IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ; ; MIZOAM & )

CRIMINAL REVISION P. 317/2004

Bijan Saha - Petitioner - Versus -

State of Assam - Respondent

P R E S E N T HON’BLE THE CHIEF JUSTICE (ACTING) MR. K. SREEDHAR RAO

Advocates present:

Amicus Curiae : Mr. A. M. Bora, Advocate

For the respondent : Mr. D. Das, Addl. P.P., Assam

Date of hearing : 21.08.2014 Date of judgment : 21.08.2014 JUDGEMENT AND ORDER [ O R A L ]

The accused is prosecuted for committing offence under Sections

7 and 16 of the P.F.A Act for selling sub-standard Beson (a kind of pulses

flour). The Food Inspector conducted raid, purchased sample and

complied with the requirements of law at the time of seizure. Later on,

one of the samples was sent to the Laboratory. The report of the

Laboratory disclosed that the pulse flour seized is not conforming to the

standard quality and not fit for human consumption. The copy of the

report was sent by registered post to the accused-petitioner. Later on,

prosecution is launched. The trial Court convicted the accused and

sentenced to S.I. for six months with fine. The Sessions Court confirmed

the sentence. Hence, this revision.

2. The relevant portion in the judgment of the trial Court is extracted

hereinbelow:

“Learned advocate for the accused further submitted that no notice un/s 13(2) was served upon the accused after launching of the prosecution. Learned advocate cited a decision reported in 1989 Cri.L.J. 613 Bijan 2

Kumar Ram Vs State of Orissa. In the aforesaid decision, Hon’ble Single Bench of held that requirement of sending Public Analyst’s report to vendor is mandatory. From the evidence of PW1, it transpires that immediately after launching of prosecution, the report of the Public Analyst was sent vide Ext.18 by the Local Health Authority. Ext.18 is addressed to the accused. A copy of the said letter was also forwarded to CJM (K) vide Ext 19 registration receipt the notice was sent by registered post. The essence of Section 13(2) of PFA Act is to enable the accused to get the same of Food re-examined by more superior scientific laboratory to adequately ascertain the purety of the said sample of food stuff without any loss of time. This section saddles a bounden duty on the Local Health Authority to forward a copy of the report of the analysis to the accused immediately after the institution of prosecution. This provision is made for giving information to the accused that if he so desires he can make an application to the court within a period of ten days from the date of receipt of copy of the report to get the sample of food analysed by Central Food Laboratory. In this regard, decision of the Hon’ble Gauhati High Court in Criminal Revision No.261 of 85 and 262 of 85 dated 19.01.93 (Ratan Lal Agarwal Vs. State of Assam) is worth quoting. It has been approved by the Hon’ble High Court as follows: “At least when he received summons in the case he is alerted to the case and it would be upon him to make an application explaining that the Local Health Authority did not forward the information to him about his right. If the accused refrains from filling an application in court he cannot turn round and complained of prejudice on the ground that the Local Health Authority failed to inform him about his right. The mere failure on the part of the Local Health Authority to inform the accused that he may, if so desires, apply to the Court to send the part of the sample to the Director of Central Food Laboratory is not fatal as this part of the provision is directory. Accused must prove the prejudice.”

3. In the said observations, it becomes explicit that the report was sent to the accused-petitioner by registered post.

4. It is the contention of the accused-petitioner that he has not received any communication. When the report is sent by registered post,

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it is the bounden duty of the prosecution to have produced the proof of acknowledgement receipt. But, no such acknowledgement is produced. In the absence, at least an endorsement of the postal authorities about its communication to the petitioner should have been produced as a secondary evidence. The mere say that registered post was sent to the accused-petitioner was not sufficient enough compliance under Section

13(2) of the PFA Act. In the absence of communication of the valuable right of the petitioner to request for a second analysis is fatal to the prosecution. In that view of the matter, the order of conviction is bad in law. Accordingly, the revision is allowed.

5. The State shall pay a sum of Rs.7000/- to Mr. AM Bora, learned counsel, who has argued in this case as amicus curiae.

CHIEF JUSTICE (ACTING) dutt