Court No. - 34
Case :- CRIMINAL REVISION No. - 456 of 1998
Revisionist :- Shahid
Opposite Party :- State Of U.P. And Others
Counsel for Revisionist :- M.C.Joshi,Ajai Kumar,Ajay Kumar Garg
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Vijay Kumar Rai, Advocate holding brief of Sri Ajay Kumar Garg, learned counsel for revisionist and learned A.G.A. for respondents.
2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by the judgments and orders dated 18.07.1994 and 09.02.1998. The First Additional Chief Judicial Magistrate, Moradabad vide order dated 18.07.1994 convicted revisionist and sentenced him to undergo six months rigorous imprisonment with fine of Rs. 1000/- under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”). Thereagainst, revisionist preferred Criminal Appeal No. 50 of 1994 and Appellate Court while dismissing appeal, confirmed order of conviction and sentence passed by Trial Court. Being aggrieved the revisionist preferred present revision.
3. It is contended that entire proceedings are vitiated in law as there is no compliance of Section 13(2) of Act, 1954 which is mandatory.
4. Revisionist has specifically pleaded that Public Analyst Report was not served upon him, therefore, there is no compliance of Section 13(2) but that has been rejected by Trial Court only on the ground that notice was sent by registered post and since address mentioned in registered letter was correct, therefore, compliance of Section 13(2) stands proved and no benefit can be claimed by accused.
5. Aforesaid finding is inconsistent with the law laid down by Supreme Court wherein it has been held that mere sending of notice by registered post is not sufficient but actual service and receipt upon accused has to be proved. 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. Trial Court, therefore, has wrongly held that there was compliance of Section 13(2) of Act, 1954. Further, I find that judgment of Lower Appellate Court is very cursory and nothing has been discussed.
7. In view thereof, revision is allowed. Impugned judgments and orders dated 18.07.1994 and 09.02.1998 are hereby set aside.
8. Certify this judgment to the lower Court immediately.
Order Date :- 27.9.2019 AK