Judgment:
N.S. Singh, J.
1. This revision petition under section 401 of the CrPC arises against the judgment and order dated 15.7.1992 passed by the learned Chief Judicial Magistrate, Jorhat in C.R Case No. 8 of 1989 convicting the present petitioner Sri Sibanath Singh for the offence punishable under sections 7/16 of the Prevention of Food Adulteration Act for storing and selling 'Laddu' coloured with prohibited coal tar colour metanil yellow and sentencing the accused-petitioner to undergo RI for 6 (six) months and a fine of Rs. 1,000/- and in default to suffer further R/I for 2 months as well as the impugned judgment dated 16.3.1993 passed by the learned Sessions Judge, Jorhat in Criminal Appeal No. 41 of 1992 affirming the Judgment and order of conviction and sentence passed by the learned Trail Court. The facts of the prosecution case in a short compass are as follows.
2. A complaint was lodged by one Food Inspector, Jorhat stating that he had collected sample of 'Laddu' from the accused-petitioner after due compliance of required legal formalities and the sample was sent to the Public Analyst who in turn analysed the sample and sent a report with the opinion that the sample of 'Bundiya Laddu' contains non-permitted coal tar colour metanil yellow and, accordingly, the sanction was accorded by the Chief Medical & Health Officer, Jorhat to prosecute the vendor namely, the present petitioner as well as the owner of the hotel namely, Sri Biswanath Singh.
3. Upon hearing the parties, the learned Trail Court found the present accused-petitioner guilty for the offence punishable under sections 7/16 of the Prevention of Food Adulteration Act and, acquitted the owner of the hotel Sri Biswanath Singh under the impugned judgment and order dated 15.7.1992. Hence, the petitioner herein preferred an appeal before the learned First Appellate Court and the First Appellate Court also did not interfere with the findings of the learned Trail Court thus, affirming the order of conviction and
sentence passed by the learned Trial Court and, being aggrieved by the impugned judgment dated 16.3.1993 passed by the learned First Appellate Court, the petitioner herein preferred this criminal revision.
4. At the very outset, Mrs. B. Dutta, learned counsel appearing for the petitioner submitted that the learned courts below had misappreciated rather misconceived the provisions of law laid down under Section 13(2) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act of 1954 inasmuch as. the petitioner has not been served a copy of the report of the result of Analysis and he has not been informed that if he desires so, he may make an application to the Court within a period of 10(ten) days from the date of receipt of the copy of the report to get sample of the article (Laddu) kept by the local Health Authority analysed by the Central Food Laboratory at any point of time and, apart from it, the owner of the hotel namely, Sri Biswanath Singh was acquitted from the case and poor innocent employee of the hotel like the accused-petitioner herein has been convicted and sentenced under the impugned judgments passed by the learned courts below. At the hearing, Mr. Das, learned P.P. appearing for the State submitted that the local Health Authority concerned had issued necessary notice and letter and the same was served to the petitioner as well as to the owner of the hotel namely, Sri Biswanath Singh and the same was duly received by the petitioner as well as the said owner of the hotel but, they did not apply to the Court within the prescribed period of 10(ten) days as required under Section 13(2) of the Act of 1954. The learned P.P. also submitted that the postal receipt marked as Ext. 11 and the A/D card marked as Ext. 12 show that the related notice/office letter dated 10.1.1989 issued by the local Health Authority as required under Section 13(2) of the Act of 1954 was properly served to the petitioner and he has been duly informed about his right to submit and apply to the Court for making analysis of the food sample by the Central Laboratory and these documents prove the service of the copy of the report of the result on the analysis to the petitioner. Replying to the arguments advanced by the learned P.P. Mrs. Dutta, learned counsel has contended that the provisions of Section 13(2) is mandatory and non-compliance of it is fatal to the case of the prosecution. Supporting this submission, the learned counsel for the petitioner relied upon 2(two) decisions of the Punjab and Haryana High Court rendered in Rameshwar Das v. State of Punjab reported in 1995(1) Prevention of Food Adulteration Act, 55 and, a case between State of Punjab through Food Inspectorv. Deboo reported (1) 1990(2) Prevention of Food Adulteration Act, 117. According to Mrs. Dutta, learned counsel, the authority concerned did not follow
this mandatory provision of Section 13(2) of the Act of 1954 and,
this legal aspect was not looked into and discussed by the learned
courts below in a proper concept, in other words, the learned courts
below had misappreciated it while passing the impugned judgments
of conviction.
5. Now this court is to see and examine as to whether those impugned judgments or conviction and sentence are tenable in the eye of law or not; and whether the learned courts below had appreciated the provisions of law laid down under Section 13(2) of the Act of 1954 in proper concept of law or not while rendering the impugned judgments.
6. The provisions of law laid down under Section 13(2) is relevant in the instant case for just determination of the real points in controversy and, accordingly, the provisions of Section 13(1)/(2) of the Act of 1954 is quoted below.
'13. Report of Public Analyst. -(1) The Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.
(2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
(2A) When an application is made to the Court under Sub-section (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition.
(2B) On receipt of the part or parts of sample from the Local (Health) Authority under Sub-section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and the signature or thumb-
impression, as the case may be is not tampered with, and despatch the part or, as the case may be one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the Court and only one part of the sample has been sent by the Court to the Director of the Central Food Laboratory under Sub-section (2B). the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the Certificate from the Director of the Central Food Laboratory has been received by the Court :
Provided that where the part of the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof, the Court shall proceed in the matter provided in Subsection (2B).
(2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to prosecution.
(2E) If, after considering the report, if any, of the Food Inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under Sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions to Sub-sections (2) to (2D) shall, so far as may be, apply.'
7. It is incumbent upon the Local (Health) Authority namely, the Chief Medical and Health Officer, Jorhat i.e. the authority who gave consent and sanction for prosecution under the Prevention of Food Adulteration Act to give a notice along with a copy of the report of the Public Analyst to the petitioner-accused from whom the sample of food was taken so as to enable him to make an application to the Court within a period of 10(ten) days from the date of receipt of the copy of the report, to get the sample of the article of the food i.e. Ladoo in the instant case kept by the Local (Health) Authority analysed by the Central Food Laboratory as required under Section 13(2) of the Act of 1954. It is true that mere irregularity in serving
the notice would not be fatal to the prosecution as the provision is directory and not mandatory. According to me, a plain reading of provision of Section 13(2) of the Act of 1954 shows that the provision is directory not mandatory. Therefore, the case laws cited by Mrs. B. Dutta, learned counsel appearing for the petitioner are not applicable in the instant case. With due respect and regard to the learned Judges of the Punjab and Haryana High Court who rendered those related judgments in Rameshwar Das v. State of Punjab and State of Punjab through Food Inspector v. Deboo (supra), I differ from it. However, it is made clear that total non-compliance of the provisions would definitely be fatal for the prosecution. Now, a question arises, whether the action of the authority concerned amounts to total non-compliance of the provisions of Section 13(2) of the Act of 1954. In the instant case, it is not disputed that the Local (Health) Authority had issued the letter/notice dated 10.1.1989 in the name of 2(two) accused persons, one is the present petitioner and, another is one Sri Biswanath Singh, the owner of the hotel who got acquittal under the impugned judgments passed by the learned Court below and the said notice/letter was sent in a single postal envelop which was insured and registered with A/D card as seen and reflected in the documents marked as Exts. 10, 11 and 12. Abare perusal of these three documents show that the notice was not sent separately to the 2{two) accused persons as it was sent in a common envelop and the same was not received by any of the 2(two) accused persons, and the learned court below acquitted the owner of the hotel namely, Sri Biswanath Singh only on the main ground that no formal notice was served or issued to the said Biswanath Singh as required under Section 13(2) of the Act of 1954 and, whereas, the learned court below had opined that notice/letter dated 10.1.1989 was duly served upon the present petitioner. Hence, in my considered view, both the learned courts below had completely misappreciated rather, misinterpreted the provisions of law laid down under Section 13(2) of the Act of 1954 while passing the impugned judgments. As discussed above, even though the provisions of Section 13(2) of the Act of 1954 is directory, the authority concerned was to make total compliance of the provisions of law and if it is not done so, the same is quite fatal to the prosecution. Same thing happened in the instant case also inasmuch as, there is no evidence on record for establishing the factum of receipt of the notice dated 10.1.1989 by the petitioner-accused, issued by the Local (Health) Authority concerned except the evidence that the A/D card was signed and acknowledged by one Sureshon 13.1.1989 and the said Suresh who signed A/D card was not examined by the prosecution for establishing the fact that the present petitioner and the said Sir Biswanath Singh had received and said notice as required under Section 13(2). Therefore, action of the authority concerned is not mere irregularity which cannot be
cured. For the reasons stated above, I am also of Ihe view that the action of the authority concerned amounts to denial to the petitioner to make an application to the Court as required under Section 13(2) of the Act of 1954 and, apart from it, the petitioner has been prevented from doing so by the action of the authority concerned-opp. party. From the available materials on record, it has been further revealed that summon was issued to the petitioner by the Trail Court on 21.1.1989. This clearly shows that the petitioner had no knowledge about the issuance of the said notice dated 10.1.1989 till 21.1.1989. When the law requires a certain thing to be done in a certain way, that thing shall have to be done in that manner and mere despatch of a letter to the present petitioner is not sufficient. Compliance of Section 13(2) of the Act of 1954 which confers a valuable right on the petitioner and. if such right and opportunity afforded by law is deprived of, the impugned judgments of conviction and sentence cannot be sustained and, on this ground alone the impugned judgments of conviction and sentence passed by the learned Courts below deserve to be set aside. Moreover. I am constrained to make the observation that in the said report of the Public Analyst (Ext.7), there is no whispering that the food article i.e., the sample is 'Bundiya Ladoo' is an adulterated food within the meaning of Section 2 of the Act of 1954 except the opinion that the sample contains non-permitted coal tar colour metanil yellow. It is the expert, Public Analyst, who is to give his opinion whether the sample food is adulterated or not within the meaning of Section 2 of the Act of 1954 but, in the instant case, the Public Analyst did not give any opinion or finding that the food is adulterated as discussed above. There is an Explanation clause in Section 2 of the Act of 1954 which runs thus:
'Explanation - Where two or more articles of primary food are mixed together and the resultant article of food -
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health.
then, such resultant article shall not be deemed to be adulterated within the meaning of this clause.'
Therefore, in my considered view this opinion of the expert. Public Analyst, is not clear, in other words, it is vague. Be that as it may this Court need not go more into depth to other legal issues as suffice is made with the above observations for setting aside the impugned judgment of conviction passed by the learned Trial Court which was affirmed by the learned First Appellate Court.
In the result, this revision petition is allowed thus, setting aside the
impugned judgments of conviction and sentence passed by the learned courts below. The bail bond and other surety bond so far executed by the petitioner and his surety stand discharged. The petitioner is accordingly acquitted from the case/charges levelled against him.