Gattu S/O Gulab Singh Vs. State of M.P. - Court Judgment

Excerpt:
- - (c) learned counsel submitted that as required under rule 9 of the rules framed under the act food inspector failed to discharge his duty. , report of public analyst was not served on the applicant as required therein and in support of the submission learned counsel submitted that the requirement of rule 9a of the rules framed under the act was not satisfied inasmuch as the same was not served on the applicant. the position under the law is that such a service under the law is to be treated as service effected by fiction of law in view of the provisions of section 27 of the general clauses act, 1897 as well as section 114(e) and (f) of the evidence act, 1872. there can be two possibilities.orderd.p.s. chauhan, j. 1. it is the revision directed against order dated 11th march, 1993 passed in cr. a. no. 35/90 arose out of cr. case no. 106/87 which was decided by the judicial magistrate, first class, gadarwara on 6-10-90 holding the applicant guilty for the commission of the offence punishable under section 16(1)(a)(i) of the prevention of food adulteration act, 1954 and was sentenced to six months' rigorous imprisonment together with fine rs. 1000/-.2. learned counsel for the applicant made the following submissions:(a) in this case there has been violation of provision of section 13(2) of the prevention of food adulteration act, 1954 (hereinafter referred to as the act);(b) that there were three witnesses relating to the eye account out of which the two witnesses did not.....

Judgment:
ORDER

D.P.S. Chauhan, J.

1. It is the revision directed against order dated 11th March, 1993 passed in Cr. A. No. 35/90 arose out of Cr. Case No. 106/87 which was decided by the Judicial Magistrate, First Class, Gadarwara on 6-10-90 holding the applicant guilty for the Commission of the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and was sentenced to six months' rigorous imprisonment together with fine Rs. 1000/-.

2. Learned counsel for the applicant made the following submissions:

(a) In this case there has been violation of provision of Section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act);

(b) that there were three witnesses relating to the eye account out of which the two witnesses did not support the prosecution case but only one witness K.N. Pandey, the Food Inspector, supported the case and according to him he was interested witness.

(c) Learned counsel submitted that as required under Rule 9 of the Rules framed under the Act Food Inspector failed to discharge his duty.

In support of the first submission the learned counsel made two fold arguments. Firstly, within twenty-four hours after taking of the sample by the Food Inspector the same was not sent to public analyst for analysis. From the evidence on record as submitted by the State Counsel, it is established that the Food article so taken was sent the next day and it was within twenty-four hours. This line of argument was not advanced before the appellate Court. From the statement of fact in para 2 of the judgment under revision it is clear that the sample of the article of food so taken was sent the next day, i.e., sample was taken on 18-11-1986 at 9-30 a.m. and the same was sent on 19-11-1986. Since the point was never agitated in appeal it is not necessary for this Court to dilate on this point.

3. The next submission was as to non-compliance of Sub-section (2) of Section 13 of the Act, i.e., report of public analyst was not served on the applicant as required therein and in support of the submission learned counsel submitted that the requirement of Rule 9A of the Rules framed under the Act was not satisfied inasmuch as the same was not served on the applicant. The material on record shows that the copy of the report was sent by registered post but the applicant refused to accept the same. The question for consideration is effect of the refusal of service of the report sent by registered post at the correct address to the applicant. The position under the law is that such a service under the law is to be treated as service effected by fiction of law in view of the provisions of Section 27 of the General Clauses Act, 1897 as well as Section 114(e) and (f) of the Evidence Act, 1872. There can be two possibilities. When a registered envelope comes back with the endorsement 'refused', one the sender may somehow get an endorsement that the addressee has refused the registered letter, and secondly, the addressee has actually refused the receipt of the registered envelope to him. Both these possibilities can occur. In the final analysis, it is for the Court of fact to determine which is the more probable of these contingencies. The reference may be had to the case of Jagdish Singh v. Natthu Singh AIR 1992 SC 1604 : 1992 All LJ 620. In the case of determination of the tenancy such a question arose before he Allahabad High Court. Notice was sent and the same returned with endorsement of refusal. The Court held that such a notice must be presumed to have been served. Reference may be had to the case of Ganga Ram v. Phulwati AIR 1970 All 446 : 1970 All LJ 336 (FB). This part of the submission is thus sans substance and is rejected.

4. So far as the evidence of Food Inspector is concerned the same cannot be rejected only on the ground that he was interested person unless the applicant proves that he was acting not bona fide or was acting mala fide against the applicant... It is a question of fact and there is no such evidence on record. This submission also deserves to be rejected and is rejected.

5. The third submission was that compliance of Rule 9 of the Rules under the Act was not done. Rule 9 contains the duties of the Food Inspector which will not vitiate the proceedings. In case the Food Inspector has breached in complying the obligation i.e. duties cast on him by the statute, the forum for such breach is elsewhere. According it is not a point for interference by this Court.

6. In view of the above revision sans substance and is rejected.