HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Revision No.777 of 2001 (Old No.1203 of 1997) Umesh Chandra Joshi, S/o Tara Dutt R/o Dhung Sil, Patti Pandegaon, P.S. Bhimtal, District Nainital. ……… Revisionist Versus State of Uttarakhand ……… Respondent Sri L.K. Tiwari, learned counsel for the revisionist. Sri Harish Pujari, learned Addl. GA for State/respondent. Dated: June 26, 2008 Hon’ble Dharam Veer, J. This criminal revision preferred, under section 397/401 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) is directed against the judgment and order dated 20.07.1995 passed by Chief Judicial Magistrate, Nainital in Criminal Case No.233/1993, State Vs. Umesh Chandra Joshi, whereby the Chief Judicial Magistrate has convicted the revisionist-accused under Section 7/16 of The Prevention of Food Adulteration Act, 1954 (hereinafter to be refereed as an Act) read with Rule-44-A and sentenced him to undergo 2 years’ R.I. with fine of Rs.2,000/-. In default of payment of fine further six months’ simple imprisonment was awarded to the revisionist-accused and against the judgment and order dated 08.09.1997 passed by II Addl. Sessions Judge, Nainital, in Criminal Appeal No.20 of 1995, Umesh Chandra Joshi Vs. State of U.P. whereby the appeal of the revisionist-accused was partly allowed and the conviction of the revisionist-accused was upheld but the sentence of 2 years’ R.I. was reduced to six months’ R.I. and the fine of Rs.2,000/- imposed by the trial court against the revisionist-accused is confirmed. 2 2. I have heard Sri L.K. Tewari, learned counsel for the revisionist and Sri Harish Pujari, learned Addl. Govt. Advocate for the State and perused the record of the case. 3. Brief facts of the case are that on 14.01.1993 at 12:00 noon PW-1 Sri B.S. Bisht, Food Inspector, inspected the shop of the revisionist-accused situated at Tallital-Bhimtal, P.S. Bhimtal, District Nainital, after introducing himself. He found the revisionist-accused selling pulses, spices, flour and rice etc. After giving notice Ext.Ka-1 he purchased 750 grams of pulse of Chana at a price of Rs.9/-. He distributed the sample into three equal parts and packed in a clean and dry polythene leak proof bags. Thereafter, he sealed them and fixed seal mohar over it. He got the thumb impressions of revisionist-accused and made an inspection note. The inspection note was read over to the revisionist-accused and the witnesses. Their signatures were taken over it. The sample was sent to Public Analyst, Lucknow for chemical examination. As per the report of the public analyst dated 24.02.1993 Ext.Ka.9, the sample was found adulterated on account of mixing 0.83% Khesari gram, which was prohibited as food grain. The copy of the report was sent to the revisionist-accused. The revisionist- accused applied in the court for sending the sample to Central Food Laboratory, Calcutta. According to its report Ext.Ka.14, the sample was found adultered and it was found 2.5% mixing Khesari gram. After taking the sanction Ext. Ka-11 of the Chief Medical Officer, Nainital, the compliant Ext. Ka-12 was filed before the Chief Judicial Magistrate, Nainital. 4. Thereafter, the charge was framed against the revisionist-accused under Section 7/16 read with Rule 44-A of the Act and Rules. Charge was read over and explained to the accused-revisionist who pleaded not guilty and claimed to be tried. 3 5. Thereafter, evidence of Sri B.S. Bisht, Food Inspector was recorded, who has supported the averments made in the complaint. The evidence of PW-2 Sri Harish Chandra Sahi, Sanitary Supervisor was recorded who has supported the prosecution case. Evidence of PW-3 Sri Govind Singh Rautela, was recorded, who has also supported the prosecution case. Similarly evidence of PW-4 D.S. Negi, Food Clerk, C.M.O. office was recorded who has also supported the prosecution case. He has proved the sanction granted by the C.M.O., i.e. Ext.Ka.11 and also dispatched the report of the Public Analyst, Lucknow, i.e. Ext.Ka-9 to the accued-revisionist. 6. In support of the complaint, the Sanction for filing complaint by Chief Medical Officer Ext. Ka-11, Form VI issued by Public Health Department, Nainital Ext. Ka-1, Receipt of purchase of 750 grams Chana pulse by Food Inspector Ext. Ka- 3, Label Form of Public Health Department, Nainital Ext. Ka- 2, Report of the Public Analyst, Lucknow dated 24.02.1993 Ext. Ka-9, Sample sent through Form VII dated 14.01.1993 Ext. Ka-5, Inspection Note of Food Inspector dated 14.01.1993 Ext. Ka-4, Registry receipt dated 15.01.1993 Ext. Ka-6, Sample seal dated 17.03.1993 Ext. Ka-7 and Report of Director, Central Food Laboratory, Calcutta dated 25.06.1993 Ext. Ka-14, notice sent u/s 13 (2) of the Act Ext. Ka-13 and Postal receipt Ext. Ka- 15, have been annexed. 7. Thereafter, the statement of the revisionist-accused was recorded u/s 313 Cr.P.C. who has denied the allegations made against him, but he admitted that two different samples were taken from his shop on 04.01.1993 and 14.01.1993 in two different dates. 