KALWA Vs. STATE OF U P

JUDGEMENT

(1.) THE applicant has been convicted under section 7/16 of the Prevention of Food Adulteration Act and sentenced, to 6 months' RI, and a fine of Rs. 1000/-. His conviction and sentence have been maintained in appeal by the Sessions Judge, Bijnor. Hence this revision.

(2.) I have heard learned counsel for the applicant and have also perused the: impugned orders. I have carefully scrutinized the record of the case. Very briefly stated the prosecution story is that the Food Inspector purchased a sample of buffalo milk from the accused applicant on 31st October, 1977, at 9. 20 A. M. in Chhota Bazar Seohara. The applicant was then carrying 12 Kgs. of buffalo milk in a Can on his Cycle. The sample was taken in accordance with the procedure prescribed by law after payment of its price. One of the sample phials was sent for analysis to the Public Analyst, whose report disclosed that it was deficient in non-fatty solids by 17 per cent, judged from the standard of buffalo milk. After obtaining sanction, the applicant has been prosecuted and convicted as above.

(3.) READING section 13 (2) and Rule 9-A of the Act, together the inference seems to be inevitable that the duty which has been cast upon the local authority is to forward a copy of the report of the result of analysis along with an intimation, by registered post or by hand to the persons, from whom the sample has been taken. A letter, sent under registered post is presumed to have been received by the addressee. It is true that this presumption is hot irrebuttable but so far as the prosecution is concerned, the burden cast upon it under law would be deemed to have been discharged as soon as the report and the intimation are sent under registered cover. In the instant case, it appears that an Acknowledgment Due Form also accompanied the registered letter sent to the accused, but the A. D. form has not been received back. This is admitted by the clerk of the office of the Chief Medical Officer. The applicant's counsel has argued that, because the A. D. Form has not been returned back, therefore, this court should accept the. statement of the accused, made under section 313 CrPC, that he has not received the copy of the report and the intimation. In my opinion, it is not possible to come to this conclusion. There was nothing to prevent the legislature from incorporating in the rules, a further condition that the registered letter should be sent accompanied by an A. D. Form. This clearly indicates that the burden cast upon the prosecution would be discharged as soon as a letter under registered post is forwarded to the accused, of course correctly addressed, containing the report and the intimation. If the accused wishes to challenge this fact, it is open to him to lead evidence in rebuttal. It has not been done in the instant case. His mere statement under section 313 CrPC, is in my opinion not sufficient to disbelieve; the actual sending of the report and the intimation from the office of the C. M. O., as required under section 13 (2) of the P. F. Act. In the instant case, there is sufficient evidence on the record to come to the conclusion that the report and intimation were in fact, forwarded to the accused-applicant and it must, in the ordinary course, have been received by him. To repeat again, in the absence of any evidence to the contrary such an inference is not only justified on facts but also in law.