1. This appeal is directed against the judgment and order dated 10.9.79 passed by the learned Magistrate, First Class, Cuttack, in 2(c) C. C Case No. 171 of 1978/Trial No. 117 of 1979 acquitting the accused-respondent of the charge under section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (for short, 'the Act') read with section 7 thereof.
2. A brief narration of the facts leading to the present appeal is that on 6. 4. 1978 at about 11 a. m., the Food Inspector of Cuttack Municipality [P. W. 1] inspected the shop of the respondent at Buxi-bazar, Cuttack town, in the name and style of 'New Calcutta Sweets'. At the time of inspection, the respondent being the proprietor of the shop was present. During his inspection, P. W. 1 suspected adulteration of the stock of 'sweet cow curd' and 'Kamala Bhog' which were kept exposed for sale for human consumption. He served a notice on the respondent disclosing his intention to purchase the said articles for chemical analysis by the Public Analyst. He accordingly purchased 600 grams of cow curd and 1500 grams of Kamala Bhog' on pay. merit of the price of Rs. 4.20 Paise and Rs. 18/. respectively. The sample collected was divided into three equal parts and kept in clean, dry. empty and neutral glass bottles. Each bottle was packed, sealed and labelled properly. The paper slips signed by the Local Health Authority were affixed on each 'bottle with thread and gum. The signature of the respondent was taken on each bottle. P. W. 1 sent one bottle of each article to the Public Analyst, Government of Orissa, Bhubaneswar for chemical analysis. In accordance with the rules, the other two sample botcles of each article were deposited with the Chief District Medical Officer, Cuttack. The Public Analyst reported that the sample of 'Kamala Bhog' was adulterated but the sweet curd conformed to the standard. Thereafter on obtaining necessary sanction from the appropriate authority P. W. 1 submitted the prosecution repot against the respondent under the aforesaid provision of law-
3. The respondent pleaded not guilty to the charges. His plea was his one of denial of the prosecution story.
4. The prosecution examined 3 witnesses in support of its case.
5. It is seen from the impugned judgment that two contentions among others were raised by the defence before the trial court. They-are:-
(1) There was non-compliance by the prosecution of the provision of section 13(2) of the Act.
(2) The report (Ext.8) of the Public Analyst was not sent to the respondent immediately after the institution of the case on 24.6.78 as required under Rule 9-A of the Rules framed under the Act.
The learned trial court did not accede to the contentions raised on these grounds. However, the trial court passed the order of acquittal solely on the ground that although Ext. 8 shows that the sample of 'Kamala Bhog' was adulterated, it did not record a finding on chemical analysis that the said article was injurious to health.
6. Mr. P.K. Dhal, the learned counsel appearing for the respondent has not found sufficient strength to hang his argument in support of the order of acquittal to the peg of ground of acquittal recorded by the trial court. So he has not advanced his arguments supporting the reasons given by the trial court and side- tracking that reason he submits that Ext. 8 . which is the report of the Public Analyst was not received by the respondent after the institution of the case on 24.6.78. He further submits that even assuming that Ext. 8 was sent to the respondent on 16.6.78 as an annexure to the notice Ext. 13. it would not be in compliance with Rule 9-A of the Rules.
It is found from the evidence of the Sanitary Inspectotr, P.W.2, that on 13.6-78 the office of the Chief District Medical Officer sent a copy of the report No. 1.99/78 (Ext. 8) of the Public Analyst by registered post to the respondent underr forwarding letter no. 2660 (Ext. 13) This witness has also,proved Ext. 14 which is the relevant entry in the Despatch Register to show that Ext. 8 was sent to the respondent under receipt no. 1459 dated 16. 6. 78.
Rule 9-A so far as relevant is quoted hereunder: '9-A. Local (Health) Authority to send report to persons concerned:
The Local (Health Authortiy 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 Rule 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 have been disclosed under Section 14A of the Act :
Provided that xx xx xx' Mr. Dhal submits that Rule 9.A requires that the report of the Public Analyst is to be sent to the accused after the institution of the prosecution. The purpose of this provision is to enable the accused to approach the Court with an application within ten days from the date of receipt of the copy of the report of the Public Analyst for sending the sample of the article of food kept by the Local Health Authority Under Section 13(2) of the Act for analysis by the Central Food Laboratory. Mr. Dhal contends that this being a mandatory provision should have been' complied with by the prosecution and as this provision has not been complied wjth, the respondent was prejudicially affected and as such the prosecution was not sustainable. Even assuming that the report of the Public Analyst was sent to the respondent on 16. 6. 78, the counsel submits, he would have received the same only prior to the institution of the prosecution which is clearly against the mandatory provision of Rule 9-A,
From the evidence of P. W. 2 it is seen that Ext. 8 was sent to the respondent from the office of the Chief District Medical Officer on 16. 6. 78 by registered post. It is not the case of the respondent that he did not receive the report Ext. 8. The only grievance made by him is that it was not sent after the institution of the prosecution.
