VIJENDRA versus STATE OF UTTAR PRADESH on 31 July 2019

790

[2019] 10 S.C.R. 790

SUPREME COURT REPORTS

[2019] 10 S.C.R.

A

VIJENDRA

v.

STATE OF UTTAR PRADESH

(Criminal Appeal No. 1167 of 2019)

BJULY 31, 2019

[R. BANUMATHI AND A. S. BOPANNA, JJ.]

Prevention of Food Adulteration Act, 1954:

ss. 7(1)/16(1)(a)(i),10(7) and 13(2) – Notice by Food InspectorC(Complainant) suspecting adulteration in the milk – Sample of milkpurchased by complainant in the presence of public witness (PW3)– Sample sent to Public Analyst – Sample was found adulteratedby the Public Analyst – Complaint filed before Magistrate – Reportof the Public Analyst sent to the accused by registered post after 19days of filing the complaint – During trial PW3 turned hostile –DPlea of non- compliance of ss. 10(7) and 13(2) taken – TheMagistrate, the appellate Court as well as High Court convictedthe accused – Appeal to Supreme Court – Held: Safeguard u/s.13(2) is a valuable right – No evidence was brought on record toindicate that the report of the Public Analyst was actually served orEdelivered to the appellant – Despite the delay beyond 10 days fromthe date of initiation of prosecution, even if despatch of the reportis taken as substantial compliance, in absence of proof of deliveryof the report, the right of the accused to seek reference within theperiod of ten days stands defeated – The provision u/s. 13(2) hasto be construed strictly, as the accused is made to suffer penalFconsequences – Therefore, report of Public Analyst cannot be madebasis for holding the accused guilty – The uncorroborated testimonyof the complainant/Food Inspector (PW1) cannot be relied upon tosustain the conviction – Thus, the prosecution has not proved theguilt of the accused beyond reasonable doubt – Therefore,Gconviction is not justified – Prevention of Food Adulteration Rules,1955 – r. 9B.

Allowing the appeal, the Court

HELD : 1. While adverting to the provision in Section 13(2)of Prevention of Food Adulteration Act, 1954, requiring to furnishH

the report of the Analyst to the accused as contemplated therein,all the three Courts have taken note of the evidence of PW-2 theFood Clerk who claimed to have despatched the report byregistered post on 07.04.1980. They have, however, failed totake note that no evidence was brought on record to indicatethat the report which is claimed to have been despatched wasactually served or delivered to the appellant. The very purposeof furnishing such report is to enable the accused to seek forreference to the Central Food Laboratory for analysis if theaccused is dissatisfied with the report. Such safeguard providedto the accused under Section 13(2) of the Act is a valuable right.In that view even if the despatch of the report on 07.04.1980 istaken as substantial compliance though it is beyond the period of10 days from 18.03.1980 i.e., the date on which the prosecutionwas lodged, in the absence of there being proof of delivery of thereport to the accused; in the instant facts, the valuable rightavailable to the accused/appellant to seek for reference withinthe period of 10 days stands defeated. In that circumstance whenthe appellant/accused is made to suffer the penal consequences,it will have to be construed strictly. In the facts and circumstancesof the present case, since the report of the Analyst has not in factbeen served on the appellant and the mere despatch of the reportas per the statement of PW-2 was not sufficient. If that be theposition, the entire case of the prosecution which revolves aroundand is built upon the report of the Analyst cannot be made thebasis for holding the appellant/accused guilty in the present case.[Para 15] [798-B-G]

2. Though it is contended on behalf of the prosecution thatas per the requirement under Section 10(7) of the Act, 1954, anindependent person had also witnessed the taking over of thesample, the said witness did not support the case of theprosecution. Though the Magistrate has in that circumstanceheld that it would be sufficient to rely on the evidence of PW-1(Food Inspector) despite not being supported by any otherwitness as PW-1 has no enmity with the accused, that by itselfwould not be sufficient in the instant facts, since the veryrequirement of the provision is to collect the sample in thepresence of an independent witness. [Para 16] [799-B-D]

