VIJENDRAversusSTATE OF UTTAR PRADESH

790                       [2019]
               SUPREME COURT     10 S.C.R. 790
                              REPORTS                     [2019] 10 S.C.R.


A                                 VIJENDRA
                                        v.
                        STATE OF UTTAR PRADESH
                       (Criminal Appeal No. 1167 of 2019)
B                                JULY 31, 2019
               [R. BANUMATHI AND A. S. BOPANNA, JJ.]
            Prevention of Food Adulteration Act, 1954:
             ss. 7(1)/16(1)(a)(i),10(7) and 13(2) – Notice by Food Inspector
C     (Complainant) suspecting adulteration in the milk – Sample of milk
      purchased by complainant in the presence of public witness (PW3)
      – Sample sent to Public Analyst – Sample was found adulterated
      by the Public Analyst – Complaint filed before Magistrate – Report
      of the Public Analyst sent to the accused by registered post after 19
      days of filing the complaint – During trial PW3 turned hostile –
D
      Plea of non- compliance of ss. 10(7) and 13(2) taken – The
      Magistrate, the appellate Court as well as High Court convicted
      the accused – Appeal to Supreme Court – Held: Safeguard u/s.
      13(2) is a valuable right – No evidence was brought on record to
      indicate that the report of the Public Analyst was actually served or
E     delivered to the appellant – Despite the delay beyond 10 days from
      the date of initiation of prosecution, even if despatch of the report
      is taken as substantial compliance, in absence of proof of delivery
      of the report, the right of the accused to seek reference within the
      period of ten days stands defeated – The provision u/s. 13(2) has
      to be construed strictly, as the accused is made to suffer penal
F
      consequences – Therefore, report of Public Analyst cannot be made
      basis for holding the accused guilty – The uncorroborated testimony
      of the complainant/Food Inspector (PW1) cannot be relied upon to
      sustain the conviction – Thus, the prosecution has not proved the
      guilt of the accused beyond reasonable doubt – Therefore,
G     conviction is not justified – Prevention of Food Adulteration Rules,
      1955 – r. 9B.
            Allowing the appeal, the Court
            HELD : 1. While adverting to the provision in Section 13(2)
      of Prevention of Food Adulteration Act, 1954, requiring to furnish
H
                                       790
          VIJENDRA v. STATE OF UTTAR PRADESH                            791


the report of the Analyst to the accused as contemplated therein,       A
all the three Courts have taken note of the evidence of PW-2 the
Food Clerk who claimed to have despatched the report by
registered post on 07.04.1980. They have, however, failed to
take note that no evidence was brought on record to indicate
that the report which is claimed to have been despatched was
                                                                        B
actually served or delivered to the appellant. The very purpose
of furnishing such report is to enable the accused to seek for
reference to the Central Food Laboratory for analysis if the
accused is dissatisfied with the report. Such safeguard provided
to the accused under Section 13(2) of the Act is a valuable right.
In that view even if the despatch of the report on 07.04.1980 is        C
taken as substantial compliance though it is beyond the period of
10 days from 18.03.1980 i.e., the date on which the prosecution
was lodged, in the absence of there being proof of delivery of the
report to the accused; in the instant facts, the valuable right
available to the accused/appellant to seek for reference within
                                                                        D
the period of 10 days stands defeated. In that circumstance when
the appellant/accused is made to suffer the penal consequences,
it will have to be construed strictly. In the facts and circumstances
of the present case, since the report of the Analyst has not in fact
been served on the appellant and the mere despatch of the report
as per the statement of PW-2 was not sufficient. If that be the         E
position, the entire case of the prosecution which revolves around
and is built upon the report of the Analyst cannot be made the
basis for holding the appellant/accused guilty in the present case.
[Para 15] [798-B-G]
      2. Though it is contended on behalf of the prosecution that       F
as per the requirement under Section 10(7) of the Act, 1954, an
independent person had also witnessed the taking over of the
sample, the said witness did not support the case of the
prosecution. Though the Magistrate has in that circumstance
held that it would be sufficient to rely on the evidence of PW-1
(Food Inspector) despite not being supported by any other               G
witness as PW-1 has no enmity with the accused, that by itself
would not be sufficient in the instant facts, since the very
requirement of the provision is to collect the sample in the
presence of an independent witness. [Para 16] [799-B-D]
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792            SUPREME COURT REPORTS                    [2019] 10 S.C.R.


