Narayana Prasad Sahu vs The State Of Madhya Pradesh on 29 October, 2021


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Supreme Court of India

Narayana Prasad Sahu vs The State Of Madhya Pradesh on 29 October, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

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                                                                      NON-REPORTABLE

                                     IN THE SUPREME COURT OF INDIA

                                    CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL NO. 1312 OF 2021
                         [Arising out of Special Leave Petition (Crl.) No. 5991 of 2018]



             NARAYANA PRASAD SAHU                                        ..…APPELLANT

                                                 v.

             THE STATE OF MADHYA PRADESH                                 .....RESPONDENT



                                              J U D G M E N T

Abhay S. Oka,J.

Leave granted.

1. The appellant has been convicted for the offence punishable

under Section (16)(1)(a)(i)(ii) of the Prevention of Food Adulteration Act,

1954 (for short “the said Act of 1954”). The allegation against the

appellant was of violation of clauses (i) and (v) of Section 7 of the said

Act of 1954.

2. The case of the prosecution is that on 16 th January 2002 the
Signature Not Verified

appellant was selling chana daal in weekly market in Kagpur when the
Digitally signed by
NEETU KHAJURIA
Date: 2021.10.29
16:18:59 IST
Reason:

Food Inspector came there and called upon the appellant to show
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licence. However, the appellant failed to show any licence. The Food

Inspector purchased 750 gms of chana daal from the appellant. The

said quantity was divided into three parts and was sent for examination

to Public Analyst. The report of Public Analyst showed that the chana

daal was adulterated. Judgment and Order of conviction was rendered

by the Judicial Magistrate First Class on 12 th October 2007. The

learned Magistrate convicted the appellant to undergo rigorous

imprisonment for six months and to pay fine of Rs.1000/-. In default of

payment of fine, he was directed to undergo rigorous imprisonment for

one month. In appeal preferred by the appellant, the Sessions Court

confirmed the conviction and sentence. The appellant preferred a

Revision Application before the High Court, which has been dismissed

by the impugned Judgment and Order dated 3 rd May 2018.

3. The submission of the learned counsel appearing for the

appellant is that as mandatorily required by sub-section (2) of Section

13 of the said Act of 1954, a copy of report of Public Analyst was not

supplied to the appellant, as a result of which his valuable right to get

the samples analysed by Central Food Laboratory has been defeated.

He pointed out that according to the prosecution case, a copy of the

report was allegedly sent to the appellant by registered post and

endorsements made by the Postman showed that number of attempts
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were made to serve the letter but the appellant was not available even

after giving intimation and therefore, the letter was returned by the

Postman. He submitted that the High Court has committed an error by

holding that the appellant has refused to accept the copy of the report

sent to him by registered post. He submitted that there is a complete

violation of mandatory provisions of sub-section (2) of Section 13. He

would, therefore, submit that the prosecution is vitiated. The learned

counsel relied upon a decision of this Court in the case of Vijendra v.

State of Uttar Pradesh1 in support of his contentions. He also relied

upon a decision of Allahabad High Court in the case of Jameel v. State

of U.P. and Ors.2

4. The learned counsel appearing for the respondent-State

supported the impugned judgments. He relied upon Rule 9B of

Prevention of Food Adulteration Rules, 1955 (for short “the said Rules”)

and submitted that the prosecution adopted one of the two permissible

modes of sending the report by registered post to the appellant-

accused. He submitted that endorsements on the postal packet

containing the report showed that after giving an intimation to the

appellant, the Postman unsuccessfully attempted to serve the report to

the appellant on six occasions and only thereafter, returned the
1 (2020) 15 SCC 763
2 (1999) SCC online Allahabad 1547
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envelope. He submitted that a presumption of service of the report has

been rightly drawn by the High Court. He would, therefore, submit that

no interference is called for.

5. We have carefully considered the submissions. Sub-sections (1)

and (2) of Section 13 of the said Act of 1954 reads thus:-

“13. Report of public analyst.—(1) The public
analyst shall deliver, in such form as may be
prescribed, a report to the Local (Health) Authority of
the result of the analysis of any article of food
submitted to him for analysis.

