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S.B.Criminal Revision Petition No.159/1994
Gheesa Lal
v.
State of Rajasthan
Date of Order :: 10 th November, 2009
HON’BLE MR.JUSTICE GOVIND MATHUR
Mr. Vineet Jain, for the petitioner.
Ms. Rajlaxmi, Public Prosecutor.
….
This revision petition as per provisions of
Section 397 read with 401 Cr.P.C. is preferred to
assail validity, correctness and propriety of the
judgment dated 19.4.1994 passed by Additional Sessions
Judge No.2, Chittorgarh, affirming the judgment dated
13.4.1989 passed by Chief Judicial Magistrate,
Chittorgarh, convicting the petitioner for the
offences punishable under Section 7/16 of the
Prevention of Food Adulteration Act, 1954 (hereinafter
referred to as “the Act of 1954”) and further
sentencing him to undergo six months rigorous
imprisonment with a fine of Rs.1000/- and in default
of making payment of fine to undergo imprisonment for
1½ months.
The facts necessary to be noticed are that a
complaint against the petitioner was filed on
18.9.1983 before the court of Chief Judicial
Magistrate, Chittorgarh alleging therein that a sample
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of mixed milk from the petitioner was taken on
29.7.1983 in presence of two witnesses and the same
was sealed and sent to the Local Health Authority,
Jaipur for analysis. The Local Health Authority found
the milk adulterated, thus, after examining Shri
Sardar Singh, Food Inspector, who took the sample, the
petitioner was charged under Section 7/16 of the Act
of 1954. It was also stated that a copy of the report
of Local Health Authority was sent to the petitioner
as per provisions of Section 13 of the Act of 1954.
During the course of trial an application was
preferred by the petitioner on 23.2.1987 seeking
permission to get certification of the sample of milk
from the Central Food Laboratory. The application
aforesaid was rejected on 15.1.1988, being not filed
within a period of ten days as required under Section
13(2) of the Act of 1954. The trial court held that a
copy of the Local Health Authority report was sent to
the petitioner by registered post on 17.8.1983,
therefore, he should have applied for certification of
the sample from Director of the Central Food
Laboratory within a period of ten days from its
receipt.
Being convicted and sentenced by the trial
court as said above, the petitioner preferred an
appeal and that too came to be rejected. The appellate
court negatived contention of the appellant that copy
of the Local Health Authority report was not received
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by him and also affirmed conclusion of the trial court
that the accused should have demanded for
certification of the sample by Director of the Central
Food Laboratory within a period of ten days from the
date of receipt of report by Local Health Authority.
Before this Court, while giving challenge to
the judgments impugned, the contention of counsel for
the petitioner is that the courts below failed to
appreciate that neither copy of the Local Health
Authority report was received by the petitioner nor an
opportunity was accorded to him to get certification
of sample as per provisions of Section 13(2) of the
Act of 1954. It is asserted that the trial court
failed to ascertain that whether report was served
upon the petitioner or not specially when such receipt
was denied in unambiguous terms. As per counsel for
the petitioner the presumption drawn by the trial
court regarding service of the report is erroneous. It
is also stated that in view of the Division Bench
judgment of this Court in Onkarlal v. State of
Rajasthan, 2003(2) Cr.L.R. (Raj.) 1050, the trial
court should have allowed the petitioner to get
certification from the Director, Central Food
Laboratory as per provisions of Section 13(2) of the
Act of 1954.
Learned Public Prosecutor contested the
arguments advanced and as per her the trial court
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rightly presumed as per Section 27 of the General
Clauses Act, 1897 regarding service of the report
concerned. She also emphasised that the claim made by
the petitioner for certification of the sample as per
provisions of Section 13(2) of the Act of 1954 was
made beyond statutory limitation and, therefore, same
was rightly turned down by the trial court.
Heard counsel for the parties and examined
the record.
Whether service of report given by the Local
Health Authority upon the petitioner was rightly
presumed by the trial court, is the first issue
deserves consideration.
