, within a period of ten days from the date

of receipt® report, which prosecution has

b]

'rendering the entire o buttress, he has relied upon

Deboo reported as 1988 SCC

(ii) that there is no evidence on the record to establish that copy of Public Analyst report, purported to have been served by registered post, was received by the petitioner, as mere dispatch of document without proof of service was not sufficient. He has relied upon Food Inspector, Guntur vs Bavirisetty Hanumanth Rao

reported as 1993 SCC Online (AP) 252; and

(iii) that since report of the Public Analyst was not put to

the petitioner/accused during his examination under

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section 342 CrPC, therefore, it cannot be formed basis for conviction. He has relied upon State (Delhi Administration) vs Dharampaul reported as AIR 2001 SC 2924; and Basavaraj R. Patil & Ors vs State of Karnataka & Ors reported as AIR 2000

(SC) 3214.

6. Sections 8 to 13 of the Act deal with ANALYSIS OF FOOD. Section 11 of the Act lays down the procedure to be followed by the Food Inspector. The Food Inspector, except in special cases provided by rules under the Act, is bound to divide the sample so taken by him into three parts

under Section 11 (1) (b) and in terms of clause (c) (i) of sub section 1, he is

obliged to send one of the pa aid-sample to Public Analyst under

intimation to the Local (Hea ity and' under sub clause ii of clause c, it is enjoined upon the Food: to send the remaining two parts to

Local (Health) Authority for the:

ses of sub sections (2), (2A) and (2E) of Section 13. The P blic. A Section 13(1) of the Act, delivers his report, in such a manner"asma be prescribed, to the Local (Health)

Authority of the result of the analysis of any article of food submitted to

him.

7. Now, the entire controversy hovers around Section 13 (2) of the

Act, which reads thus:

"13 (2). 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 persons 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

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under section 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 ten 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."

8. If we take a stock of Section 13(2) of the Act, it is manifest that Local (Health) Authority, after the institution of prosecution against the persons, from whom sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under

Section 14, is obliged to forward, a copy of the report of the Public Analyst

received by him under sub-section etion 13 of the Act, to such person

or persons, as the. case may. manner as may be prescribed. In

addition to forwarding a copy port, the Local (Health) Authority

shall also inform, such person ons of his/their right to make an

: te the Court within a period py of the said report to get the sample of article of food, kept by the Local (Health) Authority, analyzed by the Central Food Laboratory. Be it noted that Section 13(2) of the Act contemplates not only forwarding of copy of report of the Public Analyst to the accused but also an intimation in writing that he may make an application before the Court for second analysis by the Central Food Laboratory. It confers a valuable right upon the accused for adopting recourse to appropriate defense. It is pertinent to underline that a certificate issued by the Director Food, of the Central Food Laboratory under sub

section 3 of Section 13, supersedes the report given by the Public Analyst

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under sub section 1. In other words, in case of conflict between the reports of the Public Analyst and Central Food Laboratory, it is the later which gets better off. A careful reading of Section 13 (2) of the Act would indicate that it intends to provide certain safeguards and rights to the accused. Therefore, Section 13(2) of the Act, commanding the Prosecuting Authority to forward a copy of the report of the Public Analyst to the accused, as also informing him to make an application to the Court within the stipulated period for getting the said sample kept by Local (Health) Authority analyzed by the Central Food Laboratory, after institution of the prosecution, is mandatory and non-observance thereof shall vitiate the trial. The following observation

of Hon'ble Supreme in Municipal Corporation Delhi vs Ghisa Ram

reported as AIR 1967 SCC 97

"Tt appears 'to us that when a valuable right i is confined by

Section 13 (2) of the Act 'on the vendor to have the sample

given to him analysed by the Director of the Central Food

Laborato: it is to. > be expected that the Prosecution will

the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his, satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts

contained therein."

