Ratanlal Agarwala Vs. State of Assam - Court Judgment

Excerpt:
- - the only contention urged by learned counsel for the revision petitioner is that the prosecution has failed to prove that a copy of the public analyst's report along with the information or intimation contemplated in section 13(2) of the act has been forwarded to or has been served on the revision petitioner, that there has been violation of a mandatory provision of the statute and hence prejudice is to be presumed and the revision petitioner has to be acquitted. learned public prosecutor contended that the provision is not mandatory but only directory, that it requires the local (health) authority to forward the sample and not to ensure that it reaches the accused, that in any event, the accused did not apply to the court to forward another part of the sample in each of the cases..... u.l. bhat, c.j.1. the common revision petitioner in the two revision petitions has been convicted under section 16 read with section 7 of the prevention of food adulteration act, 1954 in two separate cases for having sold adulterated food articles, namely, coriander powder and chillies powder to the food inspector and sentenced in each case to undergo rigorous imprisonment for six months and to pay a fine of rs. 1000/- and in default to undergo imprisonment for three months. the conviction and sentenced entered against him in each of the cases have been confirmed by the appellate court in separate appeals. hence these two revisions.2. revision petitioner is a trader in jorhat town. food inspector, jorhat on 28-5-79 visited the shop of the revision petitioner and after observing the legal.....

Judgment:

U.L. Bhat, C.J.

1. The common revision petitioner in the two revision petitions has been convicted under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 in two separate cases for having sold adulterated food articles, namely, coriander powder and chillies powder to the Food Inspector and sentenced in each case to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default to undergo imprisonment for three months. The conviction and sentenced entered against him in each of the cases have been confirmed by the appellate Court in separate appeals. Hence these two revisions.

2. Revision petitioner is a trader in Jorhat town. Food Inspector, Jorhat on 28-5-79 visited the shop of the revision petitioner and after observing the legal requirements purchased samples of coriander powder and chillies powder and sent one part of each of the samples to the Public Analyst and the remaining parts of the samples to the Local (Health) Authority. Public Analyst reported that the samples were adulterated. In due course, Food Inspector filed two separate complaints against him. Copies of the Public Analyst's reports with necessary intimations were forwarded to the revision petitioner. Revision petitioner did not apply to the Court to cause remaining part or parts of the samples to be sent to the Director, Central Food Laboratory. He pleaded not guilty in both the cases. In each of the cases, Food Inspector and a witness to the sampling were examined. Both the Courts below have concurrently held that prosecution has established its case beyond reasonable doubt.

3. In the course of the hearing of the revision petitions by one of us (Chief Justice) it was argued that there must be evidence that the copy of the Public Analyst's report has been served on the accused and prosecution did not adduce evidence to that effect in these cases and therefore, revision petitioner is entitled to be acquitted relying on the decision of a Division Bench of this Court in State of Assam v. Anukul Ch. Dev, (1985) 1 Gau LR 521. It was felt that the decision requires reconsideration and the cases were referred to larger Bench. This is how the cases have come before us.

4. There is no dispute that the Food Inspector and the Public Analyst have discharged their duties and functions in accordance with the provisions of the Act and the Rules and that the Public Analyst reported that the samples are adulterated. The only contention urged by learned counsel for the revision petitioner is that the prosecution has failed to prove that a copy of the Public Analyst's report along with the information or intimation contemplated in Section 13(2) of the Act has been forwarded to or has been served on the revision petitioner, that there has been violation of a mandatory provision of the Statute and hence prejudice is to be presumed and the revision petitioner has to be acquitted. Learned Public Prosecutor contended that the provision is not mandatory but only directory, that it requires the Local (Health) Authority to forward the sample and not to ensure that it reaches the accused, that in any event, the accused did not apply to the Court to forward another part of the sample in each of the cases to the Director of Central Food Laboratory, that prejudice in a case like this is not a matter of presumption but one of proof and such proof is wholly lacking and therefore the revision petitioner is not entitled to acquittal.

