Court No. - 41
Case :- CRIMINAL REVISION No. - 2241 of 2000 Revisionist :- Raj Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Y.D. Sharma Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Sunita Agarwal,J.
None appears on behalf of the revisionist. Heard learned AGA for the State-respondent.
This revision is directed against the order dated 06.09.2000 passed by the First Additional District and Sessions Judge, Bulandshahar in Criminal Appeal No.13 of 1992 whereby the revisionist has been convicted of offence under Section 7/16 of Prevention of Food Adulteration Act' 1954. The allegations against the revisionist are of adulteration of milk based on the report of the Public Analyst wherein it is noted that the fat content in the sample of milk was found less than the standard.
From the records, it is evident that the sample was purchased from the dairy on 16.08.1982. It was sent to the Public Analyst and the report was received on 03.12.1982. On 07.01.1983, prosecution was launched and the conviction order dated 15.01.1992 was passed holding the revisionist guilty of adulteration of milk.
The revisionist took a categorical stand before the trial court that he was servant in the dairy wherefrom milk was purchased and the owner of the dairy was Sunder Goswami. He was, however, convicted of offence under Section 7/16 of the Act' 1992 on the premise that milk sample was purchased by him and he was a co-accused in the offence of adulteration of milk.
Further submission of the revisionist was that the statutory provision in taking sample of milk as contained in Section 10(7) read with Rules 17, 18 & 19 had not been followed. Moreover, therein is a clear violation of the mandatory provision of Section 13 (2) of the Act' 1954.
The court below had brushed aside these allegations with the finding that the sample was taken by the Food Inspector in a proper manner and the report submitted by him fortify the said fact.
As far as the violation of statutory provisions of Section 13 (2) of the Act is concerned, it was opined that the Public Analyst report was sent through registered post to the revisionist and the same was sufficient compliance of the said provision.
Learned AGA though defend the order but could not place anything more than the above noted by this Court.
As far as the plea of violation of Section 10(7) of the Act is concerned, it is recorded in the order of conviction that the Food Inspector in his oral examination deposed that the accused Raj Kumar had told him that the purchased milk was of Buffalo and the said fact was mentioned in his report. Further the Food Inspector report is supported by independent witnesses. However, there was no deliberation with regard to the manner in which sample was taken by the Food Inspector. 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 in 'milk fat' and '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. It is recorded that as per the public analyst report the milk sample was deficient in milk fat and 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.
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 16.08.1982 and was sent to the Public laboratory. The report of Public analyst was received on 03.12.1982. After 34 days 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 34 days 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 five 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 06.09.2000 passed by the First Additional District and Sessions Judge, Bulandshahar in Criminal Appeal No.13 of 1992 is hereby set aside.
The criminal revision is allowed.
The revisionist is acquitted of the charges under Section 7/16 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 :- 26.11.2019 Himanshu