Page No.# 1/11 GAHC010008282013 2025:GAU-AS:13391 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./262/2013 DINESH JADAB RAI S/O SRI RAM IKBAL RAI R/O C/O BARTHAKUR MILLS, ULUBARI, GHY-7 P.S. PALTANBAZAR, DIST. KAMRUP M, ASSAM. VERSUS THE STATE OF ASSAM Advocate for the Petitioner : MS.T ROY, MR. M K MISHRA, AMICUS CURIAE,MR.A R MEDHI,MS M BHATTACHARYA Advocate for the Respondent : PP, ASSAM, , BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR JUDGMENT Date : 18-09-2025 Heard Mr. M.K. Mishra, learned Amicus Curiae appearing for the petitioner. Also heard Mr. R.J. Boruah, learned Additional Public Prosecutor appearing for the State respondent. 2. The petitioner, by way of instituting the present proceeding has presented a challenge to the judgment dated 03.06.2013 passed by the Page No.# 2/11 learned Additional Sessions Judge, No.1 Kamrup, in Crl.A. 82/2011 upholding the conviction and sentence passed by the learned Chief Judicial Magistrate, Kamrup(M) vide judgment dated 17.11.2011 in Case No.2806c/2005, by which, the petitioner, herein was convicted under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (in short, ‘Act of 1954’) and sentenced to undergo SI for 6 (six) months with a fine of Rs.2,000/- (Rupees two thousand) only in default, to undergo Simple Imprisonment for further 2 (two) more months. 3. The prosecution case, in brief, is that on 14.03.2005, Sri B.N. Pathak, Food Inspector (Sr.) Kamrup, Nalbari and Barpeta District, H.Q Guwahati, collected sample of 1500 mls cows’ milk from the petitioner, herein, in presence of witnesses. The collected sample of 1500 mls of milk was from a container containing approximately 20 litres of milk kept for sale, for human consumption on payment of Rs.25.50/- being the cost of the same. On 15.03.2005, one part of the sample so drawn along with a copy of the memorandum was sent under proper seal to the Public Analyst, Guwahati for analysis. The remaining two parts of the sample along with the copies of the memorandum in a sealed packet were submitted to the Local Health Authority on the same day. The Public Analyst to the Govt. of Assam on analysis of the sample, so forwarded, in his report has opined that the sample of milk was deficient in milk fat, than the prescribed minimum standard as per provision of Food Adulteration rules. The Public Analyst had opined that the sample was adulterated under Section 2(ia)(a) of the Prevention of Food Adulteration Act, 1954. Page No.# 3/11 The Food Inspector on obtaining necessary consent for prosecution against the accused submitted the offence report before the Trial Court. After submission of the Offence Report, the Local Health Authority issued a notice to the accused under Section 13(1) of the Act of 1954 through registered post. The accused, thereafter, appeared before the Court and the particulars of the offence under Section 16 read with Section 7 of the Act of 1954, being read over and explained to him, he pleaded not guilty and claimed to be tried. Accordingly, trial ensued. During trial, the prosecution examined 2 (two) witnesses in support of his case and thereafter, the statement of the petitioner, herein, was recorded under Section 313 Cr.P.C. During the trial, the petitioner examined 2 (two) witnesses as defence witnesses. On conclusion of the trial, the learned Trial Court on appreciation of the evidences coming on record was pleased vide judgment dated 17.11.2011, to convict the petitioner, herein, for an offence punishable under Section 16(1)(a) read with Section 7 of the Act of 1954 and sentenced the petitioner, herein to suffer SI for 6 (six) months with a fine of Rs.2,000/- (Rupees two thousand) in default, to suffer SI for another 2 (two) months. The petitioner being aggrieved, assailed the conviction by way of filing an appeal being Crl.A. 82/2011, before the Court of learned Sessions Judge, Kamrup, at Guwahati. The said matter was taken up for disposal by the Court of learned Additional Sessions Judge No.1, Kamrup. Upon considering the contentions raised by the petitioner, herein, and also appreciating the evidences coming on record, the learned Trial Court vide judgment dated 03.06.2013, proceeded to dismiss the appeal, thereby, upholding the conviction and sentencing of the petitioner, herein, by the learned Trial Court. Page No.# 4/11 4. Mr. M.K. Mishra, learned Amicus Curiae has submitted that the decision of the learned Trial Court as well as that of the Appellate Court would not be sustainable, inasmuch as, the proceedings were instituted against the petitioner, herein, in violation of the Provisions of Sub-Section (2) of Section 13 of the Act of 1954. 5. Mr. M.K. Mishra, learned Amicus Curiae by referring to the provision of Section 13 more particularly, Sub-Section (2), thereof, has submitted that on receipt of the report of the result of the Analysis, under Sub-Section (1) to Section 13, 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 article of food was taken and the person if any whose name address or other particulars are disclosed under Section 14(a), in such manner as may be prescribed, to forward 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 person that if it is so desired, either or both of them may make an application to the Court within a period of 10 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, analyzed by the Central Food Laboratory. 