STATE OF ASSAM Vs. GALIRI SHANKAR AGARWALLA

JUDGEMENT

(1.) - The respondents were booked for trial under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, hereinafter the Act. The offence alleged against them was that they had sold adulterated Ajowan on 6-8-77 to the Food Inspector, P.W. 1. The Ajowan of which sample was taken by P.W. 1 was sent for chemical examination to the Public Analyst and the report of the Public Analyst disclosed that the sample did not conform to the standard. This view was given because as per the prescribed standard laid down in AO 5.23, the inorganic extraneous matter is not to exceed 2 % by weight whereas in the sample, the inorganic extraneous matter was found to be to the extent of 5.74%. The learned Trial Court, however, acquitted the accused persons because of the view taken by it that the extraneous foreign material found in the Ajowan must also be injurious to health. As there has been no evidence of this nature before it, the accused persons were acquitted.

(2.) Shri Singh, learned Additional Public Prosecutor, has urged that the law did not require the proof by the prosecution that in a case of the present nature the extraneous matter should be injurious to health. In this connection, my attention has been drawn to the definition of adulteration given in Section 2(ia)(m) of the Act which has defined adulteration as below 2 Definitions-In this Act unless the context otherwise requires, - (ia) adulterated-an article of food shall be deemed to be adulterated (m) if the quality or purity of the article fall below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability But which does not render it injurious to health; Of course this definition has a proviso anded to it in which has stated that if the samples fall below the prescribed standard, But where it is shown that the same had occurred due to natural cause or causes beyond the control of human agency, the article shall not be deemed to be adultered. It is urged by Shri Singh that in the present case there is no evidence to show that the standard of the sample had fallen below the prescribed standard due to natural cause or causes beyond the control of human agency. There is undoubtedly some force in the contention of the learned counsel. But then two defects which had occurred in the course of trial do not permit me to set aside the order of acquittal. The first defect is that there is no clinching material to hold that the requirement of Section 13(2) was satisfied in the present case. This Section read with Rule 9-A of the Rules as it stood at the relevant time requires that the local Authority shall immediately after the institution of the proceeding forward a copy of the report and the result by the Public Analyst by registered post or by hand to the person to whom the sample of article was taken. In the present case, the report of the Public Analyst was said to have been sent through post. To satisfy the Court in this regard a letter written by the office of the Local Health Authority was placed on record as Exhibit-9. But then there is nothing to show that this letter was delivered to the accused persons. I have come to this conclusion as the letter was not under registered post and no postal receipt or acknowledgement was brought on record. This being the position, it is contended by Sharma, appearing for the respondents; that the failure of the prosecution to abide by the mandate of Section 13(2) read with Rule 9-A vitiated the trial. To support him in this regard, Shri Sharma has referred to State of Assam v. Anukul Dey, in which it was held that service of a copy of the report of the Analyst on the accused after institution of the proceeding is mandatory and non-compliance with the same will vitiate the trial. As I am not satisfied on the Basis of the materials on record that the aforesaid requirement was complied with, it has to be held that the trial was vitiated. Shri Singh, however, contends in this connection that in the absence of any prejudice caused to the accused because of the violation of Rule 13(2), it cannot be held that the trial was vitiated. The learned counsel relied on Tulsi Ram v. State of Madhya Pradesh2. That case however has dealt with a situation where the report was received by the accused persons, though not within time. It was, therefore held that as after receiving the Public AnalystTs report the accused never sought to have the sample sent to the Central Food Laboratory, he cannot be heard to say that non-receipt of the report in time adversely affected him unless he is able to establish some other prejudice. In the present case the stand of the defence being that no report at all was received, Tulsi RamTs case cannot assist the prosecution. I am, therefore, satisfied that the trial in the present case was vitiated for the reason aforesaid.

(3.) Another defect mentioned by Shri Sharma is relating to perfunctory examination of the accused person under Section 313 Cr. P.C. In this connection, reference has been made to State of Assam v. Dhanpat3, wherein the position was more or less similar. In that case, the accused had not been asked when he was examined under Section 313 Cr. P.C. that the sample taken of Ajowan was meant for human consumption. Due to non putting of this question and due to failure to ask the TI accused persons what they have to say about Exhibits-i and 2 which were the notice for sale and receipt of the price paid, a Division Bench of this Court took the view that the trial was not in accordance with law. Of course in that decision the matter was remanded back and the trial Court was directed to re-try the case from the stage at which the prosecution was closed. In the present case also in the Section 313 Cr. P.C. examination, these questions were not put. Shri Singh therefore contends that the case may be sent for re-trial as was ordered in Dhanpat. I have not felt inclined to do so because of the first infirmity in the trial which had vitiated it.