A           3. The manner as to whether the sample was appropriately
      taken after properly stirring the milk and whether the same was
      sent for analysis also in such manner has, therefore, not been
      established. This is more so in the circumstance where milk
      which is a primary product, has fat content and the fat content
      would also depend on the appropriate manner in which the sample
B
      is taken after stirring. In the instant case, the Public Analyst had
      opined that the milk sample was deficient by 12 per cent in milk
      fat and 27 per cent in non-fatty solids. The said results would
      become relevant only if it is established that the sample taken
      for such analysis was also in a proper manner after stirring which
C     would make the fat and non-fat into homogenous mixture. Hence,
      in that regard appropriate evidence was necessary more
      particularly, when PW-3 who was claimed to be an independent
      witness has not supported the prosecution. In the facts and
      circumstances of the present case, the uncorroborated testimony
      of PW-1 – Food Inspector cannot be relied upon to sustain the
D
      conviction. [Paras 16 and 17] [799-D; E; G-H; 800-A]
            K. Harikumar v. Food Inspector, Punaloor Municipality
            (1995) Suppl. 3 SCC 405 – relied on.
             4. Therefore, even if the other aspects are not adverted
E     to, the very fact that the Analyst’s report being served not being
      proved and the sample being taken in an appropriate manner not
      being established, it would be sufficient to hold that the
      prosecution has not proved the guilt of the appellant beyond
      reasonable doubt and the conviction is not justified. The appellant
      is acquitted of the charge under Section 7(1)/16(1)(a)(i) of
F     Prevention of Food Adulteration Act. [Para 18] [800-B-D]
            Ram Lubhaya v. Municipal Corporation 1975 FAJ 253
            – referred to.
                            Case Law Reference
G     1975 FAJ 253                   referred to.           Para 8
      (1995) Suppl. 3 SCC 405        relied on.             Para 16



H
           VIJENDRA v. STATE OF UTTAR PRADESH                                 793


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                       A
No. 1167 of 2019.
      From the Judgment and Order dated 09.12.2014 of the High Court
of Judicature at Allahabad in Criminal Revision No. 1595 of 1988.
      Ms. Richa Kapoor, Shivam Tyagi, Rohit Singh, Advs. for the
Appellant.                                                                    B

     Dhirendra Singh Parmar, Sarvesh Singh Baghel, Advs. for the
Respondent.
      The Judgment of the Court was delivered by
      A. S. BOPANNA, J.                                                       C

