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State of M.P. Vs. Kalyanmal Agrawal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1985CriLJ733
AppellantState of M.P.
RespondentKalyanmal Agrawal
Cases ReferredMandsaur v. Ranglal
Excerpt:
.....remained satisfied by sending p. while so holding, the supreme court observed as under :the period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the report of the public analyst, for example, by making a request to the magistrate to send the other sample to the director of the central food laboratory for analysis. the law briefly stated is that the rule is directory and not mandatory ;and, hence, proof of prejudice in addition to noncompliance would be necessary to invalidate the act complained of......also prepared. thereafter, on 20-1-1978, one bottle of the oil was sent by registered post to the public analyst at bhopal and the other two bottles were sent to the district health officer, ambikapur. the report of the public analyst showed that the oil was adulterated and, hence the complaint as stated above, was filed.3. the learned judicial magistrate considered the complaint of the accused person that he had not been sent or given copy of the report of the public analyst as required by rule 9-a of the prevention of food adulteration rules, 1955, and, hence was denied his right, to challenge the result of the analysis. on the basis of the evidence on record, the learned magistrate held that it was not proved that the report of the public analyst was either sent or given to the.....
Judgment:

Gulab C. Gupta, J.

1. This is State's appeal Under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973, challenging the acquittal of the respondent by an order dated 27-11-1979, passed by Judicial Magistrate First Class, Baikunthapur, in Criminal Case No. 62 of 1978.

2. The prosecution case was that the respondent had sold adulterated ground-nut oil on 19-1-1978 to Ramsingh at Baikunthpur and has, thereby, committed an offence Under Section 7, punishable Under Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act'). It is alleged that Food Inspector Ramsingh (P.W. 3) inspected the shop of the respondent on the date of incident and purchased 375 grams of groundnut oil from him for a price of Rs. 3/-. The purchased ground-nut oil was put in three clean and empty bottles and sealed in accordance with rules. A Panchanama was also prepared. Thereafter, on 20-1-1978, one bottle of the oil was sent by registered post to the Public Analyst at Bhopal and the other two bottles were sent to the District Health Officer, Ambikapur. The report of the Public Analyst showed that the oil was adulterated and, hence the complaint as stated above, was filed.

3. The learned Judicial Magistrate considered the complaint of the accused person that he had not been sent or given copy of the report of the Public Analyst as required by Rule 9-A of the Prevention of Food Adulteration Rules, 1955, and, hence was denied his right, to challenge the result of the analysis. On the basis of the evidence on record, the learned Magistrate held that it was not proved that the report of the Public Analyst was either sent or given to the respondent as required by the Rules. It was also held that there was no compliance of Rule 18 of the above- mentioned Rules. On the basis of the above findings, the respondent was acquitted.

4. It was submitted on behalf of the complainant that the learned Judicial Magistrate has misread the evidence on record and has failed to take into consideration the postal receipt (Ex. P.5). Ex. P.5 is a chit purporting to be a postal receipt. It bears the seal of Sub-postmaster, Baikunthpur, Surguja, who has attested the same. Assuming that it could be treated to be the certified copy of a public document and admissible in evidence, yet it does not help the complainant. The receipt does not show as to what was despatched, who despatched it and to whom it was despatched. P.W. 4 D.P. Gupta, who has produced this document, has stated that it was a 'chit' given to him from the Office of the D.H.O., and, according to which, a registered letter No. 1506 was sent. This witness has not stated as to who sent the registered letter, what was sent in this registered letter and to whom it was sent. In the absence of these details, it is not possible to conclude that the report of the Public Analyst was sent to the respondent-accused person as required by law. In fact, this witness admitted in his cross-examination that the postal receipt showing despatch was available in the Office, but was not given to him. Reliance was, however, placed on the evidence of P.W. 3 Ramsingh (Para 13) who stated that he learnt from D.H.O. Office, Ambikapur, that a copy of the report was sent by that office to the respondent and its postal receipt number was 1506 dated 7-4-1978. This evidence is so vague in necessary particulars that it can lead to no conclusion of despatch or receipt of the copy of the report by the respondent-accused. The witness has not stated as to who gave him this information. This statement, at the most, would be his hearsay version and its admissibility would not be free from doubt. The report is required to be sent by registered post, for which a receipt is issued by the postal authorities/The receipt, according to witness D.P. Gupta, is available in the office, but was not produced. The contents of a document can best be proved by producing the document itself and oral evidence of the contents of such document cannot be looked into. However, in the instant case, the statement of P.W. 3 Ramsingh is so vague that even if it is held to be admissible it will not lead to any inference that the report was sent to the respondent-accused person. It can also not be forgotten that the D.H.O. himself was summoned to appear in the Court, but chose not to appear, The D.H.O. remained satisfied by sending P. W. 4 Gupta, whose evidence has been appreciated above. In view of this evidence, it must be held that the copy of the report of the Public Analyst was not sent to the respondent-accused person and there has been no compliance of Section 13(2) of the Act and Rule 9-A of the Prevention of Food Adulteration Rules, 1955.

