IMPORTANT POINT
Mere oral statement that analyst’s report was dispatched to accused is not sufficient. The delkivery should be established by adducing evidence.

JUDGMENT :

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 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 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 non-fatty 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.

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 noncompliance 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 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