GANGA DIN Vs. STATE OF U P
LAWS(ALL)-1980-2-10
HIGH COURT OF ALLAHABAD
Decided on February 12,1980

GANGA DIN Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents


Cited Judgements :-

BRAJ BIHARI LAL VS. STATE [LAWS(ALL)-1980-11-69] [REFERRED TO]
KALLOO VS. STATE OF U.P. [LAWS(ALL)-1980-10-60] [REFERRED TO]


JUDGEMENT

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' rigorous imprisonment and a fine of Rs. 1000/-. His conviction and sentence have been maintained in appeal by the Sessions Judge Jalaun at Orai, hence this revision. A sample of cow milk was purchased by the Food Inspector at 8. 30 A. M. on 4-6-1977 from the accused applicant in accordance with the provisions, of law. One of the sample phials, which was sent for analysis to the Public Analyst, disclosed that it was deficient in non-fatty solids by 44%. After obtaining sanction the applicant has been prosecuted and convicted as above.
(2.)BOTH the courts below on consideration of the evidence on record and the circumstances of the case have held thai guilt of the accused established for the offence of adulteration.
Counsel for the applicant has vehemently argued that there has been non-compliance of section 13 (2) of the Prevention of Food Adulteration Act. Before the courts below it was stressed that: the non-compliance was confined to ike non-sending of the report1 of the Public Analyst and the intimation as required under section 13 (2) of the Act to the accused-applicant. It is also denied in his statement under section 313 CrPC. This contention was repelled by the courts below on consideration of the evidence on record both oral and documentary. The Food Inspector Sri Do-here (PW 1) had deposed that a copy of the report of the Public Analyst was seat to the accused from the office of the Chief Medical Officer and that along with it a copy of the intimation as required under section 13 (2) was also sent which is Ex. Ka-7 on the record. This statement of the Food Inspector was not challenged in the cross examination, as such the courts below were fully justified in accepting that the report and the intimation as required by section 13 (2), was in fact, sent to the accused- applicant after launching of the prosecution.

Counsel for the applicant has new challenged the compliance of section 13 (2) of the Act from a different angle. He submits that the name of the court as mentioned in Ex. Ka-7 is that of the Chief Judicial Magistrate Orai while the prosecution itself has been launched in the court of the Judicial Magistrate Orai. He has also submitted that the intimation Ex. Ka-7 was sent to the accused two days prior to the institution of the prosecution i. e. on 28th November, 1977.

(3.)I have very carefully considered the submissions as also the relevant material on record in connection therewith. It cannot be denied that the date on which the Chief Medical Officer has signed the intimation Ex. Ka-7 is 28th November, 1977. It also cannot be denied that the date on which the complaint has been received by the court of the Judicial Magistrate is 30th November, 1977. But it is significant to note that no question has been put in tie cross-examination to the Food Inspector to suggest that this intimation which was signed by the Chief Medical Officer on 28th November, 1977, was despatched to the accused-applicant on that very date and not a couple of days later. The statement of Food Inspector is that, both the intimation, as well as the report was sent to the accused. The accused appears to. be satisfied by mere denial of having received the same. He did not at all challenged that the report and the intimation was not sent subsequent to the launching of the prosecution, but was sent earlier. In the circumstances, I do not feel justified in holding that the intimation and the report of the Public Analyst was sent to the accused prior to the launching of the prosecution. Even assuming that they were sent two days earlier, the circumstances of the case justify an inference that there has been sufficient compliance of law.
With regard to the other aspect of the matter that the name of the count where the prosecution has been launched, has been incorrectly given in Ex. Ka-7, the position appears to be is that the complaint was received by the Judicial Magistrate as is clear from the order sheet on 30th Nov., 1977 and on that date the court took cognizance of the case and 4th March, 1978 was fixed for appearance of the accused. Summons were issued to the accused. In the meantime the case was transferred to the court of Chief Judicial Magistrate vide order on the record dated 17th February, 1978. No suggestion has been put in the cross examination of the witness to show that the applicant has in any manner been prejudiced by wrong description given in Ex. Ka-7 of the court concerned. Even on the appearance of the accused-applicant before the court of the Judicial Magistrate no application was made to that court that on the date when the prosecution was launched a wrong court had been mentioned in the Ex. Ka-7 as a result of which he could not make an application earlier for sending his sample for analysis to the Director of Central Food Laboratory Calcutta. As a matter of fact, the application which was made by the accused- applicant for sending a sample is dated 4th November, 78, that is almost about a year subsequent to the launching of the prosecution. Under section 13 (2) the accused is entitled to have the sample sent within a period of 10 days from the date of the receipt of the report of the Public Analyst and intimation sent therein. The Magistrate was, therefore, fully justified in rejecting this application which has been filed beyond time. No grievance was made before the trial court nor before the appellate court nor even in the grounds of revision filed before this Honourable court that the accused applicant has been in any manner, prejudiced or misdirected on account of the error having been crept in Ex. Ka-7 by intimating him that the prosecution was being launched in the court of the Chief Judicial Magistrate. A court of revision is not bound to interfere when the circumstances and the facts of the case clearly disclose that no prejudice at all has been caused to the accused, and when the court is convinced that the point is which now sought to be argued in revision is the result of a searching discovery made from the record of the case by the counsel concerned rather than upon the prejudice said to have been caused to the accused-applicant. In these circumstances I am not inclined to interfere with the impugned order passed by the courts below on the ground that the intimation u/Sec. 13 (2) of the Act has not been given to the accused in accordance with law. Even if due to any error a wrong court has been mentioned in Ex. Ka-7, that has not in any way prejudiced the applicant. As has already been held above, there has been substantial compliance of law. It For the reasons given above, I do not find any force in this revision application. It is hereby dismissed. Revision dismissed.

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