PRAMOD KUMAR Vs. STATE

JUDGEMENT

(1.) The applicant is a dealer in condiments in the town of Hardwar. The Food Inspector took samples of Ajwain from his shop in the prescribed manner on 31st December, 1977. One of the samples was sent for analysis to the public Analyst who reported that the same contained 7. 7% of organic matter as against the prescribed limit of 3%. He also found that it contained 3. 2% of inorganic matter as against the prescribed limit of 2%. The Food Inspector presented the matter for the sanction of the Public Health Authority. The said authority purports to have sanctioned the prosecution of the applicant. A notice under Section 13 (2) of the Prevention of Food Adulteration Act, 1954 hereinafter referred to as 'the Act' was served on the applicant on July 19, 1978. The Munsif Magistrate before whom the complaint had been filed, took cognizace of the case on September 22, 1978 and issued notice against the applicant summoning him to answer the charge under Section 7/16 of the Act. There is no dispute between the parties in so far as these facts are concerned. The trial Magistrate found the applicant guilty of the offence charged. He accordingly convicted him for the offence punishable under Section 7/16 of the Act and sentences him R. I. for a period of one year and to pay a fine of Rs. 2. 000/ -. The usual default was super-added to the order recording conviction. Aggrieved by the said order, the applicant preferred an appeal. The said appeal has been disposed of by the Second Additional District and Sessions Judge, Saharanpur, by his judgment and order dated April 5,1980. The Sessions Judge has maintained the conviction of the applicant but has reduced the sentence recorded against the applicant from one year to six months. He has further reduced the fine imposed on the applicant from Rs. 2,000/- to Rs. 1,000/ -. In default of payment of fine, the applicant has been ordered to undergo R. I. for a period of three months. The applicant has now come up in revision to this Court. Learned counsel appearing for the applicant contended before me that the prosecution of the applicant under Section 7/16 of the Act is vitiated by the non-compliance with the provisions of law contained in sub-section (2) of Section 13 of the Act. In support of this argument, learned counsel has contended that the prosecution against the applicant was actually instituted on September 22, 1978 and not on June 30, 1978 as held by the Court of appeal. In the alternative, he submitted that even though the complaint may have been filed by the Food Inspector on June 20, 1978 the prosecution against the applicant will be deemed to have been instituted on the date on which cognizance of the case was actually taken by the trial Magistrate. He submitted that in either view of the matter the local Health Authority served the applicant with a notice under sub-section (2) of Section 13 on July 19, 1978 which was a date anterior to the date of the institution of the prosecution and, as such, the entire proceedings against the applicant culminating in his conviction are vitiated by non-compliance with the mandatory provisions of law contained in sub-section (2) of Section 13 of the Act. So far as the first limb of the argument of the learned counsel is concerned, it may be stated that the applicants' own witness K. C. Srivastava, who was the concerned Ahlemad in the Court of the Munsif Magistrate, before whom the case was pending, admitted in his cross-examination that he received the complaint from the Health Inspector on June 20, 1978 and signed the register of the said Inspector in token of the receipt of the complaint. This witness was not declared hostile and was not cross-examined by the applicant. His statement is, therefore, binding on the applicant. The two Courts below were, therefore, right in coming to the conclusion that the complaint had been received in the Court of the Magistrate concerned on June 20, 1978. The finding recorded by the said Courts on this point is a finding of fact which cannot be called in question in the revisional jurisdiction of this Court. Coming to the second limb of the argument of the learned counsel, it has to be conceded that the information referred to in sub-section (2) of Section 13 has to be conveyed to the person accused of having committed an offence under the Act only after the institution of the prosecution. It is well settled that the provisions contained in sub-section (2) of Section 13 are of a mandatory nature and must be strictly complied with. A non-compliance with the said provision of law is likely to cause prejudice to a person accused for an offence under the Act. It is not in dispute that necessary information referred to in sub-section (2) of Section 13 of the Act was conveyed to the applicant by the Health Authority and that he received the said information on July 19, 1978. Learned counsel, has, however, contended that no prosecution had been instituted against the applicant until 19th of July, 1978 and the information conveyed to the applicant was premature and was not in accordance with the requirements of law contained in sub-section (2) of Section 13 of the Act. The question which, therefore, falls for determination is as to on what date a prosecution under the Act can be said to have been instituted against a person charged of having committed an offence there under. The counsel appearing for the applicant contended that the said date can only be the date on which cognizance of the offence is taken by the Magistrate. On the other hand, the learned Deputy Government Advocate had said that a proceeding can be said to have been instituted the moment a complaint is filed before a competent Court in accordance with the provisions of the Act. The question which has to be answered is as to which of the two rival contentions is correct. In support of its contention, learned counsel for the applicant relied in Net Ram v. State (1968 ACC 227. ). In the said case B. D. Gupta, J. , observed J- ''under the provisions contained in Section 13 of the Act, the right conferred on the applicant can be exercised only after the institution of a prosecution under the Act. I understand this to mean that until the Court takes cognizance of the offenceand the accused against whom cognizance is taken has information of the fact no question of exercising the right under Section 13 arises". The observations of a single Judge of this Court cited above to appear to lend support to the contention urged on behalf of the applicant. It may, however, be stated that since the decision in Net Ram's case (supra) was rendered, the law has been amended by the Act 34 of 1976 which came into effect on 1-4-1976. Even otherwise the said case is distinguishable on facts. In my opinion, there is a clear distinction between the institution of a prosecution and taking cognizance on the basis of prosecution instituted before a Court. Sub-section (1) of Section 20 of the Act is relevant in this connection and it is quoted below: - " No prosecution for an offence in this Act not being an offence under Section 14 or Section 14-A shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorized in this behalf by general or special order by the Central Government or the State Government: Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the public Analyst along with the complaint. It is clear from the provision of law enacted in sub-section (1) of Section 20 that it speaks of an institution of the prosecution. It specifies the persons who may institute a prosecution under the Act and the conditions subject to which such prosecution can be instituted, Sub-section (1) of Section 20 does not speak of taking cognizance of an offence under the Act. The expression "institution of a prosecution" has not been defined in the Act itself. The different parts of the Act have, therefore, to be read harmoniously and the expression used at one place is to be construed in the same manner in which it is used in another place, unless there are compelling reasons for departing from this line of construction. I therefore, hold that the prosecution against the applicant will be deemed to have been instituted on the date on which the complaint was presented in the Court of the Magistrate. Learned counsel also challenged the validity of the sanction accorded by the public Health Authority. He also contended that the charge framed against the applicant was vague. These points were, however, not urged before the Courts below and there is no reference to that in the memorandum of revision either. I am, therefore not inclined to go into the said question urged for the first time during the course of the argument. Now coming to the question of sentence, it has to be noticed that Ajwain is primary food as defined in Section 2 (xii-a) of the Act. The adulteration found by the public Analyst in the samples taken from the applicant's shop cannot be said to be excessive. There is no evidence of previous conviction against the applicant. The ends of justice would be met if the sentence awarded to the applicant is reduced. The result is that this revision fails and is hereby dismissed. The order of the Court of appeal is maintained subject to the modification that the applicant shall undergo R. I. for a period of three months and shall pay a fine of Rs. 5000/- instead of the sentence of six months and the fine of Rs. 1000/- imposed upon him by the Court of appeal. In case the applicant fails to deposit the amount imposed upon him within two months from today, he shall undergo further R. I. for a period of two months. .