5. The following points arise for consideration :

(1) Whether the duty of Local Health Authority (LHA) under Section 13(2) of the Act and Rule 9-A of the Rules is mandatory?

(2) What is the duty of the Local (Health) Authority (LHA) under the above provisions in Section 13(2) of the Act and Rule 9-A of the Rules?

(3) In what manner is the discharge of the duty to be proved?

(4) Whether and to what extent Section 13(2) of the Act and Rule 9-A of the. Rules have been complied in the present case and if not, what is the consequence thereof?

6. Sections 11 and 13 of the Act have been drastically amended by Amending Act 34 of 1976. It is necessary to notice the law, as it originally stood, in so far as it is relevant for the purpose of the case and the changes brought about by the Amending Act. Section 11 deals with the procedure to be followed by Food Inspector and Section 13 deals with the report of the Public Analyst.

7. According to Section 11, as it originally stood, of the three parts of the sample taken by Food Inspector, he was required to deliver one part to the person from whom the sample was taken, send another part for analysis to the Public Analyst and retain the third part for prosecution in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Section 13(2), as the case may be. Under Section 13(2), as it originally stood, after the institution of a prosecution, the accused or the complainant may make an application to the Court for sending the part of the sample in the custody of the vendor or the Food Inspector to the Director of the Central Food Laboratory for a certificate and thereupon the Court shall after observing due formalities despatch the part of the sample to the Director who shall thereupon send a certificate to the Court in prescribed form and the certificate shall supersede the report of the Public Analyst. Rule 9(j) of the Rules, as it originally stood, required the Food Inspector to send by hand or by registered post a copy of the report of the Public Analyst to the person from whom the sample was taken in case it was found to be not conforming to the Act and the Rules within ten days from the receipt of the report.

8. Statutory amendments completely altered the above scheme. An authority designated as Local (Health) Authority was brought into the picture by introducing clause (viii-a) of Sub-section (2) of Section 2 of the Act. Local (Health) Authority is the officer appointed by the Central Government or the State Government to be in charge of Health administration in specified area. Section 11, as amended, requires that of the three parts of the sample taken by the Food Inspector, one part should be sent for analysis to the Public Analyst under intimation to the Local (Health) Authority and the remaining two parts shall be sent to the Local (Health) Authority for the purpose of Sub-section (2) of Section 11 and Sub-section (2-A) and (2-B) of Section 13. Sub-section (2) of Section 11, as amended, states that where the part of the sample sent to the Public Analyst is lost or damaged, the Local (Health) Authority shall on a requisition made to it by the Public Analyst or the Food Inspector, despatch one part to the Public Analyst for analysis. Section 13, as amended, states that on receipt of the report of the Public Analyst to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution, forward in the prescribed manner a copy of the report of the Public Analyst to the person from whom the sample was taken and the person, if any, disclosed under Section 14-A, 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 the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. The Court is required to send for the part of the sample kept by the Local ([Health) Authority and the Local Health Authority is required to forward the same to the Court within five days. The Court shall thereupon follow the prescribed formalities and despatch the part or one of the parts of the sample to the Director of Central Laboratory who shall thereupon send a certificate to the Court. Where two parts of the sample have been sent to the Court arid only one part of the sample has been sent to the director of Central Food Laboratory, the court shall return the remaining part to the Local (Health) Authority. Where the part of the sample sent to the Director, Central Food Laboratory is lost or damaged, the part of the sample retained by the Local (Health) Authority shall be caused to be produced in Court and dealt with as indicated earlier. If the Local (Health) Authority is of the opinion that the report delivered by the Public Analyst is erroneous, it shall forward another part of the sample kept by it to any Public Analyst for analysis. This must be folowed by the procedure required to be followed after the original report of the Public Analyst is received. The certificate issued by the Director, Central Food Laboratory shall supersede the report given by the Public Analyst. Rule 9(j) of the Rules was amended with effect from 13-2-77 requiring the Food Inspector to send by registered post a copy of the report of the Public Analyst to the person from whom the sample was taken within ten days from the receipt of the report. This amendment did not take full notice of the amendments introduced to Sections 11 and 13 of the Act. It was, therefore, omitted and Rule 9-A was introduced with effect from 4-1-1977 requiring the Local (Health) Authority, immediately after the institution of the prosecution, to forward copy of the report of the Public Analyst, by registered post or by hand, as may be appropriate, to the person from whom the sample was taken by the Food Inspector and to the person, if any, disclosed under Section 14-A of the Act. The Rule was amended on 9-7-84 substituting the word 'immediately' by the words 'within a period often days.'

