Court No. - 34
Case :- CRIMINAL REVISION No. - 1263 of 1988 Revisionist :- Sikandar Ali Opposite Party :- State Of U.P.
Counsel for Revisionist :- N.K. Rastogi,S.M. Chaturvedi,S.M.Khan Counsel for Opposite Party :- A.G.A.
Hon'ble Sudhir Agarwal,J.
1. Heard learned counsel for revisionist and learned A.G.A. for State.
2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by the judgments and orders dated 21.12.1987 and 17.08.1988. The Judicial Magistrate, Rampur vide order dated 21.12.1987 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. 2 of 1988 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 there is no compliance of Section 13(2) of Act, 1954 inasmuch as both the Courts below only on the basis that Public Analysis Report was sent by registered post, have deemed it to be a sufficient compliance of Section 13(2) though law is that unless evidence is produced to show acknowledgment of receipt by vendor, it cannot be said that there is compliance of Section 13(2) of Act, 1954 and mere evidence of dispatch of notice is not sufficient. Reliance is placed on a decision of this Court in Criminal Revision No. 254 of 1990 (Jugul Kishore vs. State of U.P.), decided on 12.10.2018 wherein Court said as under:
“20. The principles discerned from the said authority, that in turn, is based on a decision of their Lordships of the Supreme Court and a Full Bench decision of the Punjab And Haryana High Court, clearly are to the effect that mere evidence of dispatch of notice under Section 13(2) of the Act, along with a copy of public analyst's report by the prosecution is not enough compliance, unless there is evidence produced to show acknowledgment of receipt, also. This, of course, would not apply to a case where service is admitted to the accused.
22. The requirement of Section 13(2) of the Act read with rule 9-B (or under the pre amended law rule 9-A) is not about dispatch of notice under Section 13(2) along with a copy of the public analyst's report but service or delivery of such notice and report that would constitute compliance with the mandatory requirement of Section 13(2) as held in Bidyadhar Jena (supra). The requirement about proving service, not just dispatch under the Act, would exclude the applicablity of the general law about good service, based on a presumption under Section 27 General Clauses Act and section 114 Evidence Act. The prosecution have to prove the fact of service by producing evidence aliunde, not just the dispatch of notice, in order to be in accord with Section 13(2). In the present case, admittedly, no acknowledgment card or other evidence, such as, a certificate of delivery of the registered postal cover by the postal department has been placed on record, which in the opinion of this Court would fall foul of the requirement of Section 13(2) of the Act read with the relevant rule in force, at the relevant time. Thus, in the opinion of this court there is no good compliance of Section 13(2) of the Act, for the prosecution's failure to establish service of notice along with a copy of report of public analyst upon the Revisionist envisaged under Section 13(2) of the Act.”
4. Learned A.G.A. appearing for State could not dispute the aforesaid exposition of law.
5. In view thereof, since requirement of Section 13(2) of Act, 1954 is mandatory and its compliance has not been made in the present case, the otherwise findings recorded by Courts below cannot be sustained.
6. In the result, revision is allowed. Impugned judgments dated 21.12.1987 and 17.08.1988 are hereby set aside.
7. Certify this judgment to the lower Court immediately.
Order Date :- 31.7.2019 AK