RAJENDRA AND TWO OTHERSversusSTATE OF MADHYA PRADESH

                    RAJENDRA AND TWO OTHERS
A
                                v.
                    STATE OF MADHYA PRADESH
                           JULY 18, 1991

    [A.M. AHMADI, V. RAMASWAMI AND M.M. PUNCHHI, JJ.]
                                                                                ...
B
          Prevention of Food Adulteration Act, 1954/ Prevention of Food
    Adulteration Rules, 1955: S. 7 r/w s. 16, s. 13(2)/rr. 7(3), 9A:-Food
    adulteration-Food article found adulterated-Delay in analysis report
    -Local Health Authority not sending 'immediately after prosecution'
    the report to appellants-Acquittal by trial Magistrate-High Court
    recomputed the period and found the report sent within prescribed
c   period-Order of conviction and six months' imprisonment with fine
    awarded to each appellant-Validity of.
          Non-compliance of r. 9-A not fatal-Word 'immediately' inter-
    preted to convey 'reasonable despatch and promptitude'.
D         Partnership concern: Food adulteration-Food article sold by
    shopkeeper found adulterated-Alleged partnership of three brothers-
    Burden of proof of partnership on the prosecution-benefit of doubt
                                                                                  ).
    given to remaining two appellants.

          Appellant No. 1 was found exhibiting and offering for sale tea
E   dust. P. W. 1, the Food Inspector purchased tea dust in the requisite
    quantity for test. Appellant no. 1 told P.W. I that the shop which was
    being run by him was a partnership concern of the three brothers-
    appellant no. I to 3. On receipt of Public Analyst's report, prosecution
    was launched against the appellants under s. 7 read with s. 16 of the
    Prevention of Food Adulteration Act, 1954.                                   ./
F
        Before the trial Magistrate the facts regarding sale by appellant
  no. 1 of the food article and the same being adulterated as reported by
  the Public Analyst were not disputed. The appellants however, argued
  that the Public Analyst did not send the report within the period pre-
  scribed under r. 7(3) Prevention of Food Adulteration Rules, 1955 and
G the Local Health Authority did not forward the copy of the result of the
  analysis to the appellants 'immediately' after institution of the prosecu-
  lion as envisaged by r. 9A. Since there was a delay of nearly a month on
  that count, the trial Magistrate viewed this lapse as fatal to the prosecu-
  lion. He also held that in the covering letter while sending the report, it
  was not mentioned that the appellants had a right to have analysed the
H second  sample by the Central Food Laboratory in terms ofs. 13(2) of the

                                       96
                            RAJENDRA v. STATE OF M.P.                         97

      Act. He, therefore, acquitted the appellants.
                                                                                    A
           On appeal by the State, the High Court reversed the order of
      acquittal. It convicted the appellants and sentenced each of them to six
~     months' rigorous imprisonment and to pay a fine of Rs.5000 each.
      Aggrieved the appellants preferred the appeal by special leave to this
      Court.                                                                   B

            On consideration of evidence regarding guilt of all the appellants
      and requirements of s. 13(2) of the Prevention of Food Adulteration
      Act, 1954 and rr. 7(3) and 9A of the Prevention of Food Adulteration
-     Rules, 1955,

            Disposing of the appeal, this Court,
                                                                                    c

             HELD: 1. In the instant case, there was no basis to sustain the
      conviction of appellants no. 2 and 3. There was no evidence worth the
      name to conclusively prove their complicity beyond reasonable doubt.
      The only case set up by the prosecution against these appellants was D
      that appellant no. 1 was alleged to have told the Food Inspector that the
-'.   shop was being run in partnership by him with his these two brothers.
      Appellant no. I alone made the sale in question to the Food Inspector.
      Burden was on the prosecution to prove the existence of partnership.
      Even if the Food Inspector is believed that appellant no. I told him that
      the shop was being run in partnership, that per se was not enough to E
      inculpate the remaining two appellants without further evidence. There
      is an area of doubt in this sphere and extending the same to appellants
      no. 2 and 3, they are acquitted. [lOOG-H; IOIA-B]

'           The case of first appellant stood singled out. His conviction was
      well deserved, which should be maintained and the sentence confirmed.         l
      However, fine was to be reduced to Rs.1,000. [IOIC]

