1

 REPORTABLE   

 IN THE SUPREME COURT OF INDIA

  CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO.1167 OF 2019 (Arising out of S.L.P. (Criminal) No.4314 of 2015)

Vijendra                    .…Appellant(s)

                 Versus

State of Uttar Pradesh        ….Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

               Leave granted.  

2.     The instant appeal arises from the judgment

passed by the High Court of Allahabad in Criminal

Revision No. 1595 of 1988  in and by which the High

2

Court dismissed the revision filed by the appellant

thereby affirming the conviction of the appellant under

Sec.  7(1)/16(1)(a)(i)  of  Prevention of  Food Adulteration

Act, 1954.

3.  Sri R.C. Kansal, Food Inspector filed a complaint

stating that on 16.10.1979, at about 8:00 AM, while he

was posted as Food Inspector at Primary Health Centre

Bhojpur, he found the appellant taking buffalo milk for

sale on the Acchapalgarhi Road, Pilakhuwa, District

Ghaziabad.  On demanding license from Appellant, it

was revealed that he did not have any license for selling

the milk.   Suspecting adulteration in the milk,

complainant prepared a notice Ex.6 and gave a copy to

the appellant.   After that, in the presence of public

witness Radhey Shyam/PW­3, the complainant

purchased 660 ml milk for 1 Rupee 65 paise and gave

the money to the appellant and took thumb impression

of the witness.  The purchased milk was divided equally

and filled in 3 clean bottles.  The bottles were sealed in

accordance  with the  rules  and  labels  were  pasted  on

3

them.  Thumb impression of the Appellant was taken on

the labels posted on the bottles.   One sample was sent

to Public Analyst Lucknow on 17.10.1979.   The rest of

the 2 bottles were submitted before the office of Chief

Medical Officer, Ghaziabad.  The Public Analyst received

the sample on 18.10.1979, who prepared report Ex.No.

4 dated 15.11.1979 with the finding that the sample of

buffalo milk was deficient by 12% in milk fat and 27% in

non­fatty solids.   The sample  was thus found to be

adultered.

4. The complainant submitted an application along

with relevant material seeking consent for prosecution.

The  Chief  Medical  Officer/Sri. Y.K.  Bhushan granted

consent  for  prosecution under Section 7(1)/(16)(1)(a)(i)

of Prevention of Food Adulteration Act vide order dated

06.02.1980.

5. After that, the complainant prepared the

complaint/Exhibit A­8 and produced it before the court

on  18.03.1980,  whereupon  the court took  cognizance

and criminal case No. 787 of 1986 was registered.

4

6.  The Public Analyst’s report was forwarded to the

Appellant by registered post on 07.04.1980.

7. The prosecution examined the complainant/R.C.

Kansal as PW­1, Jaipal Singh/clerk in the office of Chief

Medical Officer as PW­2 and Radhey Shyam, as PW­3.

PW­2 stated  in his  statement that  on 07.04.1980,  he

sent the report of the Public Analyst to the Appellant by

registered post.   PW­3, who is an independent witness,

was declared hostile by the prosecution.  The appellant,

in  his turn,  pleaded  not  guilty.  He  however  did  not

produce any evidence in defence.

8.  Before the Trial Court, it was argued on behalf of

the  appellant that the  independent witness/PW­3 has

not supported the case of the prosecution and there is

non­compliance of Section 10 (7) of the Food

Adulteration Act.   Appellant further alleged non­

compliance of provisions of Section 13 (2) of the Food

Adulteration  Act.   Regarding PW­3 being hostile, the

trial court opined that  according to the complainant,

sample has been taken in the presence of independent

5

witness.   It has further observed that the Supreme

Court in the case of  Ram Lubhaya vs. Municipal

Corporation, 1975 FAJ page no. 253, held that it is not

a rule of law that guilt  cannot be proved only on the

evidence  of  Food Inspector.  Regarding  compliance  of

provisions of Sec. 13 (2) of Prevention of Food

Adulteration Act, the court held that the compliance is

clear from the statement of PW­2 that report of public

analyst and letter of Chief Medical Officer has been sent

to the address of the appellant through registered

receipt dated 07.04.1980.   The court accordingly

convicted the appellant and sentenced him to 6 months

rigorous imprisonment and fine of Rs. 1000/­ with

default sentence.

9.  Appeal filed by the Appellant was also dismissed

with the finding that the appellant has been rightly

convicted by the trial court.