(2) On receipt of the report of the result of the
analysis under sub-section (1) to the effect that the
article of food is adulterated, the Local (Health)
Authority shall, after the institution of prosecution
against the persons from whom the sample of the
article of food was taken and the person, if any,
whose name, address and other particulars have
been disclosed under section 14A, forward, in such
manner as may be prescribed, a copy of the report
of the result of the analysis to such person or
persons, as the case may be, informing such person
or persons that if it is so desired, either or both of
them may make an application to the court within a
period of ten days from the date of receipt of the
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”.

Under sub-section (2) of Section 13, it is mandatory for the Local

(Health) Authority to forward a copy of the report of the Public Analyst

to the person from whom the sample of the food has been taken in

such a manner as may be prescribed. Further mandate of sub-section
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(2) of Section 13 is that a person to whom the report is forwarded

should be informed that if it is so desired, he can make an application

to the Court within a period of ten days from the date of receipt of the

copy of the report to get the sample analysed by Central Food

Laboratory. The report is required to be forwarded after institution of

prosecution against the person from whom the sample of the article of

food was taken. Apart from the right of the accused to contend that the

report is not correct, he has right to exercise an option of sending the

sample to Central Food Laboratory for analysis by making an

application to the Court within ten days from the date of receipt of the

report. If a copy of the report of the Public Analyst is not delivered to

the accused, his right under sub-section (2) of Section 13 of praying for

sending the sample to the Central Food Laboratory will be defeated.

Consequently, his right to challenge the report will be defeated. His

right to defend himself will be adversely affected. This Court in the

case of Vijendra (supra) held that mere dispatch of the report to the

accused is not a sufficient compliance with the requirement of sub-

section (2) of Section 13 and the report must be served on the

accused.

6. Perusal of the judgments of the learned Magistrate and Sessions

Court show that the clerk who dispatched the report was examined by
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the prosecution. Though the prosecution has relied upon the remarks

made by the Postman on the postal envelope, the Postman who has

allegedly made the said remarks was admittedly not examined by the

prosecution.

7. Rule 9B of the said Rules reads thus:-

“9B. Local (Health) authority to send report to
person concerned–The Local (Health) Authority
shall [within a period of ten days] after the institution
of prosecution forward a copy of the report of the
result of analysis in Form III delivered to him under
sub-rule (3) of rule 7, by registered post or by hand,
as may be appropriate, to the person from whom the
sample of the article was taken by the food
inspector, and simultaneously also to the person, if
any, whose name, address and other particulars
have been disclosed under section 14A of the Act:

Provided that where the sample conforms to the
provisions of the Act or the rules made thereunder,
and no prosecution is intended under sub-section
(2), or no action is intended under sub-section (2E)
of section 13 of the Act, the Local (Health) Authority
shall intimate the result to the Vendor from whom
the sample has been taken and also to the person,
whose name, address and other particulars have
been disclosed under section 14A of the Act, within
10 days from the receipt of the report from the
Public Analyst.”
More than one mode was prescribed by Rule 9B for serving the report

of Public Analyst on the accused. In the present case, after the postal

packet was returned, not even an attempt was made to personally

serve the report on the appellant.

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8. On the basis of endorsements of the Postman appearing on the

postal envelope containing the report, the High Court has recorded a

finding of refusal on the part of the appellant to accept the report. The

said finding is obvious erroneous as the endorsements on the postal

envelope were not proved by examining the Postman. Moreover, the

High Court has glossed over the mandatory requirement under sub-

section (2) of Section 13 of serving a copy of the report on the accused.

Evidence adduced by the prosecution was of mere dispatch of the

report. Hence, the mandatory requirement of sub-section (2) of

Section 13 was not complied with. Therefore, the conviction and

sentence of the appellant cannot be sustained.

9. Accordingly, the appeal is allowed. The impugned Judgment and

Order of the High Court dated 3rd May 2018 in CRR No. 303/2008 is

hereby set aside and by allowing the Revision Petition, the conviction of

the appellant is hereby set aside.

…………..…………………J
(AJAY RASTOGI)

…………..…………………J
(ABHAY S. OKA)
New Delhi;

October 29, 2021.



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