@JUDGMENTTAG-ORDER
N.K. Gupta, J.@mdashThe applicant was convicted for the offence punishable u/s 7(1) read with 16(1)(a)(i) of the Prevention of Food
Adulteration Act, 1954 (hereinafter referred to as the ""P.F. Act"") vide judgment dated 24.4.1996 passed by the JMFC, Harda (Shri B.R. Patil) in
Criminal Case No. 165 of 1984 and sentenced for six months rigorous imprisonment with fine of Rs. 2000/-. In Criminal Appeal No. 56/1996 the
learned Additional Sessions Judge, Harda vide judgment dated 29.4.1999 dismissed the appeal. Being aggrieved with the aforesaid judgments
passed by both the Courts below the applicant has preferred the present revision. The prosecution''s case in short is that on 3.2.1994 at about
9:00 a.m. in the morning the Food Inspector C.P. Tiwari (PW 1) went to bus stand Timarni and he found that the applicant Narmada Prasad was
bringing a big can on his bicycle, having 8 ltrs. of buffalo milk. He told that the milk was to be sold in a hotel of one Ramashray. The Food
Inspector took a sample of 660 mlts. milk in a dry utensil. Price of the milk was paid. Thereafter, sample was divided into three parts and kept in
three dry, odorless and clean glass bottles. 18 drops of formalin was dropped in each of the bottle and thereafter, the bottles were closed by cork
and duly sealed. A paper slip issued by the Local Health Authority was also affixed on each of the bottles. Various memos were prepared. One
part of sample was sent to the public analyst whereas remaining parts were deposited with the Local Health Authority. The Public Analyst vide
report Ex. P/13 found that milk fat percentage was less and therefore, sample was adulterated. The prosecution''s sanction was obtained from
Deputy Director, Food and Drug Administration, Hoshangabad and a complaint was filed before the concerned Magistrate. A notice u/s 13(2) of
the P.F. Act was given to the applicant. Postal receipt of that notice was shown to be Ex. P/ 18 whereas A/D slip was submitted as Annexure
P/17.
2. The applicant abjured his guilt. He took a plea that he was taking the milk to his relative Bhaskar Kahar, he was not selling the milk. In defence
Ramadhar (DW 1) was examined.
3. After considering the evidence adduced by the parties the learned Judicial Magistrate First Class, Harda convicted and sentenced the applicant
as mentioned above. The appeal filed by the applicant was dismissed in toto.
4. I have heard the learned counsel for the parties.
5. The learned counsel for the applicant has raised only two grounds. Firstly, that no notice u/s 13(2) of the P.F. Act was given to the applicant
and secondly he was suffering the present trial, appeal and revision for more than 25 years and therefore, according to the order passed by
Hon''ble the Apex Court in the case of Braham Dass Vs. State of Himachal Pradesh, the applicant may not be sent to the jail again.
6. On the other hand the learned Panel Lawyer has submitted that a notice was duly given to the applicant and the acknowledgment slip Ex. P/17
was submitted by the witness M.L. Bhamore (PW 2) and therefore, there is no violation of the provisions of Section 13(2) of the P.F. Act.
Similarly, the provision of minimum sentence prescribed for the offence cannot be brushed aside.
7. After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that
the applicant does not challenge the procedure adopted by the Food Inspector in taking the sample. So far as the notice u/s 13(2) of the P.F. Act
is concerned, no copy of that notice is submitted before the trial Court. The clerk M.K. Bhamore (PW 2) has stated that a notice was prepared
and it was duly signed by the Local Health Authority and thereafter, he gave its dispatch number but no reason has been shown as to why the copy
of the notice was not submitted before the trial Court. According to the Chapter VI of the Indian Evidence Act if a document exists then it should
be proved by filing in original or in a way so that its primary evidence be adduced. Oral evidence is excluded for proving of the documents. It is
true that the clerk M.L. Bhamore (PW 2) had filed a postal receipt Ex. P/18 and acknowledgment slip Ex. P/17 but copy of the notice was neither
filed nor proved. Shri Bhamore could not submit the copy of the dispatch book kept by the Local Health Authority to show that by giving dispatch
number a notice u/s 13(2) of the P.F. Act was given or not. A letter if given to the applicant that a complaint has been filed then it would not be
sufficient to comply the provisions of Section 13(2) of the P.F. Act. Clear cut information is to be given to the accused that a copy of the report
given by the public analyst is annexed with the notice and the accused is entitled to file an application to get his sample examined by the Central
Food Laboratory. Shri Bhamore could not inform to the Court as to whether copy of the report given by the Public Analyst was annexed with the
notice or not, or whether the accused was intimated that he was entitled to get his sample examined from the Central Food Laboratory. Oral
evidence given by the witness Shri Bhamore is not sufficient to prove the notice u/s 13(2) of the P.F. Act. If his oral evidence is accepted in
absence of the document i.e. office copy of the notice and, if it is read then still it does not indicate that whether notice was annexed with the report
of the public analyst or not and as to whether an intimation was given to the applicant that he was entitled to get his sample examined from the
Central Food Laboratory.
8. On the basis of the aforesaid discussion, it would be apparent that though a postal receipt and an acknowledgment slip were produced before
the trial Court but it is not proved beyond doubt that compliance of the provisions of Section 13(2) of the P.F. Act was done by the Local Health
Authority. The sample was taken on 3.2.1984 whereas the applicant appeared before the trial Court for the first time on 15.1.1985 i.e. after 11
months and therefore, at that time the effect of the preservative must have been extinguished and the applicant was deprived of the right given by
the Section 13(2) of the P.F. Act. Hence the violation of Section 13(2) of the P.F. Act was fatal in the present case and therefore, the applicant
could not be convicted for an offence of adulteration.
9. On the basis of the aforesaid discussion, it is apparent that the right accrued to the applicant u/s 13(2) of the P.F. Act was denied by the
prosecution and therefore, the trial Court as well as the appellate Court have committed an error of law in convicting the applicant under 7(1) read
with 16(1)(a)(i) of the P.F. Act. Under such circumstances, it is a fit case in which an interference is required from the side of this Court by way of
a revision.
10. Consequently, the revision is allowed. The conviction as well as the sentence directed for offence punishable under Sections 7(1) read with
16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 is hereby set aside. The applicant is acquitted from the aforesaid charge. He would
be entitled to get the fine amount back, if he has deposited before the trial Court.
11. The applicant was on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand
discharged. Copy of the order be sent to the appellate court as well as the trial Court along with their records for information and compliance.
