The prosecution must provide positive evidence of the actual despatch of the required document by registered post to ensure compliance with statutory requirements.

JUDGMENT :

R.K. Dash, J. - The petitioner stood prosecuted u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short the Act') for his having kept adulterated turmeric powder, an article of food, for sale for human consumption in his shop. Learned Judicial Magistrate, First Class, Balangir, upon trial, found the petitioner guilty of the offence and consequently convicted and sentenced him to undergo imprisonment for six months and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for a period of two months. Feeling aggrieved, the petitioner carried appeal to the Sessions Court and the learned Additional Sessions Judge on re-appraisal of "the evidence concurred with the findings of the trial Court and dismissed the appeal. Hence the revision.

2. Several grounds have been taken challenging correctness of the findings recorded by both the Courts below, but in course of argument the learned counsel for the petitioner confined his submission to the only ground that there was infraction of the mandatory provision of Section 13(2) of the Act, inasmuch as copy of the public analyst report was not supplied to the petitioner so as to afford him an opportunity to challenge the same by getting the sample analysed by the Central Food Laboratory.

3. The matter was heard by Hon'ble L. Rath, J. It was urged before his Lordship on behalf of the petitioner that since the petitioner denied of having received the copy of the report was alleged to have been sent through registered post, non-filing of the acknowledgement receipt constitutes lack of proof of actual receipt of the report. In support of such contention reliance was placed on two earlier Single Bench decisions of this Court reported in Srinivas Pradhan Vs. State of Orissa, and (1990) 3 OCR 374 (Bidyadhar Jena v. State of Orissa). Disagreeing with the view expressed in the aforesaid two judgments, his Lordship referred the matter to be placed before an appropriate Bench for decision. Consequently the case was heard by the Division Bench on the question whether despatch of copy of the report by registered post, if proved, amounts to sufficient compliance of the requirement of Section 13(2) of the Act, Having made an indepth study of the various judicial pronouncements governing the field, the Court observed that in view of the presumption of due service as provided in Section 27 of the General Clauses Act, the burden which initially lies upon the prosecution will stand discharged, provided it could prove that the required document had been duly sent by properly addressing, prepaying and posting by registered post. In view of such finding, the only question that remains to be considered from the available materials as to whether prosecution successfully proved that copy of the Analyst's report had been sent despatched by registered post at the address of the petitioner. Both the Courts below appear to have not taken into consideration this aspect of the prosecution case while holding that there had been due compliance of the statutory requirement of Section 13(2) of the Act. The only evidence, reference of which can be made in the context, is of PW 1, the Food Inspector. Admittedly he himself did not send the copy of the Analyst's report by registered post. As deposed to by him, after filing of the prosecution report the C. D. M. O., Bolangir sent the copy of the Public Analyst's report along with a letter by registered post intimating that if he so desired, he may make an application to the Court to get the sample analysed by the Central Food Laboratory, Calcutta. He does not say as to if he has any persona! knowledge about the actual despatch of the report by registered post. Neither the C. D. M. O. nor any of the staff of his office was examined to prove about the despatch of the copy of the Analyst's report to the petitioner as required under law. It is needless to mention that PW 8 proved the postal receipt, Ext. 13, but the same does not prove any-thin