As per Section 27 of the General Clauses
Act, 1897, meaning of service by post is that “where
any Central Act or Regulation made after the
commencement of this Act authorizes or requires any
document to be served by post, whether the expression
“service” or either of the expressions”give” or “send”
or any other expression is used, then, unless a
different intention appears, the service shall be
deemed to be effected by properly addressing, pre-
paying and posting by registered post, a letter
containing the document, and, unless the contrary is
proved, to have been effected at the time at which the
letter would be delivered in the ordinary course of
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post.” Under the provision aforesaid, the service
shall be deemed to be effected if the envelope or the
cover note is containing proper address, duly stamped
and is sent by registered post. The court drawing
presumption of service as per Section 27, thus, is
required to satisfy itself about the facts aforesaid.
In the case in hand the trial court in quite
vague manner just by recording fact relating to
availability of postal receipt held the service of
Local Health Authority report sufficient. The total
discussion made by the trial court reads as follows:-
"इस ग स पश ह न क ब द मख च ककतस एव सव स
अच क र द र जरर रजजस%र' पत र 13(2) क न ट%स ज र
कक ग कक 10 टदन क अनदर पन: ज + करव सक ह, और
स थ म/ ज ररप %' क0 नकल भज3 गई, जजसक कम क 491
टदन क 17/8/83 इसम/ दज’ ह6 और रजजस7 र क क0 रस3द पदश’
प3-8 पश क0 ह6 ।”
The requisite consideration to draw
presumption of service by post were not at all taken
into consideration by the appellate court also. True
it is, the appellate court noticed the document Ex.P/7
(forwarding letter under which the Local Health
Authority report was sent) and the postal receipt
Ex.P/8. Both the documents aforesaid bear address of
the petitioner and as per Ex.P/7, that is “घ3स ल ल S/O
क ल; ज3 गजर, स 0 बड बद ह 0 बग; (च त>डगढ)”, and as per
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Ex.P/8 it is, “घ3स ल ल S/O क ल; ज3 गजर, बड दड ;
(बग),
च त>रगढ”. The material available on record about proper
addressing as required under Section 27 is not at all
satisfactory and the discrepancy in address in the two
documents aforesaid is quite apparent. In both the
addresses name of the village is given differently.
The court, therefore, should have satisfied itself by
adequate evidence relating to proper addressing and
sufficient stamping. Without availability of such
evidence, to satisfy on the counts aforesaid, no
presumption of service by post could have been made.
Hon’ble Supreme Court in State of Orissa v.
Gouranga Sahu, reported in (2006)1 SCC (Cri) 286, held
that “forwarding a copy of the report is not only a
ritual, but a statutory requirement to be mandatorily
observed in all the cases. Dispatch of such a report
is intended to inform the accused of his valuable
right to get the other sample analysed from the
Central Food Laboratory”. In the case in hand service
of such report is highly doubtful and, therefore,
adherence of the provisions of Section 13(2) of the
Act of 1954 is also not satisfactorily established. In
such circumstances the trial court certainly committed
an error that amounts to miscarriage of justice by
denying for getting the sample analysed and certified
by the Director, Central Food Laboratory. The
limitation of ten days for making demand to send the
samples for their analysis and certification within a
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period of ten days from the date of receipt of Local
Health Authority report in present case was not at all
applicable and for the sake of argument, even if it is
assumed that the limitation was applicable, then too
the trial court should have considered the request
made by the accused as per law laid down by Division
Bench of this Court in the case of Onkarlal (supra),
wherein the provision of Section 13(2) of the Act of
1954 to submit the application for sending one of the
samples to Central Food Laboratory for analysis within
a period of ten days was found directory in nature.
For the reasons aforesaid, this revision
petition is allowed. The judgment dated 13.4.1989,
passed by the trial court and 19.4.1994, passed by the
appellate court are quashed and the petitioner is
acquitted from the charge of committing any offence
punishable under Section 7/16 of the Prevention of
Food Adulteration Act, 1954.
( GOVIND MATHUR ),J.
kkm/ps.