9. The law, as it originally stood, was susceptible to misuse and capable of creating complications. There was possibility of the vendor or the Food Inspector, who remained in custody of one part each of the sample tampering with the same. Therefore, the law was amended constituting a high and independent authority like the Local (Health) Authority to be the custodian of both the parts of the sample. The law, as it originally stood, did not prescribe any period within which copy of the report of the Public Analyst was to be sent or forwarded to the person concerned or the period within which that person was to apply to the Court for sending a part of the sample to the Director, Central Food Laboratory. This led to misuse of the right and delay in applying to the Court for sending a part of the sample to the Director, Central Food Laboratory giving rise to the possibility of the sample becoming decomposed or unfit for analysis. The law was amended with a view to prevent such contingencies and to expedite trial of the case.

10. Section 13(2) of the Act read in the light of Rule 9-A of the Rules requires the Local (Health) Authority within 10 days after the institution of the prosecution to 'forward' a copy of the report with necessary intimation to the accused by registered post or by hand. The expression 'forward' according to the Black's Law Dictionary, 5th Edition, means 'to send forward; to send toward the place of destination; to transmit to ship goods by common carrier'. In State of Punjab v. Khemi Ram, AIR 1970 SC 214, the Supreme Court considering the amplitude of the expression 'communicate' in Rule 3.26(d) of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 with reference to order of suspension observed (Para 16);

'The ordinary meaning of the word 'communicate' is to impart, confer or transmit information......It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned........'

Local (Health) Authority is required to 'forward' and not 'serve' or 'deliver'. If the Local (Health) Authority duly forwards the copy of the report of the Public Analyst with necessary intimation or information to the accused, he has done all that he is required or could do in the matter. We are in agreement with the similar view expressed in P. A. Jose v. Food Inspector, (1981) 1 FAC 287 (Ker) and Balan v. Food Inspector, 1985 FAJ 91 (Ker).

11. Learned counsel for the revision petitioner placed reliance on, two decisions of this Court. The earlier decision is of a Division Bench of this Court in The State of Assam v. Anukul Ch. Dey, (1985) 1 Gau LR 521. In this case the accused took the plea in the trial Court that copy of the report was not served on them and cross-examined the Food Inspector on that point. The Food Inspector could not give satisfactory evidence to prove the fact of 'serving' copy of the report on the accused and he could not produce the A/D receipt nor the postal receipt and there was no material to show that copy of such report was 'sent' or 'served' on the accused. The Division Bench observed that the obligation of the Local (Health) Authority was to 'serve' the copy of the report on the accused and since it was not shown to have been 'served' accused were prejudiced and were entitled to acquittal. This decision was followed by a learned single Judge in State of Assam v. Gauri Shankar Agarwalla, (1989) 1 Gau 251. These decisions did not notice that Section 13(2) of the Act and Rule 9-A of the Rules use the expression 'forward' and not 'serve' or 'deliver'. These decisions, with respect, do not lay down the correct law.

12. We do not think there is any particular sanctity in the method prescribed, namely, registered post or by hand. If the Local (Health) Authority forwards it in any other reasonable manner, the accused cannot take advantage of it as long as he is not able to show prejudice. The Rule does not require. that when the copy of the report with intimation is forwarded by registered post, there must be acknowledgment due. If it is forwarded by registered post without acknowledgment due then also the Local (Health) Authority must be taken to have satisfied the requirements of law.

