Case: State Of H.P Vs. Narender Kumar

Raj Karans case (supra), wherein it was observed that it is mandatory that the materials referred in Rules 17 and 18 are to be separately sent to the Public Analyst. The object of Rule 18 is to ensure the accuracy of the seal on the sample sent to the Public Analyst by comparison with the specimen impression of the seal sent by the food Inspector separately. The report of the Public Analyst in terms of Rule 7(3) marked as Ext. PJ shows that he found the same intact and unbroken. The seal fixed on the container and on the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. A presumption can be drawn that requirements of Rule 18 have been complied with. The presumption under Section 114 of the Indian Evidence Act, 1872 (in short the Evidence Act) in relation to regular performance of official acts applies to the report of a Public Analyst. However, this presumption is rebuttable. No effort was made by the accused to dislodge this presumption. There was even no suggestion to the Food Inspector (PW-1) who exhibited the report that there is any untruth in the recital by the Public Analyst. It is relevant to note that under sub-section (5) of Section 13 of the Act any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-section (3) of the said Section or any document purporting to be a certificate to be a signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein any proceeding under the Act. It is urged that the memorandum and the specimen impression of seal were to be sent separately in different packets. On a plain reading of Rule 18, what is required is that a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent in a sealed packet (underlined for emphasis) separately to the Public Analyst. As indicated above, the word separately refers to separate despatch of articles indicated in Rule 17, and Rule 18. The expression in a sealed packet refers to both the copy of memorandum and the specimen impression of the seal. The are both required to be sent in a sealed packet. Plurality of packets is not provided for and obligated. What is required is that the copy of memorandum and specimen impression of the seal used to seal the packet are to be sent in a sealed packet separately and not with the articles required to be sent under Rule 17. 8. This Court in N. Sukumaran Nair vs. Food Inspector, Mavelikara (1997 (9) SCC 101 ) dealt with requirements of Rule 18 and in paragraph 2 noted as follows: "It has vehemently been urged by Mr. V.A. Bobde, learned Senior Counsel that compliance of Rule 18 was mandatory and since there was an infraction in the instant case the view of the trial court deserves to prevail. We fail to see how there is violation of the said Rule. The Food Inspector as PW1 was categorie that he had sent the specimen impression of the seal separately to the Public Analyst under sealed cover. It is true that he did not adduce in evidence the postal receipt vide which the specimen impression of the seal was sent separately. The Food Inspector could be dubbed wrong if his statement had been challenged in cross-examination. As is obvious, the Food Inspector deposed to the observance of the requirement of Rule 18 but, at best, can be said not to have introduced corroborative evidence to his word. But if the word of the Food Inspector is not challenged in cross examination and is otherwise found corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not resorted on. We are, thus, of the view that the High Court was justified in upsetting the order of acquittal on the aforesaid ground." 9. Additional during trial PW-1 produced postal receipts (Exts. PE and PG) with regard to the memos and Ext. PW1/A and Ext. PW1/B regarding despatch of the same sending of memos. The genuiness of the receipts was not questioned by accused no.1. Strangely, the trial court and High Court did not consider the evidentiary value of these documents. 10. When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence. 12.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]When the evidence on record is considered in the background of the legal position highlighted above, the inevitable conclusion is that the Trial Court and the High Court were not justified in directing acquittal of accused no.1. So far as the acquittal of accused no.2 is concerned, the conclusions of the Trial Court and the High Court have been arrived at by properly appreciating the evidence and no interference is called for.11. The occurrence took place nearly two decades back, and the Courts below acquitted the accused, though erroneously. Therefore, keeping in view the nature of violation and the peculiar facts and circumstances of the case while sentencing accused no.1 to undergo 6 months RI and fine of Rs. 1,000/- we make it clear that if accused no.1 moves the appropriate government to commute the sentence of imprisonment, the same may be considered in the light of this Courts decision in N. Sukumarans case (supra) subject to such conditions or terms as the government may chose to impose. For period of three months, the accused need not surrender to undergo sentence. During this period it shall be open to him to move the appropriate government for commutation. The fate of the order of commutation, if any, shall be operative. If no order is the matter of commutation is passed by the appropriate government, the accused no.1 shall surrender the custody to serve the remainder of sentence.