P.N.Bakshi - (1.) THE applicant has been convicted under section 7/16 of the Prevention of Food Adulteration Act and sentenced, to 6 months' RI, and a fine of Rs. 1000/-. His conviction and sentence have been maintained in appeal by the Sessions Judge, Bijnor. Hence this revision.
(2.) I have heard learned counsel for the applicant and have also perused the: impugned orders. I have carefully scrutinized the record of the case. Very briefly stated the prosecution story is that the Food Inspector purchased a sample of buffalo milk from the accused applicant on 31st October, 1977, at 9. 20 A. M. in Chhota Bazar Seohara. The applicant was then carrying 12 Kgs. of buffalo milk in a Can on his Cycle. The sample was taken in accordance with the procedure prescribed by law after payment of its price. One of the sample phials was sent for analysis to the Public Analyst, whose report disclosed that it was deficient in non-fatty solids by 17 per cent, judged from the standard of buffalo milk. After obtaining sanction, the applicant has been prosecuted and convicted as above. Learned counsel for the applicant has argued that the copy of the report of the Public Analyst accompanied by an intimation, as envisaged under section 13 (2) of the P. F. Act was not received by the applicant and therefore, he has been seriously prejudiced inasmuch as he could not get the sample re-analysed by the Director Central Food Laboratory under section 13 (2) of the said Act. I have perused the statement of Ram Adhar PW 2 who was a clerk in the office of the Chief Medical Officer. He has deposed that a copy of the report of the Public Analyst no. 31434 dated 14th December, 77 along with a letter dated 13-2-78 was sent by registered post to the accused applicant Kalwa. From the scrutiny of his statement, it is clear that the applicant was speaking after consulting the register showing the despatch of letter from the office of the CMO. In cross-examination, the witness has also reiterated that he has personally sent this letter by registered post. Counsel for the applicant has submitted that the mere sending of a letter by registered post does not absolve the prosecution of its further duty of proving that the letter including the report of the Public Analyst was received by him. In this connection it would be pertinent to refer to Section 13 (2) of the P. F. Act which requires that after the institution of the prosecution, a copy of the report of the Public Analyst along with an intimation shall be forwarded to the accused in such manner as may be prescribed. Rule 9-A framed under the Act is to the following effect: "Local (Health) Authority shall immediately 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 R. 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 has been disclosed under section 14-A 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 (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom name, address and other particulars have been disclosed under section 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst."
(3.) READING section 13 (2) and Rule 9-A of the Act, together the inference seems to be inevitable that the duty which has been cast upon the local authority is to forward a copy of the report of the result of analysis along with an intimation, by registered post or by hand to the persons, from whom the sample has been taken. A letter, sent under registered post is presumed to have been received by the addressee. It is true that this presumption is hot irrebuttable but so far as the prosecution is concerned, the burden cast upon it under law would be deemed to have been discharged as soon as the report and the intimation are sent under registered cover. In the instant case, it appears that an Acknowledgment Due Form also accompanied the registered letter sent to the accused, but the A. D. form has not been received back. This is admitted by the clerk of the office of the Chief Medical Officer. The applicant's counsel has argued that, because the A. D. Form has not been returned back, therefore, this court should accept the. statement of the accused, made under section 313 CrPC, that he has not received the copy of the report and the intimation. In my opinion, it is not possible to come to this conclusion. There was nothing to prevent the legislature from incorporating in the rules, a further condition that the registered letter should be sent accompanied by an A. D. Form. This clearly indicates that the burden cast upon the prosecution would be discharged as soon as a letter under registered post is forwarded to the accused, of course correctly addressed, containing the report and the intimation. If the accused wishes to challenge this fact, it is open to him to lead evidence in rebuttal. It has not been done in the instant case. His mere statement under section 313 CrPC, is in my opinion not sufficient to disbelieve; the actual sending of the report and the intimation from the office of the C. M. O., as required under section 13 (2) of the P. F. Act. In the instant case, there is sufficient evidence on the record to come to the conclusion that the report and intimation were in fact, forwarded to the accused-applicant and it must, in the ordinary course, have been received by him. To repeat again, in the absence of any evidence to the contrary such an inference is not only justified on facts but also in law. The next point argued by the applicant's counsel is that milk which was taken by the accused was to be consumed by his ailing son who was under the treatment of Dr. Gautam Bahadur. I have perused the statement of the Doctor. He has nowhere stated that he directed the accused to bring milk diluted with water so as to make it consumable by the patient. As a matter of fact, the applicant was carrying a can containing 12 Kgs. of milk. Surely this quantity could not be meant for consumption of an ailing son in hospital. For this reason it is not possible to accept the defence theory set up by the accused.;