13. Is the provision in Section 13(2) of the Act and Rule 9-A of the Rules mandatory or directory? A Full Bench of this Court in Bijoy Kr. Choudhury v. State of Assam, (1992) 2 Gau 283, relying on several decisions of the Privy Council and Supreme Court held that the question whether a provision is mandatory or directory has to be decided on a consideration of the broad purpose of the enactment, the purpose of the particular provision, the link between the two, the language used, the object sought to be achieved, the mischief sought to be avoided, the weighing of the consequences of holding the provision to be mandatory or directory. The object of the enactment is eradication of evil of adulteration of food, the instrument adopted is coercive and the process is one of collection of evidence and prosecution leading to punishment. The intent of the Statute is to prevent public mischief. The use of the word 'shall' is not decisive. In Municipal Corporation of Delhi v. Chishan Ram, AIR 1967 SC 970 : (1967 Cri LJ 939) the Supreme Court indicated that. Section 13 of the Act conferred on the accused the valuable right of securing the certificate of the Director of Central Food Laboratory on analysis of a part of the sample. The certificate supersedes the report of the Public Analyst. This is the right of having a fresh analysis and a certificate by a superior scientific authority. If the accused is denied opportunity of securing such certificate on account of deliberate act of the prosecution, accused was prejudiced in his defence. In this case on the application of the accused a part of the sample was sent to the Central Food Laboratory but the sample was found unfit for analysis. This was on account of the delay in initiating prosecution. In Babulal v. State of Gujarat, AIR 1971 SC 1277 : (1971 Cri LJ 1075) and Ajitprasad v. State of Maharashtra, AIR 1972 SC 1631 : (1972 Cri LJ 1026) it was held that if the accused banking on the delay in prosecution refrained from invoking his right no such defence could be available to him as no prejudice could be shown. In spite of delay in prosecution, accused should invoke his right and leave it to the Director of Central Food Laboratory to analyse the sample and submit his certificate which will supersede the report of Public Analyst. If the Director finds the sample decomposed or unfit for analysis, then only it can be said that the defence of the accused has been prejudiced and if that is on account of the conduct of the prosecution, accused could plead for acquittal. The Supreme Court in Dalchand v. Municipal Corporation, Bhopal, AIR 1983 SC 303 : (1983 Cri LJ 448) held old Rule 9(j) to be directory and indicated that where the effect of non-compliance with the Rule was such as to wholly deprive the right of the accused to challenge the Public Analyst's report by obtaining the certificate of the Director of the Central Food Laboratory, this might be just cause for complaint as prejudice would then be writ large and where no prejudice was caused there could be no cause for complaint. In Tulsiram v. State of Madhya Pradesh, AIR 1985 SC 299 : (1984 Cri LJ 1731), the Supreme Court held the word 'immediately' that occurred at any stage in Rule 9-A of the Rules signified continuity rather than urgency and non-compliance with the Rule is not fatal as long as prejudice has not been held out.

14. Our attention has been invited to several decisions of various High Courts. A Full Bench of the Madhya Pradesh High Court in Food Inspector, Nagar Palika, Mandsaur v. Devilal, 1985 FAJ 97 : (1985 Cri LJ 726), held Section 13(2) of the Act and Rule 9-A of the Rules are not mandatory and are directory and non-compliance thereof per se is not fatal to the prosecution case. A Division Bench of the Kerala High Court in Food Inspector v. Karingarappully Co-op. Milk Supply Society Ltd., 1986 Cri LJ 719 held (at p. 735):

'Considering the purpose of the statute, object of the provision and consequences of holding the provision to be mandatory or directory, we are of the opinion that the provision is only directory. Of course, this provision of law must be obeyed, it is not left to the sweet will and pleasure of the statutory authority to obey the provision or not. The statutory authority has to discharge its functions as contemplated by law. Where there is a total denial of the right on account of the deliberate conduct of the statutory authority, where the effect of non-compliance with the provision is such as to wholly deprive the right of the accused to challenge the Public Analyst's report by obtaining the certificate of the Director of Central Food Laboratory, it may perhaps be possible to say that serious prejudice has been caused. Whether prejudice has been so caused is a question of fact depending on the facts and circumstances of the case. It is for the accused to allege that he has been so prejudiced and satisfy the Court about it. Non-compliance with or defective compliance, as long as there is no serious prejudice caused to the accused, cannot vitiate the prosecution or lead to acquittal. Courts cannot assume prejudice without any factual foundation or data.