             2. The expression 'immediately' in r. 9A of the Prevention of
      Food Adulteration Rules, 1955, is intended to convey a sense of con-
      tinnily rather than urgency. What must be done is to forward the report
      at the earliest opportunity, so as to facilitate the exercise of the statu-   G
 .,   tory right under s. 13(2) in good ar.d sufficient time before the prosecu-
      lion commences leading evidence. Non-compliance with r. 9-A is not
      fatal. It is a C}Uestion of prejudice. The word 'immediately' was to he
      interpreted to convey 'reasonable despatch and promptitude' intending
      to convey a sense of continuity rather than urgency. The High Court
      was right in holding that failure. to send instantly a copy-0f the analysis   H
    98                    SUPREME COURT REPORTS             [1991) 3 S.C.R.

A   reportto the appellants was of no consequence. [lOOA-F)

          Tulsiram v. State of Madhya Pradesh, [1984) 4 SCC 487, relied on.

          3. On the question of compliance of r. 7(3) in regard to the period

B
    o• submission of the I"eport by Public Analyst to the Local Health
    Authority, the High Court's conclusion, reached by it after recomput-
                                                                                "'
    ing the period, that such duty was performed within the prescribed
    period was a finding of fact and nothing was addressed before this
    Court in that regard. [99G-H; IOOA)

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                            .~



c   No. 168 of 1991.

         From the Judgment and Order dated 26. 7. 1989 of the Madhya
    Pradesh High Court in Cr!. A. No. 102 of 1984.

          G.I... Sanghi and A.K. Sanghi for the Appellants.
D
          U.N. Bachawat and Uma Nath Singh for the Respondent.

          The Judgment of the Court was delivered by

         PUNCHHI, J. This appeal by special leave is against the judg-
E   ment and order of the Indore Bench of the Madhya Pradesh High
    Court rendered in Criminal Appeal No. 102 of 1984.

          The facts are few and simple. The first appellant Rajendra, on
    30th June, 1982, while running a shop under the name and style of
    M/s. Kumarvad Bros. in Khargaon Municipality, was found exhibiting          /
F   and offering for sale tea dust, the quanuty of which was about 1 1/2
    kgs. D.P. Nath, P.W. I, the Food Inspector for Khargaon purchased
    tea dust in the requi,ite quantity for test. The purchased tea was dealt
    with in the prescribed manner as per rules on the subject. The purch-
    ase and other attendant documents were witnessed by Madan, P.W. 2
    and another.
0
        The Public Analyst, Bhopal, to whom one of the three samples
  was sent for analysis opined that the food article fell below the pre-        '(

  scribed standard as its contents were present in quantities not within
  the prescribed limits of variability. The report of the Public Analyst
  was communicated to the first appellant as well as to his two brothers,
H the second and third appellants, because it appears that at the time of
              RAJENDRA v. STATE OF M.P. [PUNCHHI, J.]                99

the sale of the tea to the Food lnspecmr, he was told by the first
                                                                          A
appellants that the court's intervention could be sought to have one of
three brothers. The accompanying covering letter suggested to the
appellants that the court's intervention could be sought to have one of
the samples kept by the Local Health Authority examined one more
time. The appellants did not avail of the opportunity and faced the
prosecution launched under section 7 read with section 16 of the Pre-     B
vention of Food Adulteration Act, 1954 before the Chief Judicial
Magistrate, Khargaon.

      Before the Trial Magistrate the facts as alleged by the prosecu-
tion regarding sale by the first appellant to the Food Inspector and of
the article of food being adulterated as per report of the Public Analyst C
were not disputed. Shelter, however, was taken behind the provisions
of Rules 7(3) and 9-A of the Prevention of Food Adulteration Rules,
1955, as then standing, whereunder the Public Analyst was required to
send his report to the Local Health Authority within 45 days, which he
had not done, and the Local Health Authority was required to
'immediately' after the institution of prosecution forward a copy of the D
report of the result of the analysis to the appellants. Since there was a
delay of nearly a month on that count the Trial Magistrate viewed this
lapse as fatal to the prosecution. Furthermore, the Trial Magistrate
took the view that in the covering letter while sending the report,
nowhere had the appellants been told that they had a right to have
the second sample with the Local Health Authority analysed by the E
Central Food Laboratory in terms of section 13(2) of the Act. The
Trial Magistrate perhaps had in mind that had this been mentioned,
the appellants may have chosen to avail of the opportunity of the
analysis by the Central Food Laboratory and such report would have
superseded the report of the Public Analyst, whether for or against the
appellants. On these two grounds the learned Trial Magistrate F
recorded acquittal of the appellants. The High Court on appeal by the
State of Madhya Pradesh, reversed the Order of acquittal and
recorded conviction of the appellants and sentenced each one of them
to six months' rigorous imprisonment and to pay a fine of Rs.5000
each. This has occasioned the appeal before us.
                                                                           G
      Our attention was brought to the aforesaid rules and section
13(2) of the Act and the case law on the subject. Rule 7(3) requires
that the Public Analyst shall within a period of 45 days of the receipt of
any sample for analysis, deliver to the Local Health Authority, a
report of the result of such analysis in Form IIL The Trial Magistrate
found that this duty was not discharged by the Public Analyst within H
    100                   SUPREME COURT REPORTS             [1991) 3 S.C.R.

