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PETITIONER:

RAJENDRA AND TWO OTHERS

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH

DATE OF JUDGMENT18/07/1991

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

AHMADI, A.M. (J)

RAMASWAMI, V. (J) II

CITATION:

1991 AIR 1757 1991 SCR (3) 96

1991 SCC (3) 620 JT 1991 (3) 288

1991 SCALE (2)105

ACT:

Prevention of Food Adulteration Act, 1954/Prevention of

Food Adulteration Rules, 1955: S. 7 r/w s. 16, s. 13(2)/rr.

7(3), 9A:--Food adulteration--Food article found adulterat-

ed---Delay in analysis report --Local Health Authority not

sending `immediately after prosecution' the report to appel-

lants Acquittal by trial Magistrate--High Court recomputed

the period and found the report sent within prescribed

period--Order of conviction and six months' imprisonment

with fine awarded to each appellant--Validity of.

Non-compliance of r. 9-A not fatal--Word `immediately'

interpreted to convey 'reasonable despatch and promptitude'.

Partnership concern: Food adulteration--Food article

sold by shopkeeper found adulterated--Alleged partnership of

three brothers-Burden of proof of partnership on the prose-

cution--benefit of doubt given to remaining two appellants.

HEADNOTE:

Appellant No. 1 was found exhibiting and offering for

sale tea dust. P.W. 1, the Food Inspector purchased tea dust

in the requisite quantity for test. Appellant no. 1 told

P.W. 1 that the shop which was being run by him was a part-

nership concern of the three brothersappellant no. 1 to 3.

On receipt of Public Analyst's report, prosecution was

lanuched against the appellants under s. 7 read with s. 16

of the Prevention of Food Adulteration Act, 1954.

Before the trial Magistrate the facts regarding sale by

appellant no.1 of the food article and the same being adul-

terated as reported by the Public Analyst were not disputed.

The appellants however, argued that the Public Analyst did

not send the report within the period prescribed under r.

7(3) Prevention of Food Adulteration Rules, 1955 and the

Local Health Authority did not forward the copy of the

result of the analysis to the appellants 'immediately' after

institution of the prosecution as envisaged by r. 9A. Since

there was a delay of nearly a month on that count, the trial

Magistrate viewed this lapse as fatal to the prosecution. He

also held that in the covering letter while sending the

report, it was not mentioned that the appellants had a right

to have analysed the second sample by the Central Food

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Laboratory in terms of s. 13(2) of the

96

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Act. He, therefore, acquitted the appellants.

On appeal by the State, the High Court reversed the

order of acquittal. It convicted the appellants and sen-

tenced each of them to six months' rigorous imprisonment and

to pay a fine of Rs.5000 each. Aggrieved the appellants

preferred the appeal by special leave to this Court.

On consideration of evidence regarding guilt of all the

appellants and requirements of s. 13(2) of the Prevention of

Food Adulteration Act, 1954 and rr. 7(3) and 9A of the

Prevention of Food Adulteration Rules, 1955,

Disposing of the appeal, this Court,

HELD: 1. In the instant case, there was no basis to

sustain the conviction of appellants no. 2 and 3. There was

no evidence worth the name to conclusively prove their

complicity beyond reasonable doubt. The only case set up by

the prosecution against these appeliants was that appellant

no. 1 was alleged to have told the Food Inspector that the

shop was being run in partnership by him with his these two

brothers. Appellant no. 1 alone made the sale in question to

the Food Inspector. Burden was on the prosecution to prove

the existence of partnership. Even if the Food Inspector is

believed that appellant no. 1 told him that the shop was

being run in partnership, that per he was not enough to

inculpate the remaining two appellants without further

evidence. There is an area of doubt in this sphere and

extending the same to appellants no. 2 and 3, they are

acquitted. [100G-H; 101A-B]

The case of first appellant stood singled out. His

conviction was well deserved, which should be maintained and

the sentence confirmed. However, fine was to be reduced to

Rs.1,000. [101C]

2. The expression 'immediately' in r. 9A of the Preven-

tion of Food Adulteration Rules, 1955, is intended to convey

a sense of continuity rather than urgency. What must be done

is to forward the report at the earliest opportunity, so as

to facilitate the exercise of the statutory right under s.