10.  The appellant herein then filed Criminal Revision

No. 1595 of 1988 before the High Court contending that

there  was non­compliance of Section 10 (7) of Food

6

Adulteration Act  inasmuch as no independent witness

supported the prosecution case and of Section 13 (2) of

the Food Adulteration Act inasmuch as the application

was filed before the Magistrate on 18.03.1980, while the

report  of  Public  Analyst  was  sent  on 07.04.1980, i.e.

with delay of almost 19 days.   The High Court rejected

both these objections raised by the Appellant,  holding

that as far as Section 10 (7) is concerned, the objective

of this section is to ensure actual or genuine transaction

of sale.  The provision is mandatory to the extent that

the Food Inspector must make genuine efforts to get the

corroboration  of one  or  more  persons  present  on the

spot to witness his act of taking sample and completion

of other formalities.   Once such effort has been made,

but  in vain, it  cannot be said  that there  is  any non­

compliance of this section.   The High Court also relied

on the decision of the apex court in Shri Ram Lubhaya

(Supra)  wherein this court inter alia held that the

obligation which Section 10 (7) casts on the Food

Inspector is to ‘call’ one or more persons to be present

when he takes action. If none was willing to cooperate,

7

he cannot compel their presence.   Regarding the

submission that there is non­compliance of Section 13

(2) of the Food Adulteration Act, the High Court noted

that the requirement of this  section  is to send report

after institution of prosecution against the person from

whom sample was taken in such manner as prescribed

under Rule 9B of Prevention of Food Adulteration Rules,

1955.  Said Rule provides that the Local Authority shall,

within 10 days after institution of prosecution, forward a

copy of Analyst’s Report by registered post or by hand as

may be appropriate.   In the instant case, instead of 10

days, there is a gap of about 19 days.   The court held

that the purpose of Section 13 (2) is to enable the

accused, if he so desires, to make an application to the

court for getting the sample re­tested.  This  has  not

been done in the case at hand by the appellant at all

and  that  being  so, there is  substantial  compliance  of

Section 13 and it would not render the entire

prosecution illegal.  The revision was thus dismissed as

being devoid of merit.  The High Court further cancelled

the bail bonds and surety bonds of the appellant and

8

directed that he shall be arrested and lodged in jail to

serve out the sentence passed against him.

11.   It is the contention of the Appellant that since he

denied receiving notice as contemplated under Section

13(2) of Prevention of Food Adulteration Act and in the

absence of any proof of postal receipt or

acknowledgement,  mere  statement  of  PW­1 and PW­2

that notice was sent by registered post would not suffice

to warrant conviction of the appellant.  Sending of notice

under Section 13 (2) by registered post has to be proved

on record by documentary evidence which has not been

done in the instant case.  Further the said notice should

have been sent within 10 days from the date of receipt of

report  of  public  analyst  whereas in the  present  case,

admittedly the notice was sent after 20 days.  Moreover,

there is failure of compliance of mandatory provisions of

Rules 17 and 18 of Prevention of Food  Adulteration

Rules, rendering the conviction recorded by courts

below unwarranted and unjustified.

9

12. The respondent,   on the  other  hand,  aver that

Section 13 (2)  of  Prevention  of  Food  Adulteration  Act

and Rule 9A of Prevention of Food Adulteration Rules

use the expression “forward” and not “serve” or “deliver”;

thus  the  contention of the  appellant that  he  was not

served with notice under Section 13 (2) merits no

consideration.   Moreover, the Appellant could very well

have applied to the court to send one of the samples to

the Central Food Laboratory, but this has not been done

in the case at  hand.   Therefore, the appellant cannot

contend that there has been prejudice, merely because

of non­compliance or defective compliance of provisions

of law.  

13. From the above narration, it is no doubt seen that

all the three Courts have held against the appellant and

have sentenced him accordingly.   Though in that

circumstance, the reappreciation of evidence which led to

the conviction  may not arise, this Court is certainly

required to examine as to whether the requirement

contemplated under the Act,  1954 and the Rules 1955

10

has  been complied  with  by the  Authorities  as  per the

requirement in terms of the safeguard provided therein.

The  primary  contention  of the learned  counsel for the

appellant as noticed above is that in respect of the

sample said to have been collected on 16.10.1979, the

report was submitted by the Public Analyst,  Pilakhuwa

on 15.11.1979 indicating that the milk sample was

deficient by 12 per cent in milk fat and 27 per cent in

non­fatty solids which were   below the prescribed

standard and hence the sample was reported to be

adulterated.   Pursuant to the such report the complaint

was  filed before the  learned Magistrate on 18.03.1980.

Subsequent thereto the copy of the report of the Analyst

is  stated to  have been despatched to the  appellant  on

07.04.1980.   It is in that view, the contention has been

raised by the learned counsel for the appellant that the

same is in violation of the provision contained in Section

13(2) of the Act, 1954.  In this regard, it is contended that

sub­section (2) to Section 13   of the Act, 1954 provides

that the Authority  on receiving the copy of the report of

the result of analysis and on institution of prosecution,

11

forward a copy to the person and it would be open for

such person to make an application to the Court within a

period of 10 days from the date of the receipt of the copy

of the report to get the sample of the article kept by the

Local (Health)  Authority  analysed  by the  Central  Food

Laboratory.   In that regard, Rule 9B of Rules, 1955

provides that the Local (Health) Authority shall send the

report based on which the action is taken within 10 days

after institution of the prosecution.  Such report is to be

sent by registered post or by hand to the person from

whom the sample of the article was taken by the Food

Inspector.   

