SURAJ BALI Vs. STATE OF U P

JUDGEMENT

(1.) The applicants have been convicted under Section 7 (16 of the Prevention of Food Adulteration Act, -J sentenced to six months rigorous imprisonment and a fine of Rs. 1,090/- each, la default of payment of hue they are to undergo further three months rigorous im prisonment. Their conviction and sentence have been maintained in appeal by the Ses sions Judge. Hence this revision. The prosecution case is that on Decem ber 26, 1978 Food Inspector went to the shop of Ram Sewak at about 3. 15 p. m. His father Suraj Bali was present and was exhi biting for sale besides other items 10 kilo grams of Lahi oil. Having disclosed his identity the Food Inspector purchased 750 milliliters of: Lahi oil on payment of price. He divided the sample in three phials and sealed them in accordance with the proce dure prescribed by law. One of the sam ple phials was sent for analysis to the Pub lic Analyst. His report discloses that it was ad ulterated in as much as it contained 82 per cent of linseed oil. After obtaining sanc tion the applicants were prosecuted and have been convicted as above. The accused denied taking of the sam ple from their shop or from their possession. They produced one Muiku in defence. I have heard the learned counsel for the applicants. He has made a number of submissions which I will deal hereinafter. The first submission advanced is that Section 13 (2) of the Prevention of Food Adulteration Act has not been complied with in as much as no report of the Public Analyst nor the intimation as contemplated under Section 13 (2) of the said Act was served upon them. The prosecution in rebuttal of this sub mission has produced oral and documentary evidence. Oral evidence consists of the statement of Kam Kishan, P. W. 3, a clerk of the office of the Chief Medical Officer, Fatehpur. He has stated that he sent a copy of the report of the Public Analyst No. 35050 and a copy of the covering letter No. 6413-16 dated January 13, 1979 to both the. applicants. The dispatch register was brought before the court and these entries were duly verified. Both these documents are Exts. Ka-4 and Ka-8 which have been duly proved by him Apart from this Sri Ram Kishan has also filed two acknow ledgment due receipts pertaining to the above report and covering letter. One ac knowledgment receipt is No. 3368 dated November 3, 1979 and the other is No. 3396 of the same date. Both these receipts have been noted in the register concerned which had also been produced before that Court. Before entering into a discussion of these documents it would be pertenant to point out the legal position. Section 13 (2) of the Prevention of Food Adulteration Act runs as follows.- "on receipt of the report of the re sult of the analysis under sub-section (1) to the effect that the article of food is adul terated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particu lars have been disclosed under Section 14-A, forward, in such manner as may be pres cribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of the ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. " The manner prescribed has been laid down in Rule 9-A framed under the Pre vention of Food Adulteration Act which runs thus:- "the Local (Health) Authority shall immediately after the institution of prose cution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by re gistered post or by hand, as may be ap propriate, to the persons from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, ad dress and other, particulars have been disclosed under Section 14-A of the Act. " A reading of the aforesaid section coupled with the rule indicates that statutory duty which has been cast upon the Local Health Authority is to -forward the report and the intimation to the person from, whom the sample was taken either by registered post by hand. Neither the section nor the rule casts a burden upon the Local Health Authority to further prove that the report and the intimation so sent was delivered to the accused. This, however, does not mean that the report and the intimation can be sent to any ipse dixit irrespective of his correct name or address. If that is done then in law it can not DC a compliance of the afore said provisions. But if the report and in timation is suit at die correct address of the accused with the time when the sample is taken by the food Inspector and the man ner by which it is dispatched in under re gistered cover, in that case under Section 114 (f) of the Evidence Act a presumption of due service will arise in law. If the ac cused desired to rebut this presumption, the burden was upon him to lead evidence in support of his denial. In Ex. Ka-2 which is form -6 the name and address of the ap plicants has been given. The same name and address has also been given in Ex. Ka-1 which is the receipt evidencing the purchase of the sample of Lahi oil. The covering jitter (intimation Ex. Ka-8 which was sent to the applicants also gives the correct name and address of the accused. The clerk of the C. M. O. Sri Ram Kishan (P. W. 3) has also deposed that the letter were send to both the accused which is borne out from the entries in the register. This