Vijendra vs State of Uttar Pradesh

HELD : 1. While adverting to the provision in Section 13(2) of Prevention of Food Adulteration Act, 1954, requiring to furnish the report of the Analyst to the accused as contemplated therein, all the three Courts have taken note of the evidence of PW-2 the Food Clerk who claimed to have despatched the report by registered post on 07.04.1980. They have, however, failed to take note that no evidence was brought on record to indicate that the report which is claimed to have been despatched was actually served or delivered to the appellant. The very purpose of furnishing such report is to enable the accused to seek for reference to the Central Food Laboratory for analysis if the accused is dissatisfied with the report. Such safeguard provided to the accused under Section 13(2) of the Act is a valuable right. In that view even if the despatch of the report on 07.04.1980 is taken as substantial compliance though it is beyond the period of

10 days from 18.03.1980 i.e., the date on which the prosecution was lodged, in the absence of there being proof of delivery of the report to the accused; in the instant facts, the valuable right available to the accused/appellant to seek for reference within the period of 10 days stands defeated. In that circumstance when the appellant/accused is made to suffer the penal consequences, it will have to be construed strictly. In the facts and circumstances of the present case, since the report of the Analyst has not in fact been served on the appellant and the mere despatch of the report as per the statement of PW-2 was not sufficient. If that be the position, the entire case of the prosecution which revolves around and is built upon the report of the Analyst cannot be made the basis for holding the appellant/accused guilty in the present case. [Para 15] [798-B-G]

2. Though it is contended on behalf of the prosecution that as per the requirement under Section 10(7) of the Act, 1954, an independent person had also witnessed the taking over of the sample, the said witness did not support the case of the prosecution. Though the Magistrate has in that circumstance held that it would be sufficient to rely on the evidence of PW-1 (Food Inspector) despite not being supported by any other witness as PW-1 has no enmity with the accused, that by itself would not be sufficient in the instant facts, since the very requirement of the provision is to collect the sample in the presence of an independent witness. [Para 16] [799-B-D]

3. The manner as to whether the sample was appropriately taken after properly stirring the milk and whether the same was sent for analysis also in such manner has, therefore, not been established. This is more so in the circumstance where milk which is a primary product, has fat content and the fat content would also depend on the appropriate manner in which the sample is taken after stirring. In the instant case, the Public Analyst had opined that the milk sample was deficient by 12 per cent in milk fat and 27 per cent in non-fatty solids. The said results would become relevant only if it is established that the sample taken for such analysis was also in a proper manner after stirring which would make the fat and non-fat into homogenous mixture. Hence, in that regard appropriate evidence was necessary more particularly, when PW-3 who was claimed to be an independent witness has not supported the prosecution. In the facts and circumstances of the present case, the uncorroborated testimony of PW-1 – Food Inspector cannot be relied upon to sustain the conviction. [Paras 16 and 17] [799-D; E; G-H; 800-A] K. Harikumar v. Food Inspector, Punaloor Municipality (1995) Suppl. 3 SCC 405 – relied on.

4. Therefore, even if the other aspects are not adverted to, the very fact that the Analyst’s report being served not being proved and the sample being taken in an appropriate manner not being established, it would be sufficient to hold that the prosecution has not proved the guilt of the appellant beyond reasonable doubt and the conviction is not justified. The appellant is acquitted of the charge under Section 7(1)/16(1)(a)(i) of Prevention of Food Adulteration Act. [Para 18] [800-B-D] Ram Lubhaya v. Municipal Corporation 1975 FAJ 253 – referred to.