Finding regarding prejudice depends on the conduct of the accused also. Merely because there has been non-compliance with or defective compliance, it would not be open to the accused to sit back, refrain from moving the Court to send one of the samples in the custody of the Local (Health) Authority to the Director of Central Food Laboratory for analysis and thereafter contend that there has been non-compliance with or defective compliance and therefore prejudice must be presumed. Prejudice is not a matter of presumption but one of fact to be established by the accused. Accused could very well apply to the Court to send one of the samples to the Central Food Laboratory. If the Director of the Laboratory sends the certificate containing the result of analysis and his opinion, the certificate supersedes the Public Analyst's report; in that case, accused has exercised his right. If the Director of the Laboratory finds the sample (or samples, as the case may be) unfit for analysis and if such unfitness of the ample could be referable to the delay in making the application on account of non-compliance with or defective compliance of Section 13(2) of the Act or Rule 9A of the Rules, it would mean that the accused has been deprived of his statutory right on account of the conduct of the if the statutory authority and prejudice has been caused to him. If he refrains from making any such application to Court to send the ample to the Central Food Laboratory, he cannot successfully contend that there has been prejudice, merely because of non-compliance or defective compliance with the provision of law.”

With respect, we are in agreement with the above enunciation of law.”

15. The purpose of statutory requirement is to ensure that there is no delay in the fresh analysis being held at the Central Food Laboratory. There could be delay in the accused coming to known of the adverse report of Public Analyst, in applying for and obtaining certified copy of the report and this delay may result in delay in his applying for sending a part of the sample to the Central Food Laboratory. Such delay may result in the part of the sample becoming unfit for analysis. This delay may lead to protraction of trial and ultimate decision; this causes harassment to the accused and also affects public interest. It is to avoid such consequence that provision has been made to forward a copy of Public Analyst’s report to the accused with a particular period informing him that he may apply within a period to the Court. The purpose of the Statute, the purpose of the particular provision, the consequence of holding the provision to be mandatory or directory, the public mischief sought to be avoided, the amendments brought about in the statutory scheme clearly indicate Section 13(2) of the Act to be directory.

16. The scheme of the statutory provision has been changed with a view to bring about expedition in the matter of initiation of prosecution and trial of the proceeding and to prevent dilatoriness on the part of parties concerned. The period fixed in Rule 9-A for the copy of the report to be forwarded to the accused cannot be regarded as a period of limitation. The Local (Health) Authority is to inform accused that he may make an application with a period of ten days. There is no provision in Section 13 of the Act or in the Rules specifically fixing the period of ten days within which the accused is to make the application. He is only informed that he should do so. An application made beyond the period of ten days can certainly be entertained and allowed. IF the accused makes an application so belatedly that the Director of the Central Food Laboratory finds the part of the sample to be decomposed or unfit for analysis, he has only himself to blame and cannot say that he has been prejudiced. If the application has been made belatedly, but nevertheless the Director, Central Food Laboratory finds the sample fit for analysis and submits a certificate to the Court, there can be no prejudice to any party. Of course, an accused who comes forward with a belated application must satisfy the Court that he has conducted himself reasonably and prudently.

17. What is the consequence of the Local (Health) Authority while forwarding the copy of the report to the accused, failing to inform him that if he so desires he may apply to the Court to send a part of the sample to the Director of Central Food Laboratory? It is to be noticed that the old statutory scheme did not require such information to be given to the accused. At least when he receives summons in the case, he is alerted to the case against him and it would be open to 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 filing an application in Court he cannot turn round and complain 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 he so desires, apply to the Court to send a part of the sample to the Director, Central Food Laboratory, is not per se fatal as that part of the provision is directory. Accused must prove the prejudice.

