HIGH COURT OF MADHYA PRADESH BENCH GWALIOR SINGLE BENCH: HON'BLE SHRI JUSTICE G.S. AHLUWALIA Criminal Revision No.303/2008 .........Applicant: Narayan Prasad Sahu Versus .......Respondent : State of M.P. ---------------------------------------------------------------------- Shri M.K. Jain, Counsel for the applicant. Shri BPS Chauhan, Public Prosecutor for the respondent/State. ---------------------------------------------------------------------- Date of hearing : 26/04/2018 Date of Judgment : 03/05/2018 Whether approved for reporting : ORDER
(03/05/2018) This criminal revision under Section 397/401 of Cr.P.C. has been filed against the judgment dated 22.04.2008 passed by 2nd Additional Sessions Judge (Fast Track Court), Ganjbasoda, District Vidisha in Criminal Appeal No.199/2007 thereby affirming the judgment and sentence dated 12.10.2007 passed by JMFC, Ganjbasoda, District Vidisha in Criminal Case No.382/2007. The applicant has been convicted and sentenced for an offence under Sections 7(i), 7(v) read with Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act and the applicant has been sentenced to undergo the rigorous imprisonment of six months and a fine of Rs.10000/- for an offence under Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act.
The necessary facts for the disposal of the present revision in short are that on 16.1.2002 in the weekly market, the Food Inspector Ram Singh carried out the inspection and the applicant was running a grocery shop. After introducing himself, the Food Inspector, asked for the license but the same was not made available by the applicant. The Gram Dal was purchased by the Food Inspector after making payment of Rs.18/- @ of Rs.24/- per Kg. Three samples of 250 Gms. each of Gram Daal were prepared. The said Gram Daal was sent for Public Analyst and in the report, the said Daal was found to be adulterated. After issuing a notice under Section 13(2) of the Prevention of Food Adulteration Act, a complaint was filed.
The Trial Court after recording the evidence and hearing both the parties, convicted the applicant for offence under Sections 7(i), 7(v) read with Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act and sentenced him to undergo the rigorous imprisonment of six months and a fine of Rs.1000/-. The appeal