13(2) in good and sufficient time before the prosecution

commences leading evidence. Non-compliance with r. 9-A is

not fatal. It is a question of prejudice. The word 'immedi-

ately' was to be interpreted to convey 'reasonable despatch

and promptitude' intending to convey a sense of continuity

rather than urgency. The High Court was right in holding

that failure to send instantly a copy of the analysis

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report to the appellants was of no consequence. [100A-F]

Tulsiram v. State of Madhya Pradesh, [1984] 4 SCC

487, relied on.

3. On the question of compliance of r. 7(3) in regard to

the period of submission of the report by Public Analyst to

the Local Health Authority, the High Court's conclusion,

reached by it after recomputing the period, that such duty

was performed within the prescribed period was a finding of

fact and nothing was addressed before this Court in that

regard. [99G-H; 100A]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

168of 1991.

From the Judgment and Order dated 26.7.1989 of the Madya

Pradesh High Court in Crl. A. No. 102 of 1984.

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G.L. Sanghi and A.K. Sanghi for the Appellants.

U.N. Bachawat and Uma Nath Singh for the Respondent

The Judgment of the Court was delivered by

PUNCHHI, J- This appeal by special leave is

against the judgment and order of the Indore Bench of the

Madhya Pradesh High Court rendered in Criminal Appeal No.

102 of 1984.

The facts are few and simple. The first appellant

Rajendra, on 30th June, 1982, while running a shop under the

name and style of M/s. Kumarvad Bros. in Khargaon Municipal-

ity, was found exhibiting and offering for sale tea dust,

the quantity of which was about 11/2 kgs. D.P. Nath, P.W. 1,

the Food Inspector for Khargaon purchased tea dust in the

requisite quantity for test. The purchased tea was dealt

with in the prescribed manner as per rules on the subject.

The purchase and other attendant documents were witnessed by

Madan, P'W' 2 and another.

The Public Analyst, Bhopal, to whom one of the three

samples

was sent for analysis opined that the food article fell

below the prescribed standard as its contents were present

in quantities not within the prescribed limits of variabili-

ty. The report of the Public Analyst was communicated to the

first appellant as well as to his two brothers, the second

and third appellants, because it appears that at the time of

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the sale of the tea to the Food Inspector, he was told by

the first appellants that the court's intervention could be

sought to have one of three brothers. The accompanying

covering letter suggested to the appellants that the court's

intervention could be sought to have one of the samples kept

by the Local Health Authority examined one more time. The

appellants did not avail of the opportunity and faced the

prosecution launched under section 7 read with section 16 of

the Prevention of Food Adulteration Act, 1954 before the

Chief Judicial Magistrate, Khargaon.

Before the Trial Magistrate the facts as alleged by the

prosecution regarding sale by the first appellant to the

Food Inspector and of the article of food being adulterated

as per report of the Public Analyst were not disputed.

Shelter, however, was taken behind the provisions of Rules

7(3) and 9-A of the Prevention of Food Adulteration Rules,

1955, as then standing, whereunder the Public Analyst was

required to send his report to the Local Health Authority

within 45 days, which he had not done, and the Local Health

Authority was required to 'immediately' after the institu-

tion of prosecution forward a copy of the report of the

result of the analysis to the appellants. Since there was a

delay of nearly a month on that count the Trial Magistrate

viewed this lapse as total to the prosecution. Furthermore,

the Trial Magistrate took the view that in the covering

letter while sending the report, nowhere had the appellants

been told that they had a right to have the second sample

with the Local Health Authority analysed by the Central Food

Laboratory in terms of section 13(2) of the Act. The Trial

Magistrate perhaps had in mind that had this been mentioned,

the appellants may have chosen to avail of the opportunity

of the analysis by the Central Food Laboratory and such

report would have superseded the report of the Public Ana-

lyst, whether for or against the appellants. On these two

grounds the learned Trial Magistrate recorded acquittal of

the appellants. The High Court on appeal by the State of

Madhya Pradesh, reversed the Order of acquittal and recorded

conviction of the appellants add sentenced each one of them

to six months' rigorous imprisonment and to pay a fine of

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Rs.5000 each. This has occasioned the appeal before us.