6. Mr. M.K. Mishra submits that the evidences coming on record during the trial only establishes the fact that a copy of the said report was forwarded to the petitioner, herein, by the Local Health Authority by way of registered post. However, it cannot not be determined as to whether the said report was actually served upon the petitioner, herein. He submits that the copy of the letter issued by the Local Health Authority to the petitioner under Section 13(2) of the Act of 1954 was exhibited as Exhibit-15 and the postal receipt was exhibited as Exhibit-16. However, he submits that there is no material brought on record to demonstrate the actual service of the Page No.# 5/11 said Exhibit-15 upon the petitioner, herein. 7. Mr. M.K. Mishra submits that the evidences coming on record does not further reveal that the prosecution had also verified the fact as to whether the notice was infact served upon the petitioner or not. He submits that the provisions of Sub-Section (2) of Section 13 of the Act of 1954 provides a valuable right to the petitioner, herein and the same in view of the fact that the notice was not served upon him, being not permitted to be exercised, the conviction recorded by the Trial Court as well as by the Appellate Court has been rendered unwarranted and unjustified. In this case, he has placed reliance on the decision of the Hon’ble Supreme Court in the case of Vijendra –vs- State of Uttar Pradesh reported in (2020) 15 SCC 763. 8. Mr. R.J. Baruah, learned Additional Public Prosecutor has submitted that the Exhibit 15 and 16 were exhibited by the prosecution, without any objection from the petitioner, herein, during the trial and accordingly, he submits that it would not be open to the petitioner, herein to raise the issue with regard to service upon him the Exhibit 15 communication, issued by the Local Health Authority in the matter. He submits that the conclusions drawn by the learned Trial Court, as well as Appellate Court has been so done upon a due and proper appreciation of the evidences coming on record and accordingly, the same would not call for interference from this Court. 9. I have heard the learned counsel for the parties and also perused the materials available on record. As Mr. M.K. Mishra has raised the issue with regard to the violation of the provision of Sub-Section (2) of Section 13 of the Act of 1954, the provision of Section 13 being relevant is extracted herein below:- Page No.# 6/11 “13. Report of Public analyst.— (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. (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 14A, 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. (2A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition. (2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and the signature or thumb impression, as the case may be, is not tampered with, and dispatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. (2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court: Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B). Page No.# 7/11 (2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution. (2E) If, after considering the report, if any, of the food inspector or otherwise the Local (Health)Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by the other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.] (3) The certificate issued by the Director of the Central Food Laboratory [under sub-section (2B)] shall supersede the report given by the public analyst under sub-section (1). (4) Where a certificate obtained from the Director of the Central Food Laboratory [under sub-section (2B)] is produced in any proceeding under this Act, or under sections 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis. (5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code (45 of 1860). [Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory [not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A) of section 16] shall be final and conclusive evidence of the facts stated therein.] [Explanation—In this section, and in clause (f) of sub-section (1) of section 16, Director of the Central Food Laboratory shall include the officer for the time being in charge of any Food Laboratory (by whatever designation he is known) recognized by the Central Government for the purposes of this section.]” Page No.