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9. A similar view has been taken in State of Punjab vs Deboo

(supra), relevant excerpt whereof reads as below:

"Thus, in our considered view. both the requirements of section 13(2) of the Act i.e. the sending of the report of the Public Analyst and drawal of specific attention of the accused to his right, are mandatory and non-compliance of both or compliance of one and not the other, would in both events be fatal to the prosecution. So, this part of section 13(2) of the Act, we hold as mandatory non- compliance of which and in any event uptill the commencement of effective Court proceedings would _ vitiate the

proceedings.......

10. In view of the aforesaid position of law, the question which

arises for consideration, is, whether Local (Health) Authority in the present

case, has complied w ection 13(2) of the Act ice.

forwarding report of the ist to the petitioner/accused and

informing him of his right to n application to the Court within ten

days from the date gi t'the sample kept by the

Local (Health) Authori : .¢ ential Food Laboratory. It is contention of the petitioner that there is no evidence on the record to establish that copy of Public Analyst report purported to have been forwarded to him by registered post, was actually received by him. According to learned counsel for the petitioner, the conclusion drawn by learned Appellate Court that receipt placed on record by the prosecution showing dispatch of letter to the petitioner by registered post, was sufficient

compliance of Section 13 (2) of the Act and the presumption that document

in question had been received by the petitioner, is erroneous.

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11. A perusal of the file reveals that a copy of the report of the Public Analyst has been placed on record and a receipt indicating dispatch of the said report to the petitioner, is also part of the record to show that petitioner was informed of his right to make an application to the Court within the stipulated period, for getting the sample analyzed by the Central Food Laboratory. The question which begs consideration is whether mere dispatch of letter per se raises the presumption of service of said letter upon the

petitioner.

12. The language employed under section 13(2) of the Act is that report of Public Analyst shall be forwarded by the Local (Health) Authority

to the accused, in such manner as may be prescribed. Therefore, mere proof

of dispatch of the report::o nalyst, is not sufficient proof of

bd

service of notice upon the acs icularly when. service of said notice

is in question. The responden imess, should have taken immediate

steps to examine.the postal au to prove the actual delivery of the

prosecution to explain as to why same was not tendered in evidence. The prosecution, is obliged to satisfy Section 13(2) of the Act by actually serving a copy of the report of the Public Analyst on the accused. The prosecution could do so by examining the postal authority who delivered the registered letter to the petitioner by exhibiting the signature of the petitioner on the postal acknowledgment card, which as already stated, has not been placed on record. Therefore, learned Appellate Court was not correct in holding that there was presumption of receipt of copy of Public Analyst's Report by the

petitioner.

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13. I am supported in my view by Food Inspector, Guntur (supra)

14. The argument of learned counsel for the respondent that service of notice envisaged under Section 13(2) of the Act shall be deemed to be affected, by properly addressing and posting by registered post under Section 27 of the General Clauses Act, is also misconceived. Section 27 of the General Clauses Act provides that when a document is served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected, by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter

would be delivered, in the ordinary course of post. It is evident on careful

it, requires: §that a letter must be

perusal of this Secti n that

properly addressed, the post must be pre-paid and posting must

be proved. It.is only if these re

be drawn that it has een deli

business of the post off ?Fheep sting by registered post can only be proved by the concerned Postal Authority issuing the receipt of registered post. Back to the present case, neither prosecution has examined the Postal Authority to prove the postal receipt placed on record nor the acknowledgment has been placed on record to prove that notice was actually acknowledged by the petitioner, nor the postman has been examined to

prove that it was actually delivered upon the petitioner.

15. Be that as it may, there can be no presumption of service of notice in a criminal prosecution in which accused is liable to be convicted

and sentenced to jail. General Clauses Act cannot be attracted in a criminal

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prosecution, which entails conviction, imprisonment and fine. The prosecution, therefore, is bound to satisfy the requirement of Section 13(2) of the Act by actually serving a copy of report of Public Analysts on the accused. Since, prosecution, in the instant case, has failed to establish that notice envisaged under Section 13(2) of the Act was actually served upon the petitioner and acknowledged by him, therefore, prosecution has failed to comply with the requirements of Section 13(2) of the Act and it vitiates the

trial.

