As the object of the PFA Act is to prevent adulteration of food,
this Act embodies very stringent provisions for penalty by making minimum
imprisonment of three months mandatory. Since the scheme of this Act
shows that the conviction of the accused, eventually, rests on the Public
Analyst's report and when the legislature, in its wisdom, has used the word Criminal Petition No. 654 of 2004
'inform' under Section 13(2), the provisions of Section 13(2) have to be strictly
construed. Construed thus, it becomes clear that it is imperative for the
prosecution to prove that the accused knew that he had a right to get
sample analysed by the CFL and that this knowledge has been derived by
the accused from the notice issued under Section 13(2). If the prosecution
fails to prove such knowledge on the part of the accused, it will but be
necessary for the Court to treat that prejudice has been caused to the
accused by non-compliance of this mandatory requirement.
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA; MANIPUR;
MIZORAM; TRIPURA AND ARUNACHAL PRADESH
CRIMINAL REVISION NO. 654 OF 2004
1) Shri Sukumar Roy
Versus
THE STATE OF ASSAM.
By the judgment and order, dated 30.09.2004, passed, in criminal
Appeal No. 10(1)/2004, by the learned Session Judge, Cachar, Silchar, the
appeal has been dismissed and the judgment and order, dated 30.01.2004,
passed, in CR 1614/2000, by the learned Chief Judicial Magistrate, Cachar,
Silchar, convicting the two accused-petitioners, under Section 7 read with
Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to Criminal Petition No. 654 of 2004 Page 2 of 10
Page No. 2
as ‘the PFA Act’) and sentencing each one of them to undergo rigorous
imprisonment for 6 months and pay fine of Rs. 1,000/ and, in default of
payment of fine, suffer simple imprisonment for 30 days, stands upheld.
2. The case of the prosecution may, in brief, be described thus: On
26.05.2000, Senior Food Inspector (PW1) visited the shop, belonging to
accused-petitioner, namely, Sukumar Chandra Roy, who was not present at
his shop and, upon serving a notice, in Form-VI, on accused-petitioner,
namely, Sudip Roy, purchased 600 grams of beson and 600 grams of Moong
daal (whole) for sending the same to the Public Analyst for analysis. The
Public Analyst submitted his report that the samples of beson and moongdal
(whole), sent to him, for analysis, were found adulterated.
3. In the case at hand, we are concerned with the conviction of
the accused-petitioners for sale of adulterated moong daal (whole) and we,
therefore, keep ourselves confined to the accused-petitioners’ trial for
allegedly selling the adulterated moongdal (whole).
4. Based on the report of the Public Analyst, Assam, that the
sample of moong daal (whole), received by him, was found adulterated
inasmuch as the same did not conform to the standard, the Food Inspector
applied to the Local (Health) Authority for sanction and, on receiving the
requisite sanction, submitted a complain, in writing, to the Chief Judicial
Magistrate, Cachar, Silchar, seeking prosecution of the accused-petitioners
under Section 7 read with Section 16 of the PFA Act. Notices, as required by
Section 13(2) of the PFA Act, were sent to both the accused-petitioners
informing them that if they so chose, they could get the sample analyzed by
Central Food Laboratory. The accused-petitioners did not, however, apply
for sending one of the samples of the said food article, kept in the custody of
the Local (Health) Authority, to the Central Food Laboratory for analysis. Criminal Petition No. 654 of 2004 Page 3 of 10
Page No. 3
5. At the trial, when a charge under Section 7 read with Section 16
of the PFA Act were framed against the present accused-petitioners, both of
them pleaded not guilty thereto.
6. In support of their case, prosecution examined the Food
Inspector as the only witness. The two accused were, then, examined under
Section 313 CrP.C. and, in their examinations aforementioned, while the
accused-petitioner No.1, namely, Sukumar Roy, responded by saying that he
had received the report of public analyst, which is claimed to have been
sent to him in terms of Section 13(2) of the PFA Act, the accused-petitioner
No.2, namely, Sujit Roy, responded by saying that he did not remember if he
had received the said report of the Public Analyst. The defence, too,
adduced evidence by examining both the accused-petitioners.
