It is imperative for the prosecution to prove that the accused knew that he had a right to get sample analysed by the CFL

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 Sahu (supra), the 
Court held that the letter, issued in terms of Section 13(2), had 
been proved to have been received by the accused. 

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." 

Page 1
Crl. Rev. P. 732 of 2004
IN THE GAUHATI HIGH COURT 
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: 
MANIPUR: TRIPURA: MIZOAM AND ARUNACHAL PRADESH) 
Criminal Revision Petition 732 of 2004
Sri Chandan Paul, 

– Versus – 
The State of Assam, 
Citation;2013(1)Crimes 563 (Gauhati)

 Aggrieved by the judgment and order, dated 29.11.2004, 
passed, in Criminal Appeal No. 5(2)/2002, by the learned Sessions 
Judge, Cachar, Silchar, dismissing the appeal and upholding 
thereby the judgment and order, dated 21.03.2002, passed by the 
learned Chief Judicial Magistrate, Cachar, Silchar, in CR Case No. 
1817/2000, whereby the learned Chief Judicial Magistrate had 
convicted the accused-petitioner, Chandan Paul, under Section 7 
read with Section 16 of the Prevention of Prevention of Food 
Adulteration Act, 1954 (hereinafter referred to as the ‘PFA Act’) and 
sentenced the accused-petitioner to suffer imprisonment for a 
period of 6 (six) months and pay fine of Rs. 1,000/- and, in default 
of payment of fine, suffer simple imprisonment for a further period 
of 2 (two) months, the appellant (i.e., the present accusedpetitioner) has preferred the present revision petition. 
2. The prosecution’s case may, in brief, be described thus: On 
26.05.2000, Food Inspector, Silchar, accompanied by his Office 
Peon, visited the grocery shop premises of M/s Pratima Bhandar 
and found Chandan Paul (i.e., the present petitioner) present there 
conducting business of his said grocery shop. After disclosing his 
identity and, on inspecting the articles of food, which had been 
kept stored there, for sale, for human consumption, the Food 
Inspector took, amongst others, some sample of Jeera (Cumin). 
For this purpose, the Food Inspector gave a notice, in Form VI, to 
the vendor, Chandan Paul, and purchased, by paying Rs. 54/-, a 
packet of Jeera powder, which had been kept exposed for sale. 
One of the samples of the Jeera powder was sent to the Public 
Analyst, Assam, for analysis, who, after analysis of the sample of 
Jeera powder, reported that the said Jeera powder was 
adulterated. On receipt of the report of the Public Analyst, the 
Food Inspector, having obtained requisite sanction from the Local 
(Health) Authority, lodged a complaint, in the Court of the learned 
Chief Judicial Magistrate, Cachar, Silchar, which gave rise to CR 
Case No. 1817/2000. On institution of the case aforementioned, 
the Local (Health) Authority, with the help of the Food Inspector, 
sent a copy of the Public Analyst’s report to the accused-petitioner 
with a forwarding letter. 
3. At the trial, when a charge, under Section 7 read with 
Section 16 of the PFA Act, was framed against the accusedpetitioner, the accused-petitioner pleaded not guilty thereto. 
4. In support of their case, prosecution examined altogether 
two witnesses, namely, the Food Inspector (PW1) and his Office 
Peon (PW2). The accused-petitioner was, then, examined under 
Section 313 CrPC and, in his examination aforementioned, the 
accused-petitioner denied to have committed the offence, which 
was alleged to have been committed by him, the case of the defence 
being, inter alia, that no notice, as required under Section 13(2) of 
the PFA Act, had been sent to, and received by, the accusedpetitioner. 
5. Having, however, found the accused-petitioner guilty of the 
offence charged with, the learned trial Court convicted him 
accordingly and passed sentence against him as mentioned above. 
Since the appeal, which the accused had preferred against his 
conviction and sentence, stands dismissed, the accused-petitioner 
is, now, before this Court putting to challenge, with the help of the 
present revision petition, the finding of guilt, which has been 
reached against him and also the sentence, which has been passed 
in consequence thereof. 
6. I have heard Mr. N. Choudhury, learned counsel for the 
accused-petitioner, and Mr. K. Munir, learned Additional Public 
Prosecutor, Assam. 
7. Appearing on behalf of the accused-petitioner, Mr. N. 
Choudhury, learned counsel, submits that though the Food 
Inspector (PW1) had claimed, in his evidence, that, in terms of the 
instructions received from the Local (Health) Authority, he had 
sent to the accused-petitioner, by way of Peon Book, a copy of the 
Public Analyst’s report along with a forwarding letter, and claimed 
to have proved the said Peon Book as Exhibit 17 and the signature 
of the accused-petitioner as Exhibit 17(1), the fact remains that the 
Food Inspector failed to prove that he was acquainted with the 
signature of the accused-petitioner and/or that Exhibit 17(1) was a 
signature, given, on the said Peon Book, by the accused-petitioner, 
in presence of the Food Inspector. Therefore, submits Mr. 
Choudhury, Exhibit 17(1) cannot, in law, be treated to be the 
signature of the accused-petitioner, particularly, when the 
accused-petitioner has denied, even in his examination under 
Section 313 CrPC, the receipt of the Public Analyst’s report along 
with forwarding report sent by Exhibit 17. 
8. Support for his above submissions is sought to be derived by 
Mr. N. Choudhury, learned counsel, from the cases of State of 
Orissa vs. Gauranga Sahu, reported in 2003 Cr.L.J. 3077 (SC), 
and Dhananjoy Pal vs. State of Assam, 2005 (SUPPL.) GLT 764. 
9. Resisting the revision, it has been submitted, on behalf of 
the State, by the learned Additional Public Prosecutor, that, in the 
case at hand, it is the specific evidence of the Food Inspector (PW1) 
that a notice, in terms of Section 13(2) of the PFA Act, had been 
sent to the accused-petitioner and that the finding of guilt, 
according to the learned Additional Public Prosecutor, is, in the 
present case, in conformity with the evidence on record and the 
law relevant thereto and may not, therefore, be interfered with. 
10. While considering the rival submissions, as noted above, it is 
of paramount importance to note that though the Food Inspector 
(PW1) claimed that a notice, in terms of Section 13(2) of the PFA 
Act, had been sent to the accused-petitioner by Exhibit 17 and 
that the said notice was received by the accused-petitioner by 
Exhibit 17(1), what is pertinent to note, in this regrd, is that when 
the accused-petitioner was being examined under Section 313 
CrPC, it was put to him that a notice, under Section 13(2) of the 
PFA Act, had been issued to him, which was duly received by him 
by Exhibit 17(1), the accused-petitioner responded by saying that 
no such notice had been received by him. Further-more, while the 
accused-petitioner denied that he had received any such notice, 
the prosecution miserably failed to prove Exhibit 17(1), which is 
the signature of the accused-petitioner, which the accusedpetitioner had put at the time of receiving the said notice, 
inasmuch as the Food Inspector, rightly points out Mr. 
Choudhury, learned counsel, had, admittedly, neither seen the 
accused-petitioner putting his signature on Exhibit 17 nor was the 
Food Inspector acquainted with the signature of the accusedpetitioner. Hence, Exhibit 17(1) cannot be held to have been 
proved to be the signature of the accused-petitioner. 
11. It is, at this juncture, pertinent to make a mention of Section 
313(4) CrPC, which makes it clear that the answers, given by an 
accused, while being examined under Section 313 CrPC, may be 
taken into consideration. Viewed in this light, the answer, which 
was given by the accused-petitioner, at the time of his examination 
under Section 313 CrPC, that he had not received any notice, 
under Section 13(2) of the PFA Act, ought to have been taken note 
of by the learned trial Court and given due importance; more 
particularly, when the prosecution had failed to prove that the 
evidence, so given by the accused-petitioner, was untrue and that 
the notice, which they claimed to have been given to the accusedpetitioner, under Section 13(2) of the PFA Act, was, indeed, 
received by the accused-petitioner. 
12. Situated thus, there could have been no escape from the 
conclusion that the notice, issued to the accused-petitioner, under 
Section 13(2) of the PFA Act, had not been received by the accusedpetitioner. 
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: 
"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 Sahu (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 noncompliance 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 along with 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 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 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 circumstances, 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 Page 
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 noncompliance 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 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 non-compliance 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 '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. 
30. Because of what have been pointed out above, I find that the 
conviction of the accused-petitioner suffers from serious infirmity 
of law and cannot, therefore, be sustained. 
31. In the result and for the reasons discussed above, this 
revision succeeds. The conviction of the accused-petitioner and 
the sentence, passed against him, are hereby set aside. The 
accused-petitioner is held not guilty of the charge framed against 
him and he is acquitted of the same. 
32. With the above observations and directions, this revision 
stands disposed of. 
33. Send back the LCR. 
 JUDGE 
rk