A   the prescribed period of45 days. The High Court, however, recom-                  ~
    puted the period and came to the conclusion that such duty was
    performed within the prescribed period. That finding is one of fact and
    nothing has been addressed to us in that regard. So far as the Local
    Health Authority being req uir~d to 'immediately' after the institution      ,_
    of prosecution send a copy of the report of the result of the analysis in
B   Form III, its failure to do so instantly was held to be of no conse-
    quence, relying on a judgment of this Court in Tulsiram v. State of
    Madhya Pradesh, [1984) 4 SCC 487 wherein the word 'immediately'
    was interpreted to convey 'reasonable despatch and promptitude'
    intending to convey a sense of continuity rather than urgency. This
    Court then ruled at page 497 as follows:
c               "The real question is, was the Public Analyst's report sent
                to the accused sufficiently early to enable him to properly
                defend himself by giving him an opportunity at the outset
                to apply to the court to send one of the samples to the
                Central Food Laboratory for analysis. If after receiving the
D               Public Analyst's report he never sought to apply to the
                court to have the sample sent to the Central food Labora-
                tory, as in the present case, he may not be heard to comp-
                lain of the delay in the receipt of the report by him, unless,
                of course, he is able to establish some other prejudice. Our
                conclusions on this question are: The expression 'immedia-
E               tely' in Rule 9-A is intended to convey a sense of continuity
                rather than urgency. What must be done is to forward the
                report at the earliest opportunity, so as to facilitate the
                exercise of the statutory right under section 13(2) in good
                and sufficient time before the prosecution commences
                leading evidence. Non-compliance with Rule 9-A is not             /
F               fatal. It is a question of prejudice."

    Tulsiram's case was thus a complete answer to the contention to
    contrary.

          The next question which requires consideration is whether all the
G   appellants are guilty of the crime. From the material available on the
    record, we find no basis to sustain the conviction of the second and
    third appeJ.Iants, Om Prakash and Subhash. There is no evidence
    worth the name to conclusively prove their complicity beyond reason-
    able doubt. The first appellant is alleged to have told the Food
    Inspector on the date of sale of tea dust that the shop was being run in
H   partnership by him with his two brothers. This was the only case set up by
              RAJENDRA v. STATE OF M.P. {PUNCHHI, J.]               101

the prosecution at the trial. No evidence was gathered or tendered to A
prove the partnership. On the ··facts, which are eloquent, the ·first
appellant alone made the sale of tea dust to the Food Inspector and not
all. Burden was on the prosecution to prove the existence of the part-
nership. We do not propose to indulge in the refinery of civil law but
have to adopt the cautious approach to adjudge criminality of the
accused appellants. Even it the Food Inspector is believed that the first 8.
appellant told him that the business on the shop was being run in
partnership that per se was not enough to inculpate the remaining two
appellants without further evidence·: We find an area of doubt in this
sphere and extending the same to the second and third appellants
order their acquittal. They be discharged from their bail bonds. Fine,
if paid, be refunded to them.                                             c
      The case of the first appellant stands singled out. His conviction
was well deserved which is hereby maintained confirming the sentence
of imprisonment but reducing the fine to Rs.1000, in default of pay-
ment of which further rigorous imprisonment for one month is
ordered. He shall surrender to his bail bonds. The excess fine, if paid,   D
be refunded to the first appellant.

     As a result the.appeal of appellants 2 & 3 is allowed and that of
appel)ant no. 1 dismissed, subject, however to the reduction of
sentence.

R.P.                                                App~al disposed of.