7. Having, however, found both the accused-petitioners guilty of
the offence charged with, the learned trial Court convicted them
accordingly and passed sentence against them as mentioned above. Since
the appeal, which the accused-petitioners had preferred, stands dismissed,
the accused-petitioners are, now, before this court challenging, with the
help of the present revision, finding of guilt reached against them and the
consequential sentences, which have been passed against them.
8. I have heard Mr. J. Roy, learned Counsel for accused-petitioners,
and Mr. K. Munir, learned Additional Public Prosecutor, Assam.
9. While considering present revision, it is pertinent to note that the
Food Inspector claims that in terms of the instructions of the Local (Health)
Authority, he sent, in terms of the requirements of Sections 13(2), the report of
the Public Analyst to both the accused-petitioners by Peon Book. Though the
Food Inspector has proved the signatures of the two accused-petitioners,
there is no evidence on the record that he (Food Inspector) was acquainted
with the hand-writing and/or the signature of either of the two accusedpetitioners nor is there any evidence on record indicating that the signatures Criminal Petition No. 654 of 2004 Page 4 of 10
Page No. 4
aforementioned had been put, on the said Peon Book, by the two accusedpetitioners in the presence of PW1 (Food Inspector). Far from this, the Food
Inspector, during his cross-examination, recalled the name of the said Peon
as Phani Bhusan Das; but the said Phani Bhusan Das was never examined as
a witness.
10. Strictly speaking, therefore, the signatures of the two accusedpetitioners, in the Peon Book, had not been proved and the fact as to
whether the two accused-petitioners had or had not received the Public
Analyst’s report, thus, remained unproved facts.
11. In the circumstances mentioned above, one is required to
consider the evidence of the accused-petitioners and what transpires from
their evidence is that they denied that they had received the notices, which
were claimed to have been sent to them in terms of the requirements of
Section 13(2). The evidence, so given, remained unshaken in the crossexamination.
12. Situated, thus, it is clear that the prosecution had failed to prove
that any notice, as has been provided by Section 13(2), was sent to, and
received by, the two accused-petitioners.
13. The question, which, now, arises for consideration is: When a
notice, in terms of the mandate of Section 13(2), is not received by the
vendor concerned, what would be the consequence ?
14. While considering the question, posed above, it is of paramount
importance to note that in State of Orissa v. Gauranga Sahu, reported in 2003
Cr LJ 3077 (SC), the question raised was: whether, on finding that the
mandate of sub-section (2) of Section 13 of the PFA Act had been complied
with, the High Court ought to have acquitted the accused holding that a
statutory valuable right, available to the accused, had been taken away.
Dealing with this aspect of the matter, the Supreme Court observed and held
as follows: Criminal Petition No. 654 of 2004 Page 5 of 10
Page No. 5
"4. It is argued on behalf of the accused that mere dispatch of the
report is not enough; and that the prosecution is further obliged to
proved that the letter so dispatched had reached the addressee, i. e.
the accused. We agree with this submission, as we believe that
forwarding a copy of the report is not only a ritual, but also a statutory
requirement to be mandatorily observed in all the cases. Dispatch of
such a report is intended in inform the accused of his valuable right to
get the other sample analysed from the Central Food Laboratory. "
(Emphasis is added)
15. From what have been held by the Supreme Court in Gauranga
Sahu (supra), it becomes transparent that the prosecution, besides proving
that a copy of the public analyst’s report had been forwarded to the
accused in terms of Section 13(2) of the PFA Act, must also prove that the
notice/letter, dispatched in terms of Section 13 (2), had reached the
addressee i. e. the accused, for, this obligation is not a mere ritual, but a
statutory mandate, which must be observed in all cases.
16. The law, so clearly laid down by the Supreme Court, in Gauranga
Sahu (supra), leaves no room for doubt that compliance of Section 13 (2) will
not be treated complete unless the prosecution discharges its additional
obligation of proving, by adducing cogent evidence, that the notice, issued
under Section 13(2), has been served upon, and/or received by, the
accused.
17. The object, as the decision in Gauranga Sahu (supra) reflects, is
to 'inform' the accused about his valuable right to get the sample analysed
by the Central Food Laboratory. Whether in the facts of a given case, the
notice can be treated to have been served on an accused or not will,
however, be a question of fact, which has to be determined on the basis of
the facts of the given case. In the set of facts proved in Gauranga SahuCriminal Petition No. 654 of 2004 Page 6 of 10
Page No. 6
(supra), the Court held that the letter, issued in terms of Section 13 (2), had
been proved to have been received by the accused.