      1. Leave granted.
      2. The instant appeal arises from the judgment passed by the
High Court of Allahabad in Criminal Revision No. 1595 of 1988 in and
by which the High Court dismissed the revision filed by the appellant         D
thereby affirming the conviction of the appellant under Sec. 7(1)/
16(1)(a)(i) of Prevention of Food Adulteration Act, 1954.
       3. Sri R.C. Kansal, Food Inspector filed a complaint stating that
on 16.10.1979, at about 8:00 AM, while he was posted as Food Inspector
at Primary Health Centre Bhojpur, he found the appellant taking buffalo       E
milk for sale on the Acchapalgarhi Road, Pilakhuwa, District Ghaziabad.
On demanding license from Appellant, it was revealed that he did not
have any license for selling the milk. Suspecting adulteration in the milk,
complainant prepared a notice Ex.6 and gave a copy to the appellant.
After that, in the presence of public witness Radhey Shyam/PW-3, the
complainant purchased 660 ml milk for 1 Rupee 65 paise and gave the           F
money to the appellant and took thumb impression of the witness. The
purchased milk was divided equally and filled in 3 clean bottles. The
bottles were sealed in accordance with the rules and labels were pasted
on them. Thumb impression of the Appellant was taken on the labels
posted on the bottles. One sample was sent to Public Analyst Lucknow          G
on 17.10.1979. The rest of the 2 bottles were submitted before the
office of Chief Medical Officer, Ghaziabad. The Public Analyst received
the sample on 18.10.1979, who prepared report Ex.No. 4 dated 15.11.1979
with the finding that the sample of buffalo milk was deficient by 12% in
milk fat and 27% in non-fatty solids. The sample was thus found to be
adultered.                                                                    H
794            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A            4. The complainant submitted an application along with relevant
      material seeking consent for prosecution. The Chief Medical Officer/
      Sri. Y.K. Bhushan granted consent for prosecution under Section 7(1)/
      (16)(1)(a)(i) of Prevention of Food Adulteration Act vide order dated
      06.02.1980.
B           5. After that, the complainant prepared the complaint/Exhibit A-8
      and produced it before the court on 18.03.1980, whereupon the court
      took cognizance and criminal case No. 787 of 1986 was registered.
             6. The Public Analyst’s report was forwarded to the Appellant by
      registered post on 07.04.1980.
C            7. The prosecution examined the complainant/R.C. Kansal as PW-
      1, Jaipal Singh/clerk in the office of Chief Medical Officer as PW-2 and
      Radhey Shyam, as PW-3. PW-2 stated in his statement that on
      07.04.1980, he sent the report of the Public Analyst to the Appellant by
      registered post. PW-3, who is an independent witness, was declared
D     hostile by the prosecution. The appellant, in his turn, pleaded not guilty.
      He however did not produce any evidence in defence.
             8. Before the Trial Court, it was argued on behalf of the appellant
      that the independent witness/PW-3 has not supported the case of the
      prosecution and there is non-compliance of Section 10 (7) of the Food
E     Adulteration Act. Appellant further alleged non-compliance of provisions
      of Section 13 (2) of the Food Adulteration Act. Regarding PW-3 being
      hostile, the trial court opined that according to the complainant, sample
      has been taken in the presence of independent witness. It has further
      observed that the Supreme Court in the case of Ram Lubhaya vs.
      Municipal Corporation, 1975 FAJ page no. 253, held that it is not a
F     rule of law that guilt cannot be proved only on the evidence of Food
      Inspector. Regarding compliance of provisions of Sec. 13 (2) of Prevention
      of Food Adulteration Act, the court held that the compliance is clear
      from the statement of PW-2 that report of public analyst and letter of
      Chief Medical Officer has been sent to the address of the appellant
G     through registered receipt dated 07.04.1980. The court accordingly
      convicted the appellant and sentenced him to 6 months rigorous
      imprisonment and fine of Rs. 1000/- with default sentence.
             9. Appeal filed by the Appellant was also dismissed with the finding
      that the appellant has been rightly convicted by the trial court.
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            VIJENDRA v. STATE OF UTTAR PRADESH                                  795
                     [A. S. BOPANNA, J.]