mass of documentary and oral evidence in my opi nion conclusively establishes that registered letters were forwarded by the Local Health Authority to the accused- applicants. Thus, to my mind, there has been complete com pliance of the provisions of Section 13 (2) of the Prevention of Food Adulteration Act. It is true that the accused have denied the receipt of the registered letters and for that purpose such criticism has been levell ed against the acknowledgment due receipts Exs. Ka-9 and Ka. 10. On the acknow ledgment due receipts addressed to Surajbali, there is a mention of the thumb mark of Surajbali. On the acknowledgment due receipt of Ram Sewak there is a note "ek kita tahrir paya. Nishani Angutha Ram Sewak". The argument raised on be half of the applicants' counsel is that it has not been proved that the thumb mark on the receipt Ex. Ka. 9 in, that of Suraj Bali, and the further argument is that there is no thumb mark at all on the other acknowledg ment due form. The appellate court has, however, compared the signature of Ram Sewak with the other documents on the re cord and has come to the conclusion that the letters were duly served upon the accus ed. The learned counsel has argued that the court below was not justified in adopt ing this procedure. I do not agree. It is not necessary for me to go further into this question, since I have already explained the legal position above that the duty which has been cast upon the Local Authority is to forward the report of the Public Analyst and the intimation to the person from whom the sample ii taken. That statutory duty has been discharged in the instant case as already held above. If it was intended by the Legislature that the prosecution should further produce evidence to prove the re ceipt of the intimation to the accused there was nothing to prevent it from saying so either in the Act or the Rmes. Further we cannot loose sight of the fact that a dis honest adulterator can always find ways and means to avoid receipt of intimation. It would thus be an impossible task for the prosecution to produce evidence on this score. It is for this reason that the Legis lature though it was not to incorporate this requirement also in Section 13 (2) of the Prevention of Food Adulteration Act. The next point which has been argued is that the sanction in the instant case is de fective. Reference has been made to Ext. Ka. 5 and Ka. 6. In Ext. Ka. 5 which is the forwarding letter of the Food Inspector to the Chief Medical Officer for grant of sanction the names of Suraj Bali, son of Chhotey and Ram Sewak, son of Suraj Bali have been mentioned at the top. The cor rect address. has also been given. In the body of Ext. Ka. 5 the Food Inspector has mentioned the shop of Ram Bail. The Fooci Inspector in his statement has explained that it was by mistake that he wrote Rani Bali instead of Ram Sewak. This explana tion is an acceptable one. However, I find that the endorsement made by the Chief Medical Officer, Fatehpuar on this letter Ext. Ka. 5 is "seen, sanction accorded separate ly" dated July 20, 1979. On the same date there is a separate order of sanction duly signed by the Chief Medical Officer. This sanction has been accorded for prose cution of Suraj Ball, son of Chhotey and Ram Sewak, son of Suraj Bali, owner of the shop. The Chief Medical Officer has mentioned in the order granting sanction that he has come to the conclusion that a prima facie case has been made out against both of them after having carefully studied the report and the papers enclosed there with. In my opinion, therefore, no illega lity has been committed in the order grant ing sanction and the authority concerned has fully applied his mind to the facts of the case before granting permission for prose cution. The last argument which has been ad vanced by the learned counsel for the ap plicants is chat Ram Sewak was not present on the sport and that no charge was framed against him in his capacity as the owner of the said shop. The prosecution case clear ly is that Ram Sewak was the owner of the shop and Suraj Bali his father sold the sam ple. This is clearly evidenced from the receipt Ext. Ka. 1 in which Ram Sewak has been mentioned as the owner of the shop. Even from Form 6 it is clear that two no tices were given to Suraj Bali one for him self and the other for Ram Sewak. In the charge the name of Suraj Bali and Ram Sewak have both has been mentioned. The charge is to the effect that they were found in possession and exhibiting for sale mus tard oil which was sold by Suraj Bali to the Food Inspector. In view of these circum stances it can not be said that the appli cants have in any way been prejudiced even if Ram Sewak has not been described as owner of the shop. A mere irregularity in the charge is curable and will not vitiate the trial unless prejudice is shown which does not exist in the present case. For the reasons given above I am of the opinion that the applicants have been rightly convicted and sentenced. This re vision application is, therefore, dismissed. The applicants are on bail. They shall be taken into custody forthwith to serve out the unexpired portion of the sentence of im prisonment. .