18. That Section 13 (2) is mandatory, in nature, has been accepted
by this Court in its decision, namely, Shyamal Nag v. State of Assam, reported
in 2004 (1) GLT 667, wherein the Court has observed, on taking note of the
decision in Gauranga Sahu (supra), thus: ". . . . . . . . It can be safely said the
Section 13 (2) is mandatory in nature and it confers valuable right on the
accused, denial of which would constitute prejudice to the accused entitling
him to acquittal." (Emphasis is added)
19. The question, which, now, arises, is: whether non-compliance of
Section 13 (2) will per se vitiate the trial or the accused is required to prove
that prejudice has been caused to him, because of non-service of the public
analyst’s report. While dealing with this aspect of the matter, it is of prime
importance to note that to receive ‘fair trial’ is the constitutional right of
every accused and the State carries the corresponding duty, in terms of
Article 21 of the Constitution, to provide ‘fair trial’ to the accused. The right to
have ‘fair trial’ by an accused means that the trial has to be fair at its every
stage.
20. When the Supreme Court has held, in Gauranga Sahu (supra),
that the forwarding of a letter/notice alongwith the report to the accused, in
terms of Section 13 (2), constitutes a valuable right of the accused to get the
sample analysed by the Central Food Laboratory, it logically follows that the
compliance of Section 13 (2) becomes mandatory, for, this compliance
becomes a condition precedent for a ‘fair trial’. If it is not followed, then, the
provisions of Section 13 (2) being mandatory, the non-compliance thereof
will per se vitiate the trial.
21. It was sought to be raised, on behalf of the prosecution, that
even if there is no direct or cogent evidence to prove that the notice, under
Section 13(2), had been received by the accused, the accused can very Criminal Petition No. 654 of 2004 Page 7 of 10
Page No. 7
well, while appearing in the Court, in pursuance of the summons issued for
trial, apply for sending one part of the sample to the Central Food Laboratory
(hereinafter as 'the CFL' ). While considering this facet of the prosecution's
argument, it is imperative to note that the object of Section 13 (2), as the
decision in Gauranga Sahu (supra), shows and as has been pointed out
herein above, is that the accused be ‘informed’ of his right to get the sample
analysed from the CFL.
22. In view of the fact that the object of giving of a notice, under
Section 13 (2), is really to 'inform' the accused of his valuable right to get the
sample analysed from the CFL, it is not enough for the prosecution to say, in
the light of the decision in Gauranga Sahu (supra), that the accused ought to
have known the law that he has the right to get the sample analysed from
the CFL. The obligation of the prosecution is really to 'inform' the accused of
his right to get the sample analysed from the CFL. If the accused in not
informed that he has a right to send the sample for analysis, the mere fact
that the report had been received by the accused will be of no material
consequence.
23. Considered thus, the object, under Section 13(2), is not to merely
ensure that the accused gets, if he so opts, analysed a part of the sample
from the CFL, but the purpose is also to 'inform' the accused that he has such
a right vested in him. Giving of adequate 'information' is, thus, an essential
ingredient of Section 13 (2) and this cannot be said to have been achieved
unless cogent evidence is adduced to show that such an 'information' had,
indeed, been made available to the accused.
24. In a prosecution under the PFA Act, it is essentially the report of
the Public Analyst, which forms the basis for conviction of the accused;
hence, it is quite logical that the legislature, in their wisdom, deemed it
mandatory for the State to not only serve a copy of the Public Analyst's
report on the accused, but also to ‘inform’ the accused of his right to get the Criminal Petition No. 654 of 2004 Page 8 of 10
Page No. 8
sample analysed from the CFL. It further logically follows that if merely a copy
of the report of the Public Analyst is served on the accused, this, in itself, will
not constitute compliance of Section 13(2). Far from this, the prosecution has
also the obligation to prove, convincingly and beyond doubt, that the
accused had been ‘informed’ that he had a right to get analysed the
sample by the CFL. If this ‘information’ is not given to the accused, serving of
the report of the Public Analyst on the accused, will be a mere ritual and will
not satisfy the rigour of Section 13 (2).