        10. The appellant herein then filed Criminal Revision No. 1595 of       A
1988 before the High Court contending that there was non-compliance
of Section 10 (7) of Food Adulteration Act inasmuch as no independent
witness supported the prosecution case and of Section 13 (2) of the
Food Adulteration Act inasmuch as the application was filed before the
Magistrate on 18.03.1980, while the report of Public Analyst was sent
                                                                                B
on 07.04.1980, i.e. with delay of almost 19 days. The High Court rejected
both these objections raised by the Appellant, holding that as far as Section
10 (7) is concerned, the objective of this section is to ensure actual or
genuine transaction of sale. The provision is mandatory to the extent
that the Food Inspector must make genuine efforts to get the corroboration
of one or more persons present on the spot to witness his act of taking         C
sample and completion of other formalities. Once such effort has been
made, but in vain, it cannot be said that there is any non-compliance of
this section. The High Court also relied on the decision of the apex court
in Shri Ram Lubhaya (Supra) wherein this court inter alia held that the
obligation which Section 10 (7) casts on the Food Inspector is to ‘call’
                                                                                D
one or more persons to be present when he takes action. If none was
willing to cooperate, he cannot compel their presence. Regarding the
submission that there is non-compliance of Section 13 (2) of the Food
Adulteration Act, the High Court noted that the requirement of this section
is to send report after institution of prosecution against the person from
whom sample was taken in such manner as prescribed under Rule 9B                E
of Prevention of Food Adulteration Rules, 1955. Said Rule provides that
the Local Authority shall, within 10 days after institution of prosecution,
forward a copy of Analyst’s Report by registered post or by hand as
may be appropriate. In the instant case, instead of 10 days, there is a
gap of about 19 days. The court held that the purpose of Section 13 (2)
                                                                                F
is to enable the accused, if he so desires, to make an application to the
court for getting the sample re-tested. This has not been done in the
case at hand by the appellant at all and that being so, there is substantial
compliance of Section 13 and it would not render the entire prosecution
illegal. The revision was thus dismissed as being devoid of merit. The
High Court further cancelled the bail bonds and surety bonds of the             G
appellant and directed that he shall be arrested and lodged in jail to serve
out the sentence passed against him.
      11. It is the contention of the Appellant that since he denied
receiving notice as contemplated under Section 13(2) of Prevention of
                                                                                H
796            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A     Food Adulteration Act and in the absence of any proof of postal receipt
      or acknowledgement, mere statement of PW-1 and PW-2 that notice
      was sent by registered post would not suffice to warrant conviction of
      the appellant. Sending of notice under Section 13 (2) by registered post
      has to be proved on record by documentary evidence which has not
      been done in the instant case. Further the said notice should have been
B
      sent within 10 days from the date of receipt of report of public analyst
      whereas in the present case, admittedly the notice was sent after 20
      days. Moreover, there is failure of compliance of mandatory provisions
      of Rules 17 and 18 of Prevention of Food Adulteration Rules, rendering
      the conviction recorded by courts below unwarranted and unjustified.
C           12. The respondent, on the other hand, aver that Section 13 (2)
      of Prevention of Food Adulteration Act and Rule 9A of Prevention of
      Food Adulteration Rules use the expression “forward” and not “serve”
      or “deliver”; thus the contention of the appellant that he was not served
      with notice under Section 13 (2) merits no consideration. Moreover, the
D     Appellant could very well have applied to the court to send one of the
      samples to the Central Food Laboratory, but this has not been done in
      the case at hand. Therefore, the appellant cannot contend that there
      has been prejudice, merely because of non-compliance or defective
      compliance of provisions of law.
E            13. From the above narration, it is no doubt seen that all the three
      Courts have held against the appellant and have sentenced him
      accordingly. Though in that circumstance, the reappreciation of evidence
      which led to the conviction may not arise, this Court is certainly required
      to examine as to whether the requirement contemplated under the Act,
      1954 and the Rules 1955 has been complied with by the Authorities as
F     per the requirement in terms of the safeguard provided therein. The
      primary contention of the learned counsel for the appellant as noticed
      above is that in respect of the sample said to have been collected on
      16.10.1979, the report was submitted by the Public Analyst, Pilakhuwa
      on 15.11.1979 indicating that the milk sample was deficient by 12 per
G     cent in milk fat and 27 per cent in non-fatty solids which were below the
      prescribed standard and hence the sample was reported to be adulterated.
      Pursuant to the such report the complaint was filed before the learned
      Magistrate on 18.03.1980. Subsequent thereto the copy of the report of
      the Analyst is stated to have been despatched to the appellant on
      07.04.1980. It is in that view, the contention has been raised by the
H
            VIJENDRA v. STATE OF UTTAR PRADESH                                  797
                     [A. S. BOPANNA, J.]