POINT NO. (3)

18. How is the court to be satisfied that the requirement of Section 13(2) of the Act and R. 9-A of the Rules has been observed in a given case? The prosecution is ordinarily expected to produce in court a copy of the forwarding letter addressed by the Local (Health) Authority to the accused and where it is sent by registerd post, the postal receipt or where it is avoided or refused by the accused, the cover containing the necessary endorsements. Where it is sent by hand, the prosecution is ordinarily expected to produce in court evidence thereof and where he has avoided or refused to receive it, the document, if any, evidencing such avoidance or refusal. The Food Inspector or any other competent witness is also ordinarily expected to speak to the facts and prove the documents. The accused, if he so desires, may challenge the documents and the oral evidence by cross-examination or by adducing independent evidence or otherwise.

19. The prosecution, on account of carelessness or otherwise may refrain from producing one or more of the relevant documents and the Food Inspector may similarly refrain from speaking in chief-examination to one or more of the relevant aspects regarding the forwarding the copy of the report, the information to be given to the accused and the postal receipt. If the witness is cross-examined, prosecution is altered in this behalf and may seek permission of the court to produce the documents or to further examine the Food Inspector. The accused may choose not to challenge these aspects of the case in the trial court; it will not ordinarily, in such circumstances, be open to him to challenge the same in the court of appeal or the court of revision. If the higher court permits the accused to challenge the same before it, it would also be open to the court to allow further evidence to be adduced or remand the case to allow parties to adduce further evidence in that behalf.

20. It has been argued before us relying on the decision of a learned single Judge of this court in State of Assam v. Jagat Singh, (1992) 1 Gauhati LR 62, that the court cannot presume that a particular act has been done regularly as presumptions are foreign to criminal cases. We may, in this connection, advert to relevant provisions of Section 114 of the Indian Evidence Act and Section 30 of the Assam General Clauses Act, 1915, which is identical to Section 27 of the General Clauses Act, 1897.

21. Section 27 of the General Clauses Act, 1897 reads as follows:

'27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.'

This provision applies only where a Central statute requires a document to be served by post irrespective of whether the expression used is 'served', 'given' or 'sent' or any other expression. Unless a different intention appears in the Statute service shall be deemed to be effected by properly addressing, prepaying and posting by registered post a letter containing the document. Service is deemed to have been effected, unless the contrary is proved, at the time at which the letter is delivered in the ordinary course of post. Section 114 of the Indian Evidence Act, 1872 reads as follows:-

'114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.'

Nine illustrations have been given of cases where the court may draw appropriate presumption. Of these nine illustrations, Illustrations (a) and (b) specifically pertain to the domain of criminal law. The Section also refers to seven set of facts which may be taken into consideration in deciding whether to apply the presumption or not.

22. There is no indication in Section 27 of the General Clauses Act, 1897 or Section 114 of the Indian Evidence Act, 1872 to the effect that the presumptions cannot be applied in the domain of criminal law or in any prosecution which may lead to sentence of imprisonment or fine. Drawing a presumption in criminal prosecution is not uncommon. Act of deliberate absconding by the accused after the crime can lead to a certain inference. Mens rea can be presumed from the facts and circumstances of the case. If the deceased in a case of homicide was last seen alive in the company of the accused, the court may draw an appropriate inference. Therfore, we hold that the criminal court in its discretion can draw a presumption that an official act shown to have been performed was performed regularly, that is, in accordance with the requirements of law or that a letter forwarded by a Public Authority has been duly and regularly forwarded as required by law.

23. We are quite aware that decisions of several High Courts have taken conflicting views in this regard but the better view appears to be one which we have adopted above. We are supported in this regard by the following dictum laid down by Fathima Beevi, J., as she then was, speaking for the Full Bench of five Judges of the Kerala High Court in Mahtukutty v. State of Kerala (1987) 2 FAC 293 : (1988 Cri LJ 898 at p. 906).

'The superior court may in its discretion presume that the official act of despatching the sample to the Director of Central Food Laboratory has been performed regularly, that is, after taking all such steps and precautions as are required to be taken under Section 13 of the Act. Since the authority involved is a Court, we see no reason to hesitate in drawing such a presumption. This is particularly so when its aspect could have been, but was not challenged in the trial Court.'