25. A microscopic reading of the provisions of Section 13 (2) shows, if
I may reiterate, that the object, behind Section 13(2), is not merely to make a
report of the Public Analyst reach the accused, but also to 'inform' him that
he has a right to get the sample examined by the CFL. The underlying
emphasis, in Section 13(2), is on the word 'information'. The dictionary
meaning of the word 'information' is the knowledge communicated or
received concerning a particular fact or circumstance, that is to say, let the
accused know that he has a right to get the sample analysed by the CFL.
Thus, Section 13(2) is an exception to the general philosophy that ignorance
of law is no excuse and it can be no argument that irrespective of the fact
whether the accused had received the notice under Section 13 (2) or not, he
could have, on his appearance in the Court, prayed for sending a part of the
sample to the CFL for analysis.
26. In Ratanlal Agarwalla vs. State of Assam, (1993) 1 GLR 286, the
Full Bench of our High Court construed that the word 'forward', used in
Section 13(2), indicates that the obligation of the prosecution is merely to
send notice to the place or destination and does not mean ‘serve’ or
‘deliver’. Having so construed, the Full Bench concluded that Section 13(2) is
‘directory’ and its non-compliance would not per se vitiate the trial.
27. In view, however, of the fact that the Supreme Court has, now,
held, in Gauranga Sahu (supra), that the prosecution's burden is not Criminal Petition No. 654 of 2004 Page 9 of 10
Page No. 9
discharged merely by sending the notice under Section 13 (2), but it must
also ensure that the notice is received by the accused, for, the purpose of
dispatch of the report is to ‘inform’ the accused of his valuable right to get
the sample analysed from the CFL, there can be no escape from the
conclusion that Section 13(2) is mandatory and non-compliance thereof per
se vitiates the trial.
28. Since the object of Section 13(2) is really to 'inform' the accused
that he has the option to get the sample analysed by the CFL, it is clear that
for achievement of this object, the condition precedent is that the notice,
under Section 13(2), be received by, and/or served upon, the addressee.
Hence, if the report of the public Analyst is merely sent with a forwarding
letter and even if the same is received by the addressee, the provisions of
Section 13(2) will not be complied with, for, mere receipt of the report by the
addressee does not fulfill the object of Section 13(2) until the ‘information’ is
also given to the addressee that he has the option to get the sample
analysed by the CFL.
29. Because of the fact that the object of Section 13(2) is to ‘inform’
the accused of his right to get the sample analysed by the CFL, its noncompliance will per se vitiate the trial and, in such a case, prejudice will be
implicit in such non-compliance, for, the accused would not be knowing that
he has the right to get sample analysed and the report, which the Public
Analyst has given, can be superseded by the result, which the analysis from
by CFL will render. The lack of 'information', on the part of the accused, is, in
itself, a cause of prejudice and the same is sufficient to vitiate the trial.
30. As the object of the PFA Act is to prevent adulteration of food,
this Act embodies very stringent provisions for penalty by making minimum
imprisonment of three months mandatory. Since the scheme of this Act
shows that the conviction of the accused, eventually, rests on the Public
Analyst's report and when the legislature, in its wisdom, has used the word Criminal Petition No. 654 of 2004 Page 10 of
10
Page No. 10
'inform' under Section 13(2), the provisions of Section 13(2) have to be strictly
construed. Construed thus, it becomes clear that it is imperative for the
prosecution to prove that the accused knew that he had a right to get
sample analysed by the CFL and that this knowledge has been derived by
the accused from the notice issued under Section 13(2). If the prosecution
fails to prove such knowledge on the part of the accused, it will but be
necessary for the Court to treat that prejudice has been caused to the
accused by non-compliance of this mandatory requirement.
31. Because of what have been discussed and pointed out above,
the two accused-petitioners could not have been convicted of the charge
framed against them.
32. In the result and for the foregoing reasons, this revision succeeds,
the impugned judgments and orders are hereby set aside. Both the
accused-petitioners held not guilty of the charge framed against them and
they are acquitted of the same.
33. Send back the LCR.
JUDGE
Paul
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