Court No. - 34
Case :- CRIMINAL REVISION No. - 2119 of 1993
Revisionist :- Ramesh Chandra Chopara
Opposite Party :- A.G.A.
Counsel for Revisionist :- Y.K. Shukla,Arun Kumar Pandey,P.N.Mishra,Raghvendra Dwivedi
Counsel for Opposite Party :- A.G.A.
Hon'ble Sudhir Agarwal,J.
1. Hear Sri Y.K.Shukla, learned counsel for revisionist.
2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by the judgment and order dated 07.09.1991 passed by IInd Additional Chief Judicial Magistrate, Shahjahanpur in Case No.2380 of 1990 convicting Revisionist under Section 1/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”) and sentencing him to undergo one year imprisonment and a fine of Rs. 5000/- and for breach of Rule 50 of Food Adulteration Act under Section 7(3) and 16 of the Act, 1954 to undergo one month imprisonment with fine of Rs.500/-. Thereagainst, revisionist preferred Criminal Appeal No.40 of 1991 and Appellate Court while dismissing the appeal vide order dated 14.12.1993 upheld conviction of revisionist for breach of Rule 50 of Food Adulteration Act under Section 7(3) and 16 of Act, 1954 and maintaining sentence of one month rigorous imprisonment with fine of Rs.500/-. Appeallte Court further upheld conviction of revisionist unde Section 7/16 of Act, 1954 maintaining sentence of one year rigorous imprisonment with fine of Rs. 5,000/-. Being aggrieved the revisionist preferred present revision.
3. It is contended that there is no compliance of Section 13 (2) of Act, 1954, inasmuch as, report of Public Analyst was not supplied to accused- Revisionist and he specifically stated that no such report was received by him. Trial Court has illegally rejected the said plea on the ground that since report was sent by registered post there was sufficient compliance of Section 13 (2) of Act, 1954 and rest onus is upon the Revisionist to prove the same, though he did not receive the same, as it was for prosecution to prove service of report of Public Analyst upon accused.
4. I find that despatch of Public Analyst Report has been shown as a proper compliance of Section 13 (2) of Act, 1954 but there is nothing to show that the said report was actually acknowledged or received or served upon Revisionist. The issue of compliance of Section 13(2) has been decided by Courts below only on the ground that Revisionist did not apply for examination of food material by Central Food Laboratory and, therefore, cannot raise any grievance of non-compliance of Section 13(2) of Act, 1954.
5. Service of notice upon accused was necessary to be proved by Prosecution so as to prove compliance of Section 13(2) of Act, 1954. This is mandatory. This aspect has been considered by Supreme Court very recently in Vijendra Vs. State of U.P. and others (Criminal Appeal No. 1167 of 2019) (Arising out of S.L.P. (Criminal) No. 4314 of 2015) decided on 31.07.2019 and in para 15 of judgment, Court has said as under:
"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 PW-2 was not sufficient."
(emphasis added)
6. 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 because it is right of accused and prosecution must prove that not only report of Public Analyst was sent by registered post, but it was actually served upon accused- Revisionist, which has not been done in the case in hand.
7. In the result, this revision is allowed. Impugned judgments and orders dated 07.09.1991 and 14.12.1993 are hereby set aside.
8. Certify this judgment to the Lower Court immediately.
Order Date :- 26.9.2019 Ashish Pd.