ABCDE

F

G

H

A3. The manner as to whether the sample was appropriatelytaken after properly stirring the milk and whether the same wassent for analysis also in such manner has, therefore, not beenestablished. This is more so in the circumstance where milkwhich is a primary product, has fat content and the fat contentwould also depend on the appropriate manner in which the sampleBis taken after stirring. In the instant case, the Public Analyst hadopined that the milk sample was deficient by 12 per cent in milkfat and 27 per cent in non-fatty solids. The said results wouldbecome relevant only if it is established that the sample takenfor such analysis was also in a proper manner after stirring whichCwould make the fat and non-fat into homogenous mixture. Hence,in that regard appropriate evidence was necessary moreparticularly, when PW-3 who was claimed to be an independentwitness has not supported the prosecution. In the facts andcircumstances of the present case, the uncorroborated testimony of PW-1 – Food Inspector cannot be relied upon to sustain theDconviction. [Paras 16 and 17] [799-D; E; G-H; 800-A]

K. Harikumar v. Food Inspector, Punaloor Municipality(1995) Suppl. 3 SCC 405 – relied on.

4. Therefore, even if the other aspects are not adverted Eto, the very fact that the Analyst’s report being served not beingproved and the sample being taken in an appropriate manner notbeing established, it would be sufficient to hold that theprosecution has not proved the guilt of the appellant beyondreasonable doubt and the conviction is not justified. The appellantis acquitted of the charge under Section 7(1)/16(1)(a)(i) ofFPrevention of Food Adulteration Act. [Para 18] [800-B-D]

Ram Lubhaya v. Municipal Corporation 1975 FAJ 253– referred to.

Case Law Reference

G1975 FAJ 253referred to.Para 8(1995) Suppl. 3 SCC 405relied on.Para 16

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1167 of 2019.

From the Judgment and Order dated 09.12.2014 of the High Courtof Judicature at Allahabad in Criminal Revision No. 1595 of 1988.

Ms. Richa Kapoor, Shivam Tyagi, Rohit Singh, Advs. for theAppellant.

Dhirendra Singh Parmar, Sarvesh Singh Baghel, Advs. for theRespondent.

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. Leave granted.

2. The instant appeal arises from the judgment passed by theHigh Court of Allahabad in Criminal Revision No. 1595 of 1988 in andby which the High Court dismissed the revision filed by the appellantthereby affirming the conviction of the appellant under Sec. 7(1)/16(1)(a)(i) of Prevention of Food Adulteration Act, 1954.

3. Sri R.C. Kansal, Food Inspector filed a complaint stating thaton 16.10.1979, at about 8:00 AM, while he was posted as Food Inspectorat Primary Health Centre Bhojpur, he found the appellant taking buffalomilk for sale on the Acchapalgarhi Road, Pilakhuwa, District Ghaziabad.On demanding license from Appellant, it was revealed that he did nothave any license for selling the milk. Suspecting adulteration in the milk,complainant prepared a notice Ex.6 and gave a copy to the appellant.After that, in the presence of public witness Radhey Shyam/PW-3, thecomplainant purchased 660 ml milk for 1 Rupee 65 paise and gave themoney to the appellant and took thumb impression of the witness. Thepurchased milk was divided equally and filled in 3 clean bottles. Thebottles were sealed in accordance with the rules and labels were pastedon them. Thumb impression of the Appellant was taken on the labelsposted on the bottles. One sample was sent to Public Analyst Lucknowon 17.10.1979. The rest of the 2 bottles were submitted before theoffice of Chief Medical Officer, Ghaziabad. The Public Analyst receivedthe sample on 18.10.1979, who prepared report Ex.No. 4 dated 15.11.1979with the finding that the sample of buffalo milk was deficient by 12% inmilk fat and 27% in non-fatty solids. The sample was thus found to beadultered.

A

B

C

D

EF

G

H

A

4. The complainant submitted an application along with relevantmaterial seeking consent for prosecution. The Chief Medical Officer/Sri. Y.K. Bhushan granted consent for prosecution under Section 7(1)/(16)(1)(a)(i) of Prevention of Food Adulteration Act vide order dated06.02.1980.

5. After that, the complainant prepared the complaint/Exhibit A-8and produced it before the court on 18.03.1980, whereupon the courttook cognizance and criminal case No. 787 of 1986 was registered.

B

6. The Public Analyst’s report was forwarded to the Appellant byregistered post on 07.04.1980.

C

7. The prosecution examined the complainant/R.C. Kansal as PW-1, Jaipal Singh/clerk in the office of Chief Medical Officer as PW-2 andRadhey Shyam, as PW-3. PW-2 stated in his statement that on07.04.1980, he sent the report of the Public Analyst to the Appellant byregistered post. PW-3, who is an independent witness, was declaredDhostile by the prosecution. The appellant, in his turn, pleaded not guilty.He however did not produce any evidence in defence.

