Mere dispatch of the report to the accused is not a sufficient compliance with the requirement of Section 13(2) of Prevention of Food Adulteration Act, 1954: The Supreme Court of India

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1312 OF 2021 Arising out of Special Leave PetitionNo. 59918 NARAYANA PRASAD SAHU ..…APPELLANT THE STATE OF MADHYA PRADESH .....RESPONDENT J U D G M E N T Abhay S. Oka J The appellant has been convicted for the offence punishable under Sectionof the Prevention of Food Adulteration Act 1954 andof Section 7 of the said Act of 1954. The case of the prosecution is that on 16 th January 2002 the appellant was selling chana daal in weekly market in Kagpur when the Food Inspector came there and called upon the appellant to show licence. However the appellant failed to show any licence. The Food Inspector purchased 750 gms of chana daal from the appellant. The said quantity was divided into three parts and was sent for examination to Public Analyst. The report of Public Analyst showed that the chana daal was adulterated. Judgment and Order of conviction was rendered by the Judicial Magistrate First Class on 12th October 2007. The learned Magistrate convicted the appellant to undergo rigorous imprisonment for six months and to pay fine of Rs.1000 . In default of payment of fine he was directed to undergo rigorous imprisonment for one month. In appeal preferred by the appellant the Sessions Court confirmed the conviction and sentence. The appellant preferred a Revision Application before the High Court which has been dismissed by the impugned Judgment and Order dated 3rd May 2018. The submission of the learned counsel appearing for the appellant is that as mandatorily required by sub sectionof Section 13 of the said Act of 1954 a copy of report of Public Analyst was not supplied to the appellant as a result of which his valuable right to get the samples analysed by Central Food Laboratory has been defeated He pointed out that according to the prosecution case a copy of the report was allegedly sent to the appellant by registered post and endorsements made by the Postman showed that number of attempts were made to serve the letter but the appellant was not available even after giving intimation and therefore the letter was returned by the Postman. He submitted that the High Court has committed an error by holding that the appellant has refused to accept the copy of the report sent to him by registered post. He submitted that there is a complete violation of mandatory provisions of sub sectionof Section 13. He would therefore submit that the prosecution is vitiated. The learned counsel relied upon a decision of this Court in the case of Vijendra v State of Uttar Pradesh1 in support of his contentions. He also relied upon a decision of Allahabad High Court in the case of Jameel v. State of U.P. and Ors.2 The learned counsel appearing for the respondent State supported the impugned judgments. He relied upon Rule 9B of Prevention of Food Adulteration Rules 195515 SCC 763 2SCC online Allahabad 1547 envelope. He submitted that a presumption of service of the report has been rightly drawn by the High Court. He would therefore submit that no interference is called for. 5. We have carefully considered the submissions. Sub sectionsof Section 13 of the said Act of 1954 reads thus: “13. Report of public analyst.—(1) The public analyst shall deliver in such form as may be prescribed a report to the LocalAuthority of the result of the analysis of any article of food submitted to him for analysis. 2) On receipt of the report of the result of the analysis under sub sectionto the effect that the article of food is adulterated the Local Authority analysed by the Central Food Laboratory” Under sub section of Section 13 it is mandatory for the Local Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub section 2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired he can 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 analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the article of food was taken. Apart from the right of the accused to contend that the report is not correct he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the accused his right under sub sectionof Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated Consequently his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra held that mere dispatch of the report to the accused is not a sufficient compliance with the requirement of sub section of Section 13 and the report must be served on the accused. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope the Postman who has allegedly made the said remarks was admittedly not examined by the Rule 9B of the said Rules reads thus: “9B. Localauthority to send report to person concerned The Local Authority shallafter the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub ruleof rule 7 by registered post or by hand as may be appropriate to the person from whom the sample of the article was taken by the food inspector and simultaneously also to the person if any whose name address and other particulars have been disclosed under section 14A of the Act: Provided that where the sample conforms to the provisions of the Act or the rules made thereunder and no prosecution is intended under sub section 2) or no action is intended under sub sectionAuthority shall intimate the result to the Vendor from whom the sample has been taken and also to the person whose name address and other particulars have been disclosed under section 14A of the Act within 10 days from the receipt of the report from the More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the accused. In the present case after the postal packet was returned not even an attempt was made to personally serve the report on the appellant. On the basis of endorsements of the Postman appearing on the postal envelope containing the report the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover the High Court has glossed over the mandatory requirement under sub sectionof Section 13 of serving a copy of the report on the accused Evidence adduced by the prosecution was of mere dispatch of the report. Hence the mandatory requirement of sub section of Section 13 was not complied with. Therefore the conviction and sentence of the appellant cannot be sustained. Accordingly the appeal is allowed. The impugned Judgment and Order of the High Court dated 3rd May 2018 in CRR No. 303 2008 is hereby set aside and by allowing the Revision Petition the conviction of the appellant is hereby set aside. .. …J New Delhi October 29 2021 ABHAY S. OKA

Summary: Under sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of sub-section 5 (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can 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 analysed by Central Food Laboratory. The aforesaid has been upheld by the Supreme Court of India while adjudicating the case of Narayana Prasad Sahu v. The State Of Madhya Pradesh [Criminal Appeal No. 1312 of 2021] which was adjudicated upon by a single judge bench comprising Justice Abhay S. Oka on 29th October 2021. The facts of the case are as follows. The appellant was selling chana daal in weekly market in Kagpur when the Food Inspector came there and called upon the appellant to show licence. However, the appellant failed to show any licence. The Food Inspector purchased 750 gms of chana daal from the appellant. The said quantity was sent for examination to Public Analyst. The report of Public Analyst showed that the chana daal was adulterated. The learned Magistrate convicted the appellant to undergo rigorous imprisonment for six months and to pay fine of Rs.1000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for one month. In appeal preferred by the appellant, the Sessions Court confirmed the conviction and sentence. The appellant preferred a Revision Application before the High Court, which has been dismissed by the impugned Judgment and Order. The submission of the learned counsel appearing for the appellant is that as mandatorily required by sub-section (2) of Section 13 of the said Act of 1954, a copy of report of Public Analyst was not supplied to the appellant, as a result of which his valuable right to get the samples analysed by Central Food Laboratory had been defeated. The court perused the facts and arguments presented. It was of the opinion that “On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement under subsection (2) of Section 13 of serving a copy of the report on the accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the appellant cannot be sustained.”