8. Sri L.K. Tewari, learned counsel for the revisionist argued that Ext. Ka-9 is the report of Public Analyst, Lucknow relating to the sample taken by the Food Inspector on 4 14.01.1993 as stated by PW-1 Sri B.S. Bisht, Food Inspector which is also mentioned in the complaint Ext. Ka-12 filed by the complainant before the trial court. He has further submitted that when the accused-revisionist received the report Ext.Ka-9 of the Public Analyst then he applied as require under Sub Section (2) of Section 13 of the Act before the court. Then, the court passed an order for sending a sample to the Central Food, Laboratory, Calcutta. The Director, Central Food Laboratory Calcutta submitted a report Ext.Ka-14. In that report it was mentioned that the Laboratory has tested the sample taken on 04.1.1993. On the basis of this report, learned counsel for the revisionist has submitted that as the Section 13(2) is the mandatory section in the Act and that was not complied with, hence the revisionist-accused is entitled for benefit of doubt. He has further submitted that in Sub Section (3) of Section 13 of the Act it is provided that the certificate issued by the Director of the Central Food Laboratory [(under sub section (2B)] shall supersede the report given by the public analyst under sub-section (1). It is vehemently contended that the alleged sample was taken from the shop of the accused-revisionist on 14.01.1993, while the report Ext. Ka-14 sent by the Director, Central Food Laboratory pertains to the sample taken on 04.01.1993, therefore, the report submitted by the Director, Central Food Laboratory, Calcutta dated 25.06.1993 is not about the same sample taken by the Food Inspector which was tested by the State Food Laboratory, Lucknow, hence the accused- revisionist is entitled for benefit of doubt. It is pertinent to mention here the provisions of Section 13(1)(2)(3), which are reproduced as under:- Sec.13(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. 5 Sec.13(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14 A, forward, in such manner as may be prescribed, 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 it is so desired, either or both of them may make an application to the court within a period of 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. Sec.13(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2B) shall supersede the report given by the public analyst under sub-section (1). 9. In Section 13 (1) of the Act it is specifically provided that public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. Sub Section (2) of Section 13 of the Act says that on receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14 A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, 6 as the case may be, informing such person or persons that it is so desired, either or both of them may make an application to the court within a period of 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. 10. In view of the above right provided to the revisionist by the Act, the accused-revisionist has move an application before the court concerned and the court concerned has passed an order for testing of the sample from Central Food Authority, Calcutta. The report Ext.Ka-14 shows that it was the report in regard to the sample taken by the Food Inspector on 04.01.1993 and the report which is submitted by the State Food Laboratory is in relation to the sample taken on 14.01.1993. Hence, it is not established beyond reasonable doubt that the report given by the Director, Central Food Laboratory Ext. Ka-14 is the report pertaining to the sample taken on 14.01.1993 from the shop of the accused-revisionist. Therefore, the revisionist-accused is entitled for the benefit of reasonable doubt and the revision is liable to be allowed. 11. Sri L.K. Tewari, learned counsel for the revisionist further argued that the letter of the Director dated 30.08.1993 is not admissible as per law as per Section 67 of the Indian Evidence Act, 1872, which is reproduced as under:- Sec. 67 Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. 7 12. In these circumstances, learned counsel for the accused- revisionist has submitted that the said letter cannot be admissible in the evidence as it has not been proved as per section 67 of The Indian Evidence Act, 1872. The arguments advanced by learned counsel for the revisionist has ample force. 13. On the basis of the above discussion the revision is liable to be allowed. Accordingly, the revision is allowed. The judgment and order dated 08.09.1997 passed by II Addl. Sessions Judge, Nainital as well as the judgment and order dated 20.07.1995 passed by Chief Judicial Magistrate, Nainital are set-aside. The revisionist is acquitted of the charge leveled against him. 14. Let a copy of this judgment alongwith the record of the Court below be sent back to the Court concerned. (Dharam Veer, J.) 26.06.2008 NCM: