Learned counsel for the respondent, on the other hand, contended that right to receive copy of Public Analyst's report is a valuable right vested with the accused. He submits that it is mandatory for the Public Health Authority to send a copy of report of the result of analysis to accused informing him that if it is so desired, either or both of them may 5
make an application to the court within a period of ten days from the date of receipt of 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. In support of his submission, learned counsel relied upon judgment of this Court in Pimpri Chinchwad Nagarpalika v. Giriraj & anr reported in 1998 Cri. L.J. 4354. In para 5 of the said ruling, this Court observed thus : "...... On a reading of Rule 9 (A) it can be seen that Analyst's report should be delivered to the accused. It is not enough to prove that the report is sent by post. Rule is mandatory that the authority should see that it is delivered to the accused. Mere production of copy of covering letter will be be sufficient to prove that the report is delivered."
6. On hearing learned counsel for the parties on the above point and on reading the evidence led on record, I am of the opinion that the evidence is lacking in this case that the prosecution has failed to establish that the mandatory provision of rule 9A of the Prevention of Food Adulteration Rules has been complied with. Finding rendered in this behalf by the learned trial Court, therefore, needs no interference.
Bombay High Court
Nagpur Bench : Nagpur vs Administration, Ms, Wardha on 1 August, 2012
Bench: A.P. Bhangale
1. This appeal is preferred against judgment and order dated 6.11.2000 passed by the Chief Judicial Magistrate, Wardha in Regular Criminal Case No. 636 of 1999 whereby respondent/accused has been acquitted of the offence under Section 7 (i) read with Section 2 (ia) punishable under Section 16 (1) (a) (ii), Section 7 (i) read with Section 2 (ia) (m) punishable under Section 6 (1) (a) (i), Section 7 (a) of the Prevention of Food Adulteration Act, 1954 read with rule 62 of the Rules framed thereunder.
2. Facts, in brief, are as under:
Respondent/accused is proprietor of M/s Atul Provisions situated at Sewagram, District Wardha which is stockist of various food articles for sale. Food Inspector Salunke along with panch witness Champat visited the business premises of accused on 24.9.1998 at about 15.00 hours. Accused was present in the shop. Food Inspector Salunke after disclosing his identity and purpose of visit, demanded and purchased six packets of "Vansh Ghutka" each packet containing 100 pouches weighing 850 gms from accused on payment of Rs. 252/-. He took out sample and drew panchanama at the spot and handed over copy of panchanama to the accused. One of the sealed samples of said Ghutka was sent to the Public Analyst, Nagpur and also to the Local Health Authority 3
as per procedure on 9.11.1998. Food Inspector Salunke received report from the Public Analyst which showed that the sample was containing anticaking agent, magnisium, carbonate which contravened the provisions of rule 62 of the Rules. The Food Inspector then sent all investigating papers to the Local Health Authority for onward submission to the Joint Commissioner, Nagpur Division, Nagpur for grant of permission to prosecute the accused. Consent order was received on 31.5.1999 through Local Health Authority, Wardha. According to the complainant. Article viz. "Vansh Ghutka" is a "food" as defined under Section 2 (v) of the Act which, in the present case, did not conform to the standard quality and was adulterated one.
3. Heard learned counsel for the parties at length. Perused oral and documentary evidence led on record as also impugned judgment and order of acquittal.
4. Learned Additional Public Prosecutor contends that finding of the trial Court that the prosecution has failed to prove that copy of analytical report was served on the accused, is not correct. In this behalf she took me through the evidence of PW 4 Anand Dongre who was at the relevant time working as the office of Local Health Authority. He deposed that on receipt of analytical report (exhibit 77), he sent copy thereof to the 4
accused and proved postal receipt (exhibit 78) to that effect. In cross- examination, he deposed that he did not bring relevant Register in the Court wherein there is entry about despatch of analytical report to the accused. He denied the suggestion that there was no compliance of Section 13 of the Act. In support of her submission, Ms Deshpande placed reliance on two rulings of the Madhya Pradesh High Court in State of MP v. Trilokchandra reported in 1995 Cri. L.J. 3400 and State of MP v. Ramdeo & anr reported in 1995 Cri. L.J. 1512. In Trilokchand's case it is held that when copy of Public Analyst Report is sent to the accused by registered post, delivery of report can be presumed even in absence of its acknowledgment. In Ramdeo's case it is held that requirement of law is to send Public Analyst's report to the concerned persons by registered post and it is not necessary to send it with acknowledgment due. It is further held that since the Prevention of Food Adulteration Act is a central Act, provisions of Section 27 of the General Clauses Act, 1897 would be attracted.
5. Learned counsel for the respondent, on the other hand, contended that right to receive copy of Public Analyst's report is a valuable right vested with the accused. He submits that it is mandatory for the Public Health Authority to send a copy of report of the result of analysis to accused informing him that if it is so desired, either or both of them may 5
make an application to the court within a period of ten days from the date of receipt of 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. In support of his submission, learned counsel relied upon judgment of this Court in Pimpri Chinchwad Nagarpalika v. Giriraj & anr reported in 1998 Cri. L.J. 4354. In para 5 of the said ruling, this Court observed thus : "...... On a reading of Rule 9 (A) it can be seen that Analyst's report should be delivered to the accused. It is not enough to prove that the report is sent by post. Rule is mandatory that the authority should see that it is delivered to the accused. Mere production of copy of covering letter will be be sufficient to prove that the report is delivered."
6. On hearing learned counsel for the parties on the above point and on reading the evidence led on record, I am of the opinion that the evidence is lacking in this case that the prosecution has failed to establish that the mandatory provision of rule 9A of the Prevention of Food Adulteration Rules has been complied with. Finding rendered in this behalf by the learned trial Court, therefore, needs no interference.
7. Learned Additional Public Prosecutor strenuously contended that learned trial Court should have seen that main object of rules 14 and 6
16 of the Rules is that the Food Inspector should take the sample in a suitable container to prevent leakage, evaporation or possibility of moisture. She submits that the Food Inspector had used plastic bags and ends of the plastic bags were closed by means of flame of vax candle and were made air-tight. Rule 14 of the Rules provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. Further, rule 16 of the Rules prescribes the manner of packing and sealing the samples. It, inter-alia, provides that the stopper shall first be securely fastened so as to prevent leakage of the contents in transit; the bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive. In this case, plastic bags were used as container which can hardly be said to be "suitable container" as envisaged in rule 14 of the Rules. Rule requires that container should be dry and clean and it is not contemplated that sample should be sent in a plastic bag which can easily be tampered with. It is not borne out from the evidence of Food Inspector that after sealing plastic bags with the help of candle flame, plastic bags were completely wrapped in fairly strong thick paper and ends of such paper were neatly folded in and affixed by means of gum or other adhesive. In view of this, I 7
am not inclined to agree with the submissions advanced on behalf of the appellant-State. It is crystal clear from the oral and documentary evidence available on record that in the present case, manner of sending sample for analysis and manner of packing and sealing samples as prescribed by rules 14 and 16 of the Prevention of Food Adulteration Rules, 1955 was given a total go-bye.
8. Thus, the appeal fails on both the counts and is dismissed accordingly.
A. P. BHANGALE, J
joshi
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