O.P.Pradhan - (1.) THIS revision by convict is directed against the order dated 1.12.1983. rendered by Sri P. C. Mathur Vth Additional Sessions Judge. Hardoi, whereby he dismissed Criminal Appeal No. 187 of 1983 and affirmed the conviction and sentence, recorded by Judicial Magistrate, Sandila in connection with an offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954.
(2.) BRIEFLY speaking, the facts giving rise to this revision are that on 31.5.1981, the Food Inspector. G.P. Saxena, P.W. 1, while he was going to obtain samples from milk vendors on Sandi road found the revisionist carrying about 55 Kg. milk in four containers for sale, towards Sandi. The Food Inspector purchased 660 Ml. buffalo milk on payment of price thereof, in the presence of Balram and Siya Ram. He divided the milk in three equal parts and after adding formalin of requisite strength, he filled up the milk in three dry and clean bottles and observed the formalities, required by law. One of the samples was sent to the Public Analyst for analysis. The Public Analyst reported on 7.7.1981 that the sample was deficient in fat and non-fatty solids by 17% and 23% respectively. After obtaining the sanction for prosecution from C.M.O., Hardoi, the Food Inspector instituted complaint in the Court of Judicial Magistrate, Sandila, Hardoi on 18.2.1962 for prosecution of the revisionist under Section 7/16 of the Prevention of the Food Adulteration Act. The intimation together with the copy of the report of the Public Analyst was sent by registered post to the revisionist on 2.3.1982. The learned Magistrate on a consideration of the evidence, adduced before him, found the revisionist guilty under Section 7 (1) and sentenced him under Section 16 (1) (a) to undergo six months R.I. and pay fine of Rs. 1000. in default, to undergo two months' R.I. Dissatisfied with this order of conviction and sentence, an appeal was carried to the Court of Sessions Judge, Hardoi. This gave rise to Criminal Appeal No. 187 of 1983. It was heard and dismissed by V Additional Sessions Judge, Hardoi, by means of the impugned order. Feeling aggrieved by the dismissal of his appeal. convict Raj Bahadur preferred this revision. I have heard the learned counsel for the revisionist as also the Additional Government Advocate and perused the lower court record. It has been urged on behalf of the revisionist: (i) that the revisionist did not receive the copy of the report of Public Analyst; (ii) that there was delay in the institution of the complaint resulting in depriving the revisionist to get the sample re-analysed at the Central Food Laboratory; and (iii) that the Food Inspector had no territorial jurisdiction over the area where he claims to have collected the sample of buffalo milk.
(3.) SO far as the first point raised on behalf of the revisionist is concerned, we have the oral evidence of Ibadullah P.W. 2 to show that the copy of the Public Analyst's report was sent together with the; memo of intimation Ex. Ka-10 to the revisionist by registered post on 2.3.1982. The presumption under law is that the revisionist must have received this intimation together with the copy of the report of Public Analyst. During his examination under Section 313, Cr. P.C, the revisionist has not denied the receipt of such intimation and the copy of the report of the Public Analyst. Even otherwise, his self-same denial, if any, would be of no help to him in the absence of positive material on record to show that the Public Analyst's report was not sent to him at all. Both the lower Courts have recorded a finding of fact on this score and I do not find any compelling reason to take a different view of the matter. Accordingly, the first point, raised on behalf of the revisionist, carries little force and is not sustainable. As to the second point, it has been urged on behalf of the revisionist that the sample of the milk was collected on 31.5.1981 and the report of the Public Analyst is dated 7.7.1981 but the complaint was filed in the Court on 18.2.1982. He further submitted that intimation together with the copy of the P.A.'s report was sent to the revisionist on 2.3.1982. Relying upon the cases reported in 1987 All India Prevention of Food Adulteration Journal 305- Duli Chand v. State of U. P. and 1989 (II) AWC 1369- Lallu v. State, it has been contended by the learned counsel for the revisionist that the sample of milk must have deteriorated by the time the complaint was instituted and in any case, the revisionist could hardly avail of the opportunity to get the sample re-analysed at the Central Food Laboratory. So far as this contention goes, it may be pointed out that in the case of Duli Chand v. State of U.P. (Supra), the report of the Public Analyst was sent on 4.5.1978 while the: complaint had been instituted on 5.4.1978. It was on a consideration of about a month's delay that it was held that the delay caused prejudice to the accused in making the application to the court for re-analysis. In my opinion, this reported case is clearly distinguishable on facts inasmuch as in the instant case before us, there was only a delay of 12 days in sending the copy of the report of the Public Analyst after the complaint had been filed in the court. As indicated earlier, the complaint was instituted on 18.2.1982 and the intimation together with the copy of the report of the Public Analyst was sent by registered post to the revisionist on 2.3.1982. Therefore, the case of Duli Chand is of no particular help to the revisionist. Regarding the case of Lallu v. State (supra), it is found from its perusal that the sample of milk was examined at Central Food Laboratory about 18 months after taking the sample. It has also been observed in the said case that if the necessary quantity of formalin is added to the milk, the sample retains its character and is capable of being analysed for a period of about ten months. The facts of Lallu's case (supra) are also distinguishable inasmuch as in the instant case, the sample was collected on31.5.1981 and the copy of the report of Public Analyst was sent by registered post to the revisionist on 2.3.1982 after the complaint had been instituted on 18.2.1982. Therefore not even den months' delay had occurred, what to speak of eighteen months' delay . Moreover, it was for the Central Food Laboratory to say after examining the sample whether it was fit or unfit for analysis. But the revisionist did not make any attempt to apply in the Court of learned Magistrate for sending the sample for re-analysis at the Central Food Laboratory, in the circumstances, he cannot be heard now to complain about the delay, if any. In this context it will be useful to cite the case of Tulsiram v. State of M. P., 1984 (4) SCC 487, where it was laid down by the Apex Court that if after receiving the Public Analyst's report, the accused never sought to apply to the Court to have the sample sent to the Central Food Laboratory, he may not be heard to complain of the delay in the receipt of the report by him, unless he is able to establish some other prejudice. The case of Tulsiram was followed with approval by the Apex Court in 1981 SCC (Crl) 912, Rajendra and others v. State of M. P. The learned counsel for the revisionist could not satisfy this court as to what prejudice, if any, was caused to the revisionist in consequence of the alleged delay in receipt of the report of the: Public Analyst. It was open to the revisionist to have the sample re-analysed and if the Central Food Laboratory declared the sample unfit for analysis, certainly it could be said that the revisionist had been prejudiced by the delay in sending the report of the Public Analyst. But the revisionist took no steps to get the sample re-analysed and therefore, the grievance of the alleged prejudice having been caused to the revisionist is not sustainable. The second point also is found untenable.;