16. Further observation of learned Appellate Court that since neither accused pleaded before learned Trial Court, nor did he do so in his statement under section 342 CrPC, that his right under Section 13(2) of the Act has

been violated, therefore,,.:he owed to raise the said plea at the

Appellate Forum, is Iso fla is so because Section 13 (2) of the

Act is held to be mandatory . and, therefore, it is a question of

aised at any stage of the prosecution

prejudice and plea of prejudic

even at a later stage, b fore th

17. The petitioner has a SO as ground that since report of Public Analyst was not put to him during his examination under Section 342 of CrPC, therefore, he was deprived of his right to explain the incriminating evidence which was likely to be used

against him.

18. It is by far a crystalized position of law that attention of the accused should be drawn to every inculpatory circumstance appearing in the prosecution evidence, so as to enable him to explain it. This principle is

founded on the doctrine of Justice and Fair play. It is also trite that if

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incriminating or inculpatory evidence is not put to the accused during his examination under Section 342 CrPC, the Court must eschew such evidence from consideration. The record of the present case bears testimony to the fact that petitioner was not put to explain the Public Analyst report while he was examined under Section 342 CrPC. Section 342 CrPC is not an empty formality. The accused must be questioned separately about each incriminating circumstance appearing in the prosecution evidence, intended to be used against him. The object behind Section 342 CrPC is to provide fair and proper opportunity to the accused of explaining circumstances

which appear against him. This opportunity must be real and adequate.

Omission on the part of the prosecution to put inculpatory material to the

1976 SC 2140, while under mport of Section 342 of CrPC and

obligation of the Trial Court in th pect, has ruled as below:

"Section 342 of the Code of Criminal Procedure, 1898, casts

a duty on the Court to P at any enquiry or trial, questions

to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so amounts to a serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under Section

537 of the Code."

19. An identical view has been expressed in Basavaraj R. Patil

(supra).

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20. It is manifest from the aforequoted observation of Hon'ble Supreme Court that if incriminatory circumstance is not separately and distinctly put to the accused during his examination under Section 342 CrPC, it being a serious irregularity, vitiates the trial, if it is shown to have prejudiced the accused. In the instant case, since prosecution not only failed to prove service of the notice under section 13 (2) of the Act on the petitioner, but also its due acknowledgment by him, therefore, use of report of Public Analyst against the him without same being put to him during his examination, under Section 342 CrPC, and affording him a fair opportunity to explain such inculpatory material, certainly occasioned a prejudice to the

petitioner, which resulted in miscarriage of justice. Therefore, conviction

cannot be sustained on this count.

21. In the context of w been observed. and discussed above,

what comes to the fore is that, on 13(2) of the Act, Local (Health) Authority is not only obliged a copy of. 1e report of the Public Analyst to the accuse bu ir to make an application to the Court within the stipulated period for getting the same analyzed by the Central Food Laboratory, after institution of the prosecution and non- observance thereof, shall vitiate the trial. Mere dispatch of the report of Public Analyst, is not sufficient proof of service of notice upon the accused, particularly when service of said notice is in question. It is also held that General Clauses Act cannot be attracted in a criminal prosecution, which entails conviction and imprisonment and fine. The accused must be

questioned separately about each inculpatory circumstance appearing in the

prosecution evidence, which is intended to be used against him and omission

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on the part of the prosecution to do so on specific and material points, shall

vitiate the trial.

22. Having regard to the aforesaid, learned Appellate Court has fallen in grave error of law to uphold the conviction and sentence recorded by learned Trial Court. Hence, the present revision petition is allowed and the impugned judgment being illegal and perverse, is _ set-aside.

Consequently, petitioner is acquitted and is relived of his bail bonds.

23. Record of the Trial Court be returned with convenient dispatch.

24. Disposed of on the above terms.

(RAJESH SEKHRI)

a JUDGE Jammu: .

17.08.2023 "Hamid"

igment is Speaking? Yes lgment is Reportable? Yes

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