VIJENDRA versus STATE OF UTTAR PRADESH

Citation: [2019] 10 S.C.R. 790 · Decided: 31-07-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 10 S.C.R.
VIJENDRA
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 1167 of 2019)
JULY 31, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Prevention of Food Adulteration Act, 1954:
ss. 7(1)/16(1)(a)(i),10(7) and 13(2) – Notice by Food Inspector
(Complainant) suspecting adulteration in the milk – Sample of milk
purchased by complainant in the presence of public witness (PW3)
– Sample sent to Public Analyst –  Sample was found adulterated
by the Public Analyst –  Complaint filed before Magistrate –  Report
of the Public Analyst sent to the accused by registered post after 19
days of filing the complaint –  During trial PW3 turned hostile –
Plea of non- compliance of ss. 10(7) and 13(2) taken – The
Magistrate, the appellate Court as well as High Court convicted
the accused – Appeal to Supreme Court –  Held: Safeguard u/s.
13(2) is a valuable right – No evidence was brought on record to
indicate that the report of the Public Analyst was actually served or
delivered to the appellant – Despite the delay beyond 10 days from
the date of initiation of prosecution, even if despatch of the report
is taken as substantial compliance, in absence of proof of delivery
of the report, the right of the accused to seek reference within the
period of ten days stands defeated –  The provision u/s. 13(2) has
to be construed strictly, as the accused is made to suffer penal
consequences –  Therefore, report of Public Analyst cannot be made
basis for holding the accused guilty – The uncorroborated testimony
of the complainant/Food Inspector (PW1) cannot be relied upon to
sustain the conviction – Thus, the prosecution has not proved the
guilt of the accused beyond reasonable doubt – Therefore,
conviction is not justified –  Prevention of Food Adulteration Rules,
1955 –  r. 9B.
Allowing the appeal, the Court
HELD : 1. While adverting to the provision in Section 13(2)
of Prevention of Food Adulteration Act, 1954, requiring to furnish
   [2019] 10 S.C.R. 790
790
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the report of the Analyst to the accused as contemplated therein,
all the three Courts have taken note of the evidence of PW-2 the
Food Clerk who claimed to have despatched the report by
registered post on 07.04.1980.  They have, however, failed to
take note that no evidence was brought on record to indicate
that the report which is claimed to have been despatched was
actually served or delivered to the appellant.  The very purpose
of furnishing such report is to enable the accused to seek for
reference to the Central Food Laboratory for analysis if the
accused is dissatisfied with the report.  Such safeguard provided
to the accused under Section 13(2) of the Act is a valuable right.
In that view even if the despatch of the report on 07.04.1980 is
taken as substantial compliance though it is beyond the period of
10 days from 18.03.1980 i.e., the date on which  the prosecution
was lodged, in the absence of there being proof of delivery of the
report to the accused;  in the instant facts, the valuable right
available to the accused/appellant to seek for reference within
the period of 10 days stands defeated.  In that circumstance when
the appellant/accused is made to suffer the penal consequences,
it will have to be construed strictly. In the facts and circumstances
of the present case, since the report of the Analyst has not in fact
been served on the appellant and the mere despatch of the report
as per the statement of PW-2 was not sufficient.  If that be the
position, the entire case of the prosecution which revolves around
and is built upon the report of the Analyst cannot be made the
basis for holding the appellant/accused guilty in the present case.
[Para 15] [798-B-G]
2. Though it is contended on behalf of the prosecution that
as per the requirement under Section 10(7) of the Act, 1954, an
independent person had also witnessed the taking over of the
sample, the said witness did not support the case of the
prosecution. Though the Magistrate  has in that circumstance
held that it would be sufficient to rely on the evidence of PW-1
(Food Inspector) despite not being supported by any other
witness as PW-1 has no enmity with the accused, that by itself
would  not be sufficient in the instant facts, since the very
requirement of the provision is to collect the sample  in the
presence of an independent witness. [Para 16] [799-B-D]
VIJENDRA v. STATE OF UTTAR PRADESH
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[2019] 10 S.C.R.
3. Th

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