YAMIN, J. - (1.) PETITIONER Laleng, after facing trial for offence under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred as `the PFA Act') before learned Chief Judicial Magistrate, Banswara was convicted and sentenced to one year's rigorous imprisonment with a fine of Rs. 2000/-and in default to undergo three months' rigorous imprisonment. He preferred appeal before learned Sessions Judge, Banswara which was dismissed. Hence this revision.
(2.) BRIEFLY stated, on 16. 7. 1982 Ramswaroop Sharma was the Food Inspector at Banswara. At about 10. 00 A. M. he checked the petitioner who was selling milk. He introduced himself to the petitioner and took sample of mixed milk for the purpose of analysis. He stirred the milk and poured it in three bottles. Formaline was added and then bottles were sealed. One of the sample bottles was sent to the Public Analyst. The sample was found adulterated. Sanction was obtained and then the complaint was filed. During the trial charge was read over to the accused petitioner who denied his indictment and claimed trial. Thereupon prosecution examined Ramswaroop Sharma PW-1 and Himmat Singh Rathore PW-2. Then the petitioner was examined under Section 313 Cr. P. C. After hearing both the parties learned Chief Judicial Magistrate convicted the petitioner sentenced him as stated above. I have heard the learned counsel for the petitioner as well as learned Public Prosecutor at length and have gone through the record. The settled position of law is that the evidence once appreciated by the trial court and reappreciated by Sessions Judge cannot be further reappreciated by High Court unless some glaring features are pointed out which might have caused injustice. Apex Court in latest judgment State of Kerala vs. Puttumana Illath Jathavedan Namboodiri etc. , (1), has held that the revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless and glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. Learned counsel for the petitioner submitted that the prosecution alleges that the report of the Public Analyst was forwarded to the petitioner vide Ex. P/10 which is dated 10. 8. 1992 by Local Health Authority but it was not received by the petitioner. My attention was drawn to the statement of PW-2 Himmat Singh Rathore who was the despatcher of the office of the Chief Medical and Health Officer on 10. 8. 1982. He stated that the letter Ex. P/10 bears the signature of Dr. Chaplot in between `a' to `b'. It was this witness who sent the report by registered post vide Ex. P/11. He further stated that the registered letter was not received back and acknowledgment was also not received back. Learned counsel, therefore, submitted that the copy of the report of laboratory was not received by the petitioner and it is a case of non-compliance of Section 13 (2) of the PFA Act. On the other hand, learned Public Prosecutor has submitted that it has not caused any prejudice to the accused petitioner as a presumption can be drawn under the General Clauses Act that the report reached the petitioner even if acknowledgment has not been submitted by the prosecution. According to the learned Public Prosecutor it is not a case of non-compliance of Section 13 (2) of the PFA Act.
(3.) THE relevant provision is that on receipt of the report of 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 person 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 14-A, 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. This provision lays down that a copy of the report will be forwarded to the accused after institution of the complaint. In this case complaint was submitted in the court on 9. 8. 1982 and as it appears from Ex. P/10 and statement of PW-2 Himmat Singh Rathore, copy was forwarded to the accused petitioner on 10. 8. 1982. THE question remained whether it reached the petitioner? PW-2 Himmat Singh Rathore stated that the copy was sent with letter Ex. P/10 by registered post. He has proved Ex. P/11. postal receipt. He has stated that the registered letter was not received back nor the acknowledgment was received. Learned counsel for the petitioner citing Bhanwarlal vs. State of Rajasthan (2), submitted that when it is not proved that the copy of the analysis report was delivered to the petitioner, it means that there was non-compliance of Section 13 (2) of the PFA Act as re-analysis of the sample could not be done and the petitioner was devoid of his valuable right. It may be stated that the facts in Bhanwarlal's case (supra) were different. It was proved beyond doubt that the report of the analysis was delivered to somebody else and not to the petitioner as Ex. P/11 in that case was sufficient to prove that the copy was delivered to somebody else and not to the petitioner. Thereafter no effort was made by the Local Health Authority to again sent the copy of the report to the accused or to give him within ten days. The facts are distinguishable from the facts of the present case, therefore, this citation does not apply. In the case before me the Local Health Authority sent the report of the analysis to the accused petitioner vide Ex. P/10 at the address which was given by the petitioner himself. The registered letter was sent and receipt Ex. P/11 was obtained. In similar circumstances this court in Doodha vs. State of Rajasthan (3), held that the only obligation that has been imposed by sub-section (2) of Section 13 of the Act is that Local (Health) Authority shall forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons from whom the sample of article of food was taken. The said obligation was discharged as the copy of the report was forwarded to the petitioner at the address given by him at the time when the sample was taken from him. The said obligation in the case in hand was discharged as soon as Local Health Authority sent the report to the petitioner. In such cases Section 27 of the General Clauses Act comes into play which provides that when any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression `serve' or either of the expression `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 post. Section 13 (2) of the PFA Act provides that the Local Health Authority shall forward the report in such manner as may be prescribed. The Rules prescribe that the report may be sent by registered post. So when the report was forwarded to the accused petitioner at the address given by him vide Ex. P/10 and vide post receipt Ex. P/11 by properly addressing, pre-paying and posting by registered post, it will be presumed under Section 27 of the General Clauses Act that the report was delivered in ordinary course of post to the petitioner. He has not proved contrary to it. Therefore, the argument of the learned counsel for the petitioner that the provision of Section 13 (2) of the PFA Act has been contravened, is not acceptable. ;