learned counsel for the appellant that the same is in violation of the          A
provision contained in Section 13(2) of the Act, 1954. In this regard, it is
contended that sub-section (2) to Section 13 of the Act, 1954 provides
that the Authority on receiving the copy of the report of the result of
analysis and on institution of prosecution, forward a copy to the person
and it would be open for such person to make an application to the Court
                                                                                B
within a period of 10 days from the date of the receipt of the copy of the
report to get the sample of the article kept by the Local (Health) Authority
analysed by the Central Food Laboratory. In that regard, Rule 9B of
Rules, 1955 provides that the Local (Health) Authority shall send the
report based on which the action is taken within 10 days after institution
of the prosecution. Such report is to be sent by registered post or by          C
hand to the person from whom the sample of the article was taken by
the Food Inspector.
       14. In the instant case, the contention put forth is that firstly no
such report of the Analyst has been made available to the appellant and
there is no proof of delivery of the report. It is contended that even          D
though the prosecution had stated that the report was despatched on
07.04.1980, keeping in view that the prosecution was instituted by filing
the application before the learned Magistrate on 18.03.1980 the very
alleged despatch of the report is beyond the period of 10 days as
contemplated in the Rule as stated above. On this aspect the learned
Magistrate, while rejecting the contention has held that the report of the      E
Public Analyst was sent to the appellant by registered post on 07.04.1980
which is within the period of 20 days and since such report was sent
within a reasonable time the appellant cannot be said to have been
prejudiced in any manner. It is further observed that he was at liberty to
move the Court for sending a sample to the Director of Central Food             F
Laboratory, Calcutta for analysis but he did not exercise his right in this
respect. The learned Additional Sessions Judge in his judgment while
considering this aspect has held that the Food Clerk, Shri Jaipal Singh
(PW-2) has stated that the report of the Public Analyst was sent to the
appellant by registered post on 07.04.1980. On this very aspect the
learned Judge of the High Court has also recorded that Shri Jaipal Singh        G
(PW-2) who is the clerk of the Food Inspector (PW-1) has proved the
fact that the Public Analyst’s report was sent to the appellant by registered
post on 07.04.1980. In that background, the High Court on referring to
the provision contained in Section 13(2) of the Act 1954 read with Rule
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798            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A     9B of the Rules, 1955 has held that the purpose of Section 13(2) is to
      enable the accused if he so desires, to make an application to the Court
      for getting sample retested. The learned Judge was swayed by the fact
      that the appellant herein who was the accused has not made such
      application at all and in that light the learned Judge has arrived at the
      conclusion that there is substantial compliance of Section 13 of the Act,
B
      1954.
              15. On this aspect of the matter, we take note that while adverting
      to the provision in Section 13(2) requiring to furnish the report of the
      Analyst to the accused as contemplated therein the learned Judges of all
      the three Courts have taken note of the evidence of PW-2 Shri Jaipal
C     Singh, the Food Clerk who claimed to have despatched the report by
      registered post on 07.04.1980. The learned Judges have however failed
      to take note that no evidence was brought on record to indicate that the
      report which is claimed to have been despatched was actually served or
      delivered to the appellant. The very purpose of furnishing such report is
D     to enable the accused to seek for reference to the Central Food Laboratory
      for analysis if the accused is dissatisfied with the report. Such safeguard
      provided to the accused under Section 13(2) of the Act is a valuable
      right. In that view even if the despatch of the report on 07.04.1980 is
      taken as substantial compliance though it is beyond the period of 10 days
      from 18.03.1980 i.e., the date on which the prosecution was lodged, in
E     the absence of there being proof of delivery of the report to the accused;
      in the instant facts the valuable right available to the accused/appellant
      to seek for reference within the period of 10 days stands defeated. In
      that circumstance when the appellant/accused is made to suffer the
      penal consequences, it will have to be construed strictly. In the facts and
F     circumstances of this case, since as already noticed above the report of
      the Analyst has not in fact been served on the appellant and the mere
      despatch of the report as per the statement of PW-2 was not sufficient.
      If that be the position, the entire case of the prosecution which revolves
      around and is built upon the report of the Analyst cannot be made the
      basis for holding the appellant/accused guilty in the present case.
G
            16. Further in the instant facts, it is noticed that the very manner
      in which the prosecution has put forth its case will disclose that the Food
      Inspector on 16.10.1979 found the appellant taking milk for sale and
      when licence was demanded he did not possess the same. In that
      background he had collected the sample of 660 ml. milk and thereafter
H
           VIJENDRA v. STATE OF UTTAR PRADESH                                 799
                    [A. S. BOPANNA, J.]