Our attention was brought to the aforesaid rules and

section 13(2) of the Act and the case law on the subject.

Rule 7(3) requires that the Public Analyst shall within a

period of 45 days of the receipt of any sample for analysis,

deliver to the Local Health Authority, a report of the

result of such analysis in Form III. The Trial Magistrate

found that this duty was not discharged by the Public Ana-

lyst within

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the prescribed period of 45 days. The High Court, however,

recomputed the period and came to the conclusion that such

duty was performed within the prescribed period. That find-

ing is one of fact and nothing has been addressed to us in

that regard. So far as the Local Health Authority being

required to 'immediately' after the institution of prosecu-

tion send a copy of the report of the result of the analysis

in Form III, its failure to do so instantly was held to be

of no consequence, relying on a judgment of this Court in

Tulsiram v. State of Madhya Pradesh, [1984] 4 SCC 487 where-

in the word 'immediately' was interpreted to convey 'reason-

able despatch and promptitude' intending to convey a sense

of continuity rather than urgency. This Court then ruled at

page 497 as follows:

"The real question is, was the Public Ana-

lyst's report sent to the accused sufficiently

early to enable him to properly defend himself

by giving him an opportunity at the outset to

apply to the court to send one of the samples

to the Central Food Laboratory for analysis.

If after receiving the Public Analyst's report

he never sought to apply to the court to have

the sample sent to the Central food Laborato-

ry, as in the present case, he may not be

heard to complain of the delay in the receipt

of the report by him, unless, of course, he is

able to establish some other prejudice. Our

conclusions on this question are: The expres-

sion 'immediately' in Rule 9-A is intended to

convey a sense of continuity rather than

urgency. What must be done is to forward the

report at the earliest opportunity, so as to

facilitate the exercise of the statutory right

under section 13(2) in good and sufficient

time before the prosecution commences leading

evidence. Non-compliance with Rule 9-A is not

fatal. It is a question of prejudice."

Tulsirarn's case was thus a complete answer to the conten-

tion to contrary.

The next question which requires consideration is wheth-

er all the appellants are guilty of the crime. From the

material available on the record, we find no basis to sus-

tain the conviction of the second and third appellants, Om

Prakash and Subhash. There is no evidence worth the name to

conclusively prove their complicity beyond reasonable doubt.

The first appellant is alleged to have told the Food Inspec-

tor on the date of sale of tea dust that the shop was being

run in partnership by him with his two brothers. This was

the only case set up by

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the prosecution at the trial. No evidence was gathered or

tendered to prove the partnership. On the facts, which are

eloquent, the first appellant alone made the sale of tea

dust to the Food Inspector and not all. Burden was on the

prosecution to prove the existence of the partnership. We do

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not propose to indulge in the refinery of civil law but have

to adopt the cautious approach to adjudge criminality of the

accused appellants. Even it the Food Inspector is believed

that the first appellant told him that 'the business on the

shop was being run in partnership that per he was not enough

to inculpate the remaining two appellants without further

evidence'. We find an area of doubt in this sphere and

extending the same to the second and third appellants order

their acquittal. They be discharged from their bail bonds.

Fine, if paid, be refunded to them.

The case of the first appellant stands singled out. His

conviction was well deserved which is hereby maintained

confirming the sentence of imprisonment but reducing the

fine to Rs. 1000, in default of payment of which further

rigorous imprisonment for one month is ordered. He shall

surrender to his bail bonds. The excess fine, if paid, be

refunded to the first appellant.

As a result the appeal of appellants 2 & 3 is allowed

and that of appellant no. 1 dismissed, subject, however to

the reduction of sentence.

R.P. Appeal dis-

posed of.

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