We are also supported in this regard by the decision of the Supreme Court in Kassim Kunju Pookunju v. Ramakrishna Pillai, (1976) 2 FAC 68. In that case the Kerala High Court relied on the report of the Public Analyst in Form III prescribed by the Rules in which it was stated that the Public Analyst had received from the Food Inspector a sample, properly sealed and packed and that he had found the seal intact and unbroken. The report did not contain a specific printed recital that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court on a consideration of the duty of the Public Analyst prescribed under R. 7 relied on the principle that official act must be presumed to have been regularly performed. The Supreme Court referred to this aspect of the judgment of the High Court and did not find any error in the decision of the High Court.

24. The Local (Health) Authority is a public official. The act of the Local (Health) Authority in despatching a copy of the report with necessary intimation or information is an official act. When the act has been shown to have been performed, it is open to the court in its discretion to draw the presumption that the act has been performed regularly. There is acceptable evidence to show that the Local (Health) Authority has forwarded the document, by virtue of Illustration (e) to Section 114 of the Indian Evidence Act, 1872, the court may presume that it was forwarded regularly, that is, as required in Section 13(2) of the Act and Rule 9-A of the Rules. There can also be no difficulty in invoking Section 27 of the General Clauses Act, 1897 in appropriate cases to draw appropriate presumption. We hold that the decision in Jagat Singh's case, (1992) 1 Gau LR 62 does not lay down the correct law. The point is answered accordingly.

POINT NO. 4

25. Food Inspector deposed in G. R. Case No. 785/79 that the Local (Health) Authority forwarded the copy of the report along with letter Ext. 9 to the accused. He proved Ext. 9 to be the office copy of the letter and stated that the postal receipt was exhibited in the other case (that is G. R. Case No. 786/79). There was no cross-examination on this point. Ext 9 shows that it accompanied the copy of the Public Analyst's report and it contains information that the addressee may apply to the court to send a part of the sample to the Director within ten days. The Food Inspector in G. R. Case No. 786/79 deposed that a copy of the report in that case was forwarded to the accused, that Ext. 10 is the copy of the accompanying letter, that Ext. 11 is the postal receipt and Ext. 12 is the postal acknowledgment of the accused. Ext. 10 shows that it accompanied the copy of the report and contains information required to _ be given under Section 13(2) of the Act. Food Inspector was not cross-examined in this behalf. The postal receipt shows that the cover was sent by registered post to the correct address of the accused.

26. It is argued by learned counsel for the revision petitioner that while the evidence of Food Inspector in G. R. Case No. 786/79 shows that the report with intimation was sent by registered post to the accused as seen by Ext. 12, the postal receipt and acknowledgment relating to the sample taken in G. R. Case No. 785/79 were not exhibited and therefore, compliance of Section 13(2) of the Act and R. 9-A of the Rules has not been established. We have indicated that the requirement is that the document must be 'forwarded' to the accused under registered post or by hand and there is no requirement that it must be forwarded by registered post acknowledgment due. Food Inspector in G. R. case No. 785/79 deposed that the postal receipt is exhibited in G. R. Case No. 786/79. The irresistible inference, in the light of this evidence, is that the copies of the report with accompanying letters relating to both cases were placed in the same cover and forwarded by registered post under one postal receipt and under one postal acknowledgment. In any event, in the facts and circumstances of the case and in the absence of a specific challenge or contention in this behalf in the trial court, there is every justification in presuming that the act of forwarding proved by the Food Inspector has been performed regularly, namely, in accordance with the requirements of Section 13(2) of the Act and R. 9-A of the Rules. It is, therefore, clear that there has been due compliance of the statutory provisions. The revision petitioner did not apply to the court to send one of the parts of the sample in either of the cases to the Director, Central Food Laboratory for analysis. He has therefore failed to show that he has been prejudiced in his defence. The point is answered against the revision petitioner,

27. Revision petitions are accordingly dismissed.

D.N. Baruah, J.

28. I agree.

R.K. Manisana, J.

29. I agree.

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