At, High Court of Gauhati
By, THE HONOURABLE CHIEF JUSTICE MR. MADAN B. LOKUR
For the Appellant: K. Basar, D. Chaudhury, Advocates. For the Respondent: ---
1. The challenge in this revision petition is to the judgment and order dated 19th September, 2002 passed by the learned Sessions Judge, Barpeta in Criminal Appeal No.2 of 2000.
2. The petitioner was convicted for a violation of the provisions of sections 7 and 16 of the Prevention of Food adulteration Act, 1954. He was required to undergo rigorous imprisonment for six months and also to pay a fine of Rs.1,000, and in default, to undergo rigorous imprisonment for one month.
3. The sole ground urged by learned counsel for the petitioner is that the report of the Public Analyst under section 13(2) of the Act was not supplied to the petitioner. The factual basis for this submission is to be found in paragraph-7 of the impugned order where it is noted that the Food Inspector (PW1) had admitted in his cross-examination that there is nothing on record to show that the petitioner had received the notice as required under section 13(2) of the Act.
Section 13(2) of the Act reads as follows: -
"13(2). On receipt of the report of the result of the analysis under sub-section (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 the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."
4. A bare perusal of the above provision shows that it is mandatory in nature. One discernible reason for this is that in the event of an adverse report, the accused person is enabled to have the sample of the article of food kept by the Local (Health) authority analysed by the central Food Laboratory.
5. In other words, an adverse analysis report enables the accused person get an opportunity for re-determining whether the food article is adulterated or not.
6. The question that has arisen in this case, therefore, is whether section 13(2) of the Act is mandatory or not.
7. Learned counsel for the petitioner has referred to State of Orissa v. Gauranga Sahu, 2003 Crl. LJ 3077 wherein the Supreme Court held in paragraph-4 of the report that "forwarding a copy of the report (under section 13(2) of the Act) is not only a ritual, but a statutory requirement to be monetarily observed in all the cases."
8. In the impugned judgment, the learned Sessions Judge has proceeded on the basis that the provisions of Section 13(2) of the Act are directory in nature and, therefore, the violation thereof is an irregularity, not so vital as to affect the case of the prosecution.
9. However, in view of the conclusion given the Supreme Court that section 13(2) of the Act is mandatory and not directory, the learned Sessions Judge clearly erred in taking the view that he did. Since it is clear that there is nothing to show that the petitioner received the notice/report under section 13(2) of the Act, his right of getting a "second o
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pinion" was unlawfully denied. 10. In the circumstances, there is no option but to hold that the learned Sessions Judge erred in upholding the conviction of the petitioner. Since there is a material violation of law, the conviction passed by the trial court is set aside and the revision is allowed. Trial court records be sent back immediately. The bail bond is discharged.