proceeded in the matter. In such circumstance, it was at the outset           A
required to establish that the accused was regularly carrying on such
business and in that circumstance while inspecting had found adulterated
milk which was being sold by him to the customers. No doubt the Food
Inspector has examined himself as PW-1 and stated with regard to the
incident, the manner in which the sample was taken and that the same
                                                                              B
was sent for analysis but has not been clearly spelt out. In the instant
facts, though it is contended on behalf of the prosecution that as per the
requirement under Section 10(7) of the Act, 1954 one Shri Radhey Shyam,
an independent person had also witnessed the taking over of the sample,
the said witness did not support the case of the prosecution. Though
the learned Magistrate has in that circumstance held that it would be         C
sufficient to rely on the evidence of PW-1 despite not being supported
by any other witness as PW-1 has no enmity with the accused, that by
itself would not be sufficient in the instant facts since the very
requirement of the provision is to collect the sample in the presence of
an independent witness and when such independent witness has not
                                                                              D
supported the case of the prosecution. The manner as to whether the
sample was appropriately taken after properly stirring the milk and
whether the same was sent for analysis also in such manner has, therefore,
not been established. This is more so in the circumstance where milk
which is a primary product has fat content and the fat content would
also depend on the appropriate manner in which the sample is taken            E
after stirring. In this regard, it is apposite to take note of the decision
rendered by this Court in the case of K. Harikumar vs. Food Inspector,
Punaloor Municipality (1995) Supple 3 SCC 405 relied upon by the
learned counsel for the appellant, wherein while considering the provisions
of the Act, 1954 with regard to the sample of curd which was the subject
                                                                              F
matter therein, it was held that in order to attain homogeneity in curd,
stirring and churning may become necessary for the ingredients of the
milk solid non-fat and milk solid fat getting consistency in order to
determine the percentage in their completeness.
       17. In that background, in the instant case, as already noticed the
Public Analyst had opined that the milk sample was deficient by 12 per        G
cent in milk fat and 27 per cent in non-fatty solids. The said results
would become relevant only if it is established that the sample taken for
such analysis was also in a proper manner after stirring which would
make the fat and non-fat into homogenous mixture. Hence, in that regard
                                                                              H
800             SUPREME COURT REPORTS                        [2019] 10 S.C.R.


A     appropriate evidence was necessary more particularly, when PW-3 who
      was claimed to be an independent witness has not supported the
      prosecution. In the facts and circumstances of the present case, in our
      view, the uncorroborated testimony of PW-1 – Food Inspector cannot
      be relied upon to sustain the conviction.
B           18. Therefore, in that circumstance even if the other aspects are
      not adverted to, the very fact that the Analyst’s report being served not
      being proved and the sample being taken in an appropriate manner not
      being established, it would be sufficient to hold that the prosecution has
      not proved the guilt of the appellant beyond reasonable doubt and the
      conviction is not justified. In that view, the judgments dated 02.06.1987,
C     01.11.1988 and 09.12.2014 passed respectively by the Judicial Magistrate,
      Hapur, Ghaziabad, the Additional Sessions Judge Ghaziabad and the High
      Court of Allahabad are set aside and this appeal is allowed. The appellant
      is acquitted of the charge under Section 7(1)/16(1)(a)(i) of Prevention
      of Food Adulteration Act.
D            19. Before parting we would like to place on record the able
      assistance rendered by the learned counsel for the appellant who was
      appointed through Supreme Court Legal Services Committee.


E     Kalpana K. Tripathy                                          Appeal allowed.




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