5. It has yet to be seen if non-compliance with these provisions would be sufficient to warrant acquittal of the respondent. The answer to this question would depend upon a finding whether the provisions are mandatory or directory. In Nathusingh v. State of M.P., 1982 Jab LJ 805, this Court had the occasion to consider a similar question. In the said case the accused was held guilty of breach of Section 7(1) of the Act and sentenced to imprisonment for six months. The conviction and sentence were challenged on the ground that there was no compliance with the mandatory requirements of Section 13(2) of the Act and Rule 9-A of the Rules made thereunder. This Court noted its earlier two decisions in Shivlal v. State, Criminal Revision No. 92 of 1979, decided on 8th Feb. 1980 and Kanwarlal v. State of M.P. Criminal Revision No. 91 of 1979, decided on 20th Feb. 1980 and held that the provisions were mandatory. The revision was, therefore, allowed and conviction and sentence were set aside. A reading of this judgment, as recorded, shows that it was a case where a copy was not sent at all to the accused persons and, hence, they did not have any opportunity to challenge the result of analysis. After the aforesaid judgment, the matter received consideration of the Supreme Court in Balchand v. Municipal Corporation, Bhopal : 1983CriLJ448 . It was a case under Rule 9(j) of the Prevention of Food Adulteration Rules, 1955, which is more or less in the same term as the present rule, except for the period of 10 days prescribed therein. In the said case, the report of the Public Analyst was, no doubt, sent to the accused person, but it was not sent within 10 days as required by the rule. The question, therefore, arose if the said requirement was mandatory or directory. Dealing with the period prescribed in the rule, the Supreme Court held that it was not mandatory but was directory, and, hence, the result of the case would depend upon the case of the prejudice caused to the accused person. While so holding, the Supreme Court observed as under :

The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large.

The aforesaid sufficiently establishes the law on the point. The law briefly stated is that the rule is directory and not mandatory ; and, hence, proof of prejudice in addition to noncompliance would be necessary to invalidate the act complained of. But where the effect of non-compliance was such as to wholly deprive the right of the person to challenge the Public Analyst's report, there might be just cause for complaint as prejudice would then be writ large. Considering the law in the context of the aforesaid decision of the Supreme Court, this Court, in Tulsiram v. State, Criminal Revision No. 260 of 1983, decided on 16th Aug. 83 reported in 1983 FAJ 338 (Madh Pra), held that the word 'immediately' as appearing in Rule 9-A, was not a mandatory requirement. It was also held that Rule 9-A enjoins only the forwarding of the Public Analyst's report and nothing more. In case, the report has been forwarded, though not immediately, but within reasonable time, a delay of 18 days, as in the said case, in forwarding the report, would not invalidate the action. Tulsiram's case was also a case where a copy of the report had been sent after 18 days of the receipt of the same. It was not a case where the report had not been sent at all. Yet another decision of this Court in Food Inspector, Municipal Council, Mandsaur v. Ranglal 1982 MPLJ 520 : 1982 Cri LJ 2283, holds the provision directory. But in view of the decision of the Supreme Court quoted above, it does not lay down the correct law considering facts of the case. The decision of the Supreme Court would, however, be sufficient to invalidate the action in the instant case. In the instant case, the copy of the report had not been sent and, hence, the respondent-accused person did not get an opportunity to challenge the result of the analysis. The prejudice caused to the respondent-accused person is writ large. Under the circumstances, even if the rule is held to be directory as submitted by the learned Counsel for the appellant, non-compliance with the same was such as to wholly deprive the respondent-accused person of his valuable right to challenge the result of analysis. Under the circumstances, it must be held that acquittal of the respondent-accused person is in accordance with law and needs to interference.

6. The appeal fails and is dismissed.


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