After going through the entire record of the case, I do not find a whispar of grievance having been made before the trial court by the respondent in this regard. Further, there is a catena of decisions of various High Courts, namely, 1983 F. A. J., 338 (Tulsiram v. State of Madhya Pradesh) and 1933 F. A. J., 311 (The State of Himachal Pradesh v. Inder Jeet) where, while considering the impact and content of Rule 9-A and section 13(2), it has been held that such provisions are not mandatory but directory. The only question is whether the accused has been any way prejudiced for the non-compliance. In 1982 F.A.J. 655 (Dhalchand v. Municipal Corporation, Bhopal and Anr.,) the Supreme Court considered the question of Rule 9 (J) as it obtained prior to the insertion of Rule 9-A and which is almost in pari materia with Rule 9-A.
Rule 9 (J) is quoted hereunder for conveniece of reference:
'9. Duties of Food Inspector :-
It shall be the duty of the Food Inspector-
(a) to (i)
XX XX XX XX XX(j) to send hy registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provision of the Act or Rules made thereunder, then the person may be informed of the same and report need not be sent. '
It was held by the Supreme Court that Rule 9 (j) is not mandatory but only directory.
As I have observed above, the respondent did not make any grievance that because he received the report of the Public Analyst Prior to the institution of the prosecution, he was prejudiced in his defence as he could not apply to the court for sending the sample to the Central Food Laboratory for chemical analysis as provided Under Section 13(2) of the Act. Ext. 13, which is the lettar of the Local Health Authority ( Chief District Medical Officer) forwarding the report of the Public Analyst to the respondent reads as follows :-
'I am sending herewith the analysis report no. 199/78 of the sample of 'Kamala Bhog' collected by Sri G. H. Panda, Food Inspector, Cuttack Municipality, on 6. 4. 78 for favour of your information and if so desired, you may make an application to the court of S. D. J. M., Cuttack within a period of 10 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.'
Ext. 13 clearly indicates that the respondent was given notice that he was entitled to avail the provision of section 13(2).
The learned counsel for the respondent submits that there is no presumption of receipt of Ext. 8 by the respondent. In that context, the learned counsel refers to a decision of this Court in Bhagaban Dash Agarwalla v. State of Orissa, 49 ( 1980 ) C. I. T., 317. where it has been held that it is the duty of the prosecution to establish that a copy of the report of the Public Analyst had been supplied to the accused. There cannot be any presumption of such supply under law. I think there is no dispute in the proposition laid down in the aforesaid case. But in the case in hand it is not a case of no evidence. It has been proved by the evidence of P. W. 2 that the report Ext. 8 was sent to the respondent by registered post under receipt no. 1459 dated 16. 6. 78 by the office of the Chief District Medical Officer. So in such a case unless the respondent makes a grievance before the trial court regarding the non-receipt of the report to his prejudice, he cannot be heard to make a grievance on that score in this Court. I do not find. any merit in the contention raised by the learned counsel.
Accordingly, it is rejected.
7. No other point has been urged.
8. Now let me consider the reason recorded by the trial court in passing the order of acquittal.
I think, the learned trial court went wrong in passing the order of acquittal solely on the ground that the Public Analyst did not record in his report Ext. 8 that the sample of 'Kamal a Bhog' was injurious to public health although he gave a finding that the sample was adulterated. Such a contention is no longer res integrad after the decision of the Supreme Court in Sharif Ahmed v. State of Uttar Pradesh A. I. R. 1979 Supreme Court, 1917. In the above case it was submitted that the sentence imposed upon the petitioner for the offence Under Section 7 read with section 16 of the Prevention of Food Adulteration Act must be reduced because the adulterant, namely, prohibited coal-tar dye, is, in his submission, non-injurious or innocent mix. It was also pointed out that the High Court had observed that the colour which was mixed with powdered chillis' is not mentioned in the Public Analyst's report to be injurious to health.' These contentions were repelled by their Lordships of the Supreme Court in the following categorical ruling :
'It does not follow that because it is not specifically mention-ed to be injurious, it is non-injurious. Absence of evidence is not equal to evidence of absence. For aught we know, the prohibition under the Act 'and the Rules has been imposed because it is harmful to human health. It is true that the High Court has, under a misconception, reduced the sentence, but we cannot be pressurised further into following the wrong path.'
9. For the reasons stated above, I am of confirmed opinion that the order of acquittal cannot stand. Accordingly, the order of acquittal is set aside and the respondent is convicted Under Section 7 read with section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. He is sentenced to the minimum of six months' R. I. and a fine of Rs. 1,000/. (one thousand).
10. In the result, the appeal is allowed.