8. Before the Trial Court, it was argued on behalf of the appellantthat the independent witness/PW-3 has not supported the case of theprosecution and there is non-compliance of Section 10 (7) of the FoodEAdulteration Act. Appellant further alleged non-compliance of provisionsof Section 13 (2) of the Food Adulteration Act. Regarding PW-3 beinghostile, the trial court opined that according to the complainant, samplehas been taken in the presence of independent witness. It has furtherobserved that the Supreme Court in the case of Ram Lubhaya vs.Municipal Corporation, 1975 FAJ page no. 253, held that it is not aFrule of law that guilt cannot be proved only on the evidence of FoodInspector. Regarding compliance of provisions of Sec. 13 (2) of Preventionof Food Adulteration Act, the court held that the compliance is clearfrom the statement of PW-2 that report of public analyst and letter ofChief Medical Officer has been sent to the address of the appellantGthrough registered receipt dated 07.04.1980. The court accordinglyconvicted the appellant and sentenced him to 6 months rigorousimprisonment and fine of Rs. 1000/- with default sentence.

9. Appeal filed by the Appellant was also dismissed with the findingthat the appellant has been rightly convicted by the trial court.

H

10. The appellant herein then filed Criminal Revision No. 1595 of1988 before the High Court contending that there was non-complianceof Section 10 (7) of Food Adulteration Act inasmuch as no independentwitness supported the prosecution case and of Section 13 (2) of theFood Adulteration Act inasmuch as the application was filed before theMagistrate on 18.03.1980, while the report of Public Analyst was senton 07.04.1980, i.e. with delay of almost 19 days. The High Court rejectedboth these objections raised by the Appellant, holding that as far as Section10 (7) is concerned, the objective of this section is to ensure actual orgenuine transaction of sale. The provision is mandatory to the extentthat the Food Inspector must make genuine efforts to get the corroborationof one or more persons present on the spot to witness his act of takingsample and completion of other formalities. Once such effort has beenmade, but in vain, it cannot be said that there is any non-compliance ofthis section. The High Court also relied on the decision of the apex courtin Shri Ram Lubhaya (Supra) wherein this court inter alia held that theobligation which Section 10 (7) casts on the Food Inspector is to ‘call’one or more persons to be present when he takes action. If none waswilling to cooperate, he cannot compel their presence. Regarding thesubmission that there is non-compliance of Section 13 (2) of the FoodAdulteration Act, the High Court noted that the requirement of this sectionis to send report after institution of prosecution against the person fromwhom sample was taken in such manner as prescribed under Rule 9Bof Prevention of Food Adulteration Rules, 1955. Said Rule provides thatthe Local Authority shall, within 10 days after institution of prosecution,forward a copy of Analyst’s Report by registered post or by hand asmay be appropriate. In the instant case, instead of 10 days, there is agap of about 19 days. The court held that the purpose of Section 13 (2)is to enable the accused, if he so desires, to make an application to thecourt for getting the sample re-tested. This has not been done in thecase at hand by the appellant at all and that being so, there is substantialcompliance of Section 13 and it would not render the entire prosecutionillegal. The revision was thus dismissed as being devoid of merit. TheHigh Court further cancelled the bail bonds and surety bonds of theappellant and directed that he shall be arrested and lodged in jail to serveout the sentence passed against him.

11. It is the contention of the Appellant that since he deniedreceiving notice as contemplated under Section 13(2) of Prevention of AB

C

DE

FG

AFood Adulteration Act and in the absence of any proof of postal receiptor acknowledgement, mere statement of PW-1 and PW-2 that noticewas sent by registered post would not suffice to warrant conviction ofthe appellant. Sending of notice under Section 13 (2) by registered posthas to be proved on record by documentary evidence which has notbeen done in the instant case. Further the said notice should have beenBsent within 10 days from the date of receipt of report of public analystwhereas in the present case, admittedly the notice was sent after 20days. Moreover, there is failure of compliance of mandatory provisionsof Rules 17 and 18 of Prevention of Food Adulteration Rules, renderingthe conviction recorded by courts below unwarranted and unjustified.

