Mir Alfaz Ali, J.

Heard Ms. K. Deka, learned counsel for the revision petitioner and Mr. B.B. Gogoi, learned Addl. P.P., Assam for the State.

2. The petitioner herein was convicted under Section 7(1) R/W section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the PFA Act) and he was sentenced to imprisonment for 6 months and fine of Rs. 1000/- by judgment and order dated 11.06.2002 of the learned ADJM, Biswanath Chariali. On appeal, learned Sessions Judge vide his judgment and order dated 27.07.2006 dismissed the appeal and upheld the conviction and sentence of the petitioner.

3. Aggrieved by conviction and sentence of both the courts below, the accused petitioner, preferred the instant revision petition.

4. The short question raised in this revision is whether the provision of Section 13(2) of the PFA Act was complied with? If not, whether the prosecution stood vitiated for non-compliance of the above provision of the PFA Act.

5. Learned counsel for the revision petitioner submits that the specific stand of the accused was that he did not receive the notice under Section 13(2) PFA Act and therefore he was deprived of the right to get the sample analyzed by Central Food Laboratory (hereinafter referred to as CFL). Learned counsel for the revision petitioner further submits that compliance of the provision of Section 13 (2) of the PFA Act is mandatory and non-compliance of such provision in the present case, vitiated the entire proceeding and therefore, learned Trial Court ought to have acquitted the revision petitioner.

6. Resisting the above submission of the learned counsel for the revision petitioner, Mr. B.B. Gogoi, learned Addl. P.P., Assam, contended that notice was sent under Section 13(2) to the accused and to that effect, prosecution adduced sufficient evidence and therefore, there was no question of non-compliance of the provision of Section 13 (2) of the PFA Act and that the revision petition is devoid of merit.

7. The Food Inspector examining himself as PW-1 deposed that after launching the prosecution on the basis of the report of the public analyst, a copy of the report of the public analyst along with a notice under Section 13(2) of the PFA Act was sent to the accused petitioner by registered post. The Food Inspector also proved the copy of the notice as Ext. 19 and the postal receipt as Ext.20. In cross examination, he admitted that the acknowledgement card with regard to service of such notice has not been produced and proved. The accused petitioner in his examination under section 313 CrPC, 1973 categorically stated that he did not receive any notice under Section 13(2) of the PFA Act, nor he received any copy of the report of the public analyst. The accused while examining himself as DW-1 stated categorically that he did not receive the notice from the Local Health Authority.

8. While addressing the issue relating to service and receipt of notice as well as the report of the public analyst by the accused, learned Trial Court held that production of the copy of the notice under Section 13(2) of the PFA Act, which has been marked as Ext.19 and the postal receipt Ext.20 were sufficient for the prosecution to discharge its burden in respect of compliance of the provision of Section 13(2) of the PFA Act. Learned Trial Court further held, that though the accused, in his evidence denied to have received the notice under Section 13(2) of the PFA Act, such evidence of the DW-1 was not supported by any other witness and therefore, the evidence of DW-1 that he did not receive the notice was not believable. Above findings of the learned Trial Court shifting burden on the accused also appeared to have received support from the appellate court.

9. In a criminal case, the accused is always presumed to be innocent, unless his guilt is proved beyond reasonable doubt and it is the burden of the prosecution to prove each and every element of the offence to establish the guilt of the accused. The accu