# 8/11 10. The provision of Section 13(1) mandates that a sample being forwarded to the Public Analyst, the Public Analyst shall deliver, in such form as may be prescribed, a report to the Local Health Authority of the result of the Analysis of any article of food submitted to him for analysis. Sub-Section (2) of Section 13 mandates that on receipt of the report of the result of the analysis under Sub-Section (1) of Section 13, to the effect that the article of food is adulterated, the Local Health Authority shall after institution of the prosecution against the person from whom the sample of the article of food was taken, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person, informing such person that if it is so desired, he may make an application to the Court within a period of 10 (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 analyzed by the Central Food Laboratory. 11. 11. The evidences brought on record reveal that on receipt of the report from the Public Analyst, the Local Health Authority, vide Exhibit 15 communication, forwarded the same to the petitioner, herein, and the same was sent by Registered post at the address of the petitioner, herein. Exhibit 16 is the postal receipt of the posting of the Exhibit-15 communication. 12. The learned Trial Court as well as Appellate Court noticing the fact that the Exhibit 15 communication was admittedly sent by registered post, as evident from Exhibit 16, proceeded to draw a presumption to the effect that the Exhibit 15 communication was received by the petitioner and accordingly, proceeded to draw a satisfaction with regard to the compliance of the provisions of Sub-Section (2) of Section 13 of the Act of 1954, by the prosecution. Page No.# 9/11 The Hon’ble Supreme Court in the case of Vijendra (supra) considering the issue had drawn the following conclusion:- “14. On this aspect of the matter, we take note that while adverting to the provision in Section 13(2) requiring to furnish the report of the Analyst to the accused as contemplated therein the learned Judges of all the three Courts have taken note of the evidence of PW2 Shri Jaipal Singh, the Food Clerk who claimed to have despatched the report by registered post on 07.04.1980. The learned Judges 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 this case, since as already noticed above 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 PW2 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. 19. Therefore, in that circumstance even if the other aspects are not adverted to, the very fact that the Analyst’s report being served not being proved and the sample being taken in an appropriate manner not being established, it would be sufficient to hold that the prosecution has not proved the guilt of the appellant beyond reasonable doubt and the conviction is not justified. In that view, the judgments dated 02.06.1987, 01.11.1988 and 09.12.2014 passed respectively by the Judicial Magistrate, Hapur, Ghaziabad, the Additional Sessions Judge Ghaziabad and the High Court of Allahabad are set aside and this appeal is allowed. The appellant is acquitted of the charge under Section 7(1)/16(1)(a)(i) of Prevention of Food Adulteration Act. 13. Applying the decision of the Hon’ble Supreme Court in the case of Vijendra (supra) to the facts of the present case, this Court finds that there is no evidence brought on record with regard to the actual service of Page No.# 10/11 the Exhibit-15 communication upon the petitioner, herein. This Court further notices that during the examination of the petitioner under Section 313, a specific question with regard to effecting of service upon him of Exhibit 15 communication was so put to him. The petitioner, herein, had responded to the said question as put to him by replying that the said notice was not received by him. In view of the fact that the Exhibit 15 communication was not shown to have been served upon the petitioner, and a valuable right available to the petitioner under the provision of Sub- Section (2) of Section 13 of the Act of 1954 being prevented to be exercised by him, this Court holds that the same would render the conviction of the petitioner, herein, by the learned Trial Court to be not justified. 14. The Appellate Court also not having considered the said aspect of the matter, in the considered view of the Court, the judgment of the Appellate Court upholding the conviction of the petitioner herein also stands vitiated. 15. In view of the above conclusions reached by this Court, this Court holds that the prosecution has not proved the guilt of the petitioner, herein, beyond reasonable doubt and his conviction is not justified. 16. Accordingly, the judgment and order dated 17.11.2011 passed by the learned CJM, Kamrup, Guwahati in Case No.2806c/2005 and the judgment dated 03.06.2013 passed by the learned Court of Additional Sessions Judge No.1, Kamrup(M) stands set aside. The appellant is acquitted of the charge under section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act, 1954. 17. Registry to send down the records to the learned Trial Court forthwith along with a copy of the present order for information and necessary action. Page No.# 11/11 18. Before parting with the records, this Court would place on record its appreciation for the able assistance rendered by Mr. M.K. Mishra, learned amicus curiae towards disposal of the revision petition. JUDGE Comparing Assistant