C

C

12. The respondent, on the other hand, aver that Section 13 (2)of Prevention of Food Adulteration Act and Rule 9A of Prevention ofFood Adulteration Rules use the expression “forward” and not “serve”or “deliver”; thus the contention of the appellant that he was not servedwith notice under Section 13 (2) merits no consideration. Moreover, theDAppellant could very well have applied to the court to send one of thesamples to the Central Food Laboratory, but this has not been done inthe case at hand. Therefore, the appellant cannot contend that therehas been prejudice, merely because of non-compliance or defectivecompliance of provisions of law.

E13. From the above narration, it is no doubt seen that all the threeCourts have held against the appellant and have sentenced himaccordingly. Though in that circumstance, the reappreciation of evidencewhich led to the conviction may not arise, this Court is certainly requiredto examine as to whether the requirement contemplated under the Act,1954 and the Rules 1955 has been complied with by the Authorities asFper the requirement in terms of the safeguard provided therein. Theprimary contention of the learned counsel for the appellant as noticedabove is that in respect of the sample said to have been collected on16.10.1979, the report was submitted by the Public Analyst, Pilakhuwaon 15.11.1979 indicating that the milk sample was deficient by 12 perGcent in milk fat and 27 per cent in non-fatty solids which were below theprescribed standard and hence the sample was reported to be adulterated.Pursuant to the such report the complaint was filed before the learnedMagistrate on 18.03.1980. Subsequent thereto the copy of the report ofthe Analyst is stated to have been despatched to the appellant on07.04.1980. It is in that view, the contention has been raised by theH

learned counsel for the appellant that the same is in violation of theprovision contained in Section 13(2) of the Act, 1954. In this regard, it iscontended that sub-section (2) to Section 13 of the Act, 1954 providesthat the Authority on receiving the copy of the report of the result ofanalysis and on institution of prosecution, forward a copy to the personand it would be open for such person to make an application to the Courtwithin a period of 10 days from the date of the receipt of the copy of thereport to get the sample of the article kept by the Local (Health) Authorityanalysed by the Central Food Laboratory. In that regard, Rule 9B ofRules, 1955 provides that the Local (Health) Authority shall send thereport based on which the action is taken within 10 days after institutionof the prosecution. Such report is to be sent by registered post or byhand to the person from whom the sample of the article was taken bythe Food Inspector.

14. In the instant case, the contention put forth is that firstly nosuch report of the Analyst has been made available to the appellant andthere is no proof of delivery of the report. It is contended that eventhough the prosecution had stated that the report was despatched on07.04.1980, keeping in view that the prosecution was instituted by filingthe application before the learned Magistrate on 18.03.1980 the veryalleged despatch of the report is beyond the period of 10 days ascontemplated in the Rule as stated above. On this aspect the learnedMagistrate, while rejecting the contention has held that the report of thePublic Analyst was sent to the appellant by registered post on 07.04.1980which is within the period of 20 days and since such report was sentwithin a reasonable time the appellant cannot be said to have beenprejudiced in any manner. It is further observed that he was at liberty tomove the Court for sending a sample to the Director of Central FoodLaboratory, Calcutta for analysis but he did not exercise his right in thisrespect. The learned Additional Sessions Judge in his judgment whileconsidering this aspect has held that the Food Clerk, Shri Jaipal Singh(PW-2) has stated that the report of the Public Analyst was sent to theappellant by registered post on 07.04.1980. On this very aspect thelearned Judge of the High Court has also recorded that Shri Jaipal Singh(PW-2) who is the clerk of the Food Inspector (PW-1) has proved thefact that the Public Analyst’s report was sent to the appellant by registeredpost on 07.04.1980. In that background, the High Court on referring tothe provision contained in Section 13(2) of the Act 1954 read with Rule AB

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A9B of the Rules, 1955 has held that the purpose of Section 13(2) is toenable the accused if he so desires, to make an application to the Courtfor getting sample retested. The learned Judge was swayed by the factthat the appellant herein who was the accused has not made suchapplication at all and in that light the learned Judge has arrived at theconclusion that there is substantial compliance of Section 13 of the Act,B1954.