14. In the instant case, the contention put forth is that

firstly no such report of the Analyst has been  made

available to the appellant and there is no proof of delivery

of the report.   It is contended that even though the

prosecution had stated that the report was despatched

on 07.04.1980, keeping in view that the prosecution was

instituted by filing the application before the learned

Magistrate  on 18.03.1980  the  very  alleged despatch of

12

the report is beyond the period of 10 days as

contemplated in the Rule as stated above.  On this aspect

the learned Magistrate, while rejecting the contention has

held that the report of the Public Analyst was sent to the

appellant by registered post on 07.04.1980 which is

within the period of 20 days and since such report was

sent within a reasonable time  the appellant  cannot  be

said to have been prejudiced in any manner.  It is further

observed  that  he  was at liberty to  move  the  Court for

sending a sample to the Director of Central Food

Laboratory, Calcutta for analysis but he did not exercise

his right in this respect.  The learned Additional Sessions

Judge in his judgment while considering this aspect has

held that the Food Clerk, Shri Jaipal Singh (PW­2) has

stated that the report of the Public Analyst was sent to

the appellant by registered post on 07.04.1980.  On this

very aspect the learned Judge of the High Court has also

recorded that Shri Jaipal Singh (PW­2) who is the clerk of

the Food Inspector (PW­1) has proved the fact that the

Public Analyst’s report was sent to the appellant by

registered post on 07.04.1980.   In that background, the

13

High  Court on referring to the provision contained in

Section 13(2) of the Act 1954 read with Rule 9B of the

Rules, 1955 has held that the purpose of Section 13(2) is

to enable the accused if he so desires, to  make an

application to the Court for getting sample retested.  The

learned Judge was swayed by the fact that the appellant

herein who was the accused has not made such

application at all and in that light the learned Judge has

arrived at the conclusion that there is substantial

compliance of Section 13 of the Act, 1954.

15.       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

14

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

15

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.

16. Further in the instant facts, it is noticed that the

very manner in which the prosecution has put forth its

case will disclose that the Food Inspector on 16.10.1979

found the appellant taking milk for sale and when licence

was demanded he  did  not  possess the  same.   In that

background he had collected the sample of 660 ml. milk

and thereafter proceeded in the matter. In such

circumstance, it was at the outset required to establish

that the accused was regularly carrying on such business

and in that circumstance  while inspecting had found

adulterated  milk  which  was  being sold  by  him to the

customers.   No doubt the Food Inspector has examined

himself as PW­1 and stated with regard to the incident,

the manner in which the sample was taken and that the

same was sent for analysis but has not been clearly spelt

out.   In the instant facts, though it is contended on

behalf of the  prosecution that as  per the requirement

16

under Section 10(7)  of the Act,  1954 one Shri  Radhey

Shyam, 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 learned

Magistrate   has in that circumstance held that it would

be sufficient to rely on the evidence of PW­1 despite not

being supported by any other witness as PW­1 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 and when such independent

witness has not supported the case of the prosecution.

The manner as to whether the sample was appropriately

taken after  properly  stirring the  milk  and whether the

same was  sent for  analysis  also in  such manner  has,

therefore, not been established.   This is more so in the

circumstance where milk which is a primary product has

fat content and the fat content would also depend on the

appropriate manner in which the sample is taken after

stirring.  In this regard, it is apposite to take note of the

decision rendered by this Court in the case of  K.

17

Harikumar vs. Food Inspector, Punaloor Municipality

(1995)  Supple  3 SCC 405   relied upon by  the  learned

counsel for the appellant, wherein while considering the

provisions of the Act, 1954 with regard to the sample of

curd which was the subject matter therein, it was held

that in order to attain homogeneity in curd, stirring and

churning  may  become necessary for the ingredients  of

the milk solid non­fat and milk solid fat getting

consistency in order to determine the percentage in their

completeness.  

17. In that background, in the instant case, as already

noticed the Public Analyst had opined that the  milk

sample was deficient by 12 per cent in milk fat and 27

per cent in non­fatty solids.   The said results  would

become relevant only if it is established that the sample

taken for such analysis was also in a proper manner after

stirring which would make the fat and non­fat into

homogenous mixture.  Hence, in that regard appropriate

evidence  was  necessary  more particularly,  when  PW­3

who was claimed to be an independent witness has not

18

supported the prosecution. In the facts and

circumstances of the present case, in our view, the

uncorroborated testimony of PW­1 – Food Inspector

cannot be relied upon to sustain the conviction.  

18. 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.

19.  Before parting we would like to place on record the

able assistance rendered by the learned counsel for the

19

appellant  who  was appointed through Supreme  Court

Legal Services Committee.

         ……………………….J.                                                   (R. BANUMATHI)

……………………….J.                                               (A.S. BOPANNA)

New Delhi, July 31, 2019