15. On this aspect of the matter, we take note that while advertingto the provision in Section 13(2) requiring to furnish the report of theAnalyst to the accused as contemplated therein the learned Judges of allthe three Courts have taken note of the evidence of PW-2 Shri JaipalCSingh, the Food Clerk who claimed to have despatched the report byregistered post on 07.04.1980. The learned Judges have however failedto take note that no evidence was brought on record to indicate that thereport which is claimed to have been despatched was actually served ordelivered to the appellant. The very purpose of furnishing such report isDto enable the accused to seek for reference to the Central Food Laboratoryfor analysis if the accused is dissatisfied with the report. Such safeguardprovided to the accused under Section 13(2) of the Act is a valuableright. In that view even if the despatch of the report on 07.04.1980 istaken as substantial compliance though it is beyond the period of 10 daysfrom 18.03.1980 i.e., the date on which the prosecution was lodged, inEthe absence of there being proof of delivery of the report to the accused;in the instant facts the valuable right available to the accused/appellantto seek for reference within the period of 10 days stands defeated. Inthat circumstance when the appellant/accused is made to suffer thepenal consequences, it will have to be construed strictly. In the facts andFcircumstances of this case, since as already noticed above the report ofthe Analyst has not in fact been served on the appellant and the meredespatch of the report as per the statement of PW-2 was not sufficient.If that be the position, the entire case of the prosecution which revolvesaround and is built upon the report of the Analyst cannot be made thebasis for holding the appellant/accused guilty in the present case.G

16. Further in the instant facts, it is noticed that the very mannerin which the prosecution has put forth its case will disclose that the FoodInspector on 16.10.1979 found the appellant taking milk for sale andwhen licence was demanded he did not possess the same. In thatbackground he had collected the sample of 660 ml. milk and thereafterH

proceeded in the matter. In such circumstance, it was at the outsetrequired to establish that the accused was regularly carrying on suchbusiness and in that circumstance while inspecting had found adulteratedmilk which was being sold by him to the customers. No doubt the FoodInspector has examined himself as PW-1 and stated with regard to theincident, the manner in which the sample was taken and that the samewas sent for analysis but has not been clearly spelt out. In the instantfacts, though it is contended on behalf of the prosecution that as per therequirement under Section 10(7) of the Act, 1954 one Shri Radhey Shyam,an independent person had also witnessed the taking over of the sample,the said witness did not support the case of the prosecution. Thoughthe learned Magistrate has in that circumstance held that it would besufficient to rely on the evidence of PW-1 despite not being supportedby any other witness as PW-1 has no enmity with the accused, that byitself would not be sufficient in the instant facts since the veryrequirement of the provision is to collect the sample in the presence ofan independent witness and when such independent witness has notsupported the case of the prosecution. The manner as to whether thesample was appropriately taken after properly stirring the milk andwhether the same was sent for analysis also in such manner has, therefore,not been established. This is more so in the circumstance where milkwhich is a primary product has fat content and the fat content wouldalso depend on the appropriate manner in which the sample is takenafter stirring. In this regard, it is apposite to take note of the decisionrendered by this Court in the case of K. Harikumar vs. Food Inspector,Punaloor Municipality (1995) Supple 3 SCC 405 relied upon by thelearned counsel for the appellant, wherein while considering the provisionsof the Act, 1954 with regard to the sample of curd which was the subjectmatter therein, it was held that in order to attain homogeneity in curd,stirring and churning may become necessary for the ingredients of themilk solid non-fat and milk solid fat getting consistency in order todetermine the percentage in their completeness.

17. In that background, in the instant case, as already noticed thePublic Analyst had opined that the milk sample was deficient by 12 percent in milk fat and 27 per cent in non-fatty solids. The said resultswould become relevant only if it is established that the sample taken forsuch analysis was also in a proper manner after stirring which wouldmake the fat and non-fat into homogenous mixture. Hence, in that regard AB

C

DE

F

G

H

Aappropriate evidence was necessary more particularly, when PW-3 whowas claimed to be an independent witness has not supported theprosecution. In the facts and circumstances of the present case, in ourview, the uncorroborated testimony of PW-1 – Food Inspector cannotbe relied upon to sustain the conviction.

B18. Therefore, in that circumstance even if the other aspects arenot adverted to, the very fact that the Analyst’s report being served notbeing proved and the sample being taken in an appropriate manner notbeing established, it would be sufficient to hold that the prosecution hasnot proved the guilt of the appellant beyond reasonable doubt and theconviction is not justified. In that view, the judgments dated 02.06.1987,C01.11.1988 and 09.12.2014 passed respectively by the Judicial Magistrate,Hapur, Ghaziabad, the Additional Sessions Judge Ghaziabad and the HighCourt of Allahabad are set aside and this appeal is allowed. The appellantis acquitted of the charge under Section 7(1)/16(1)(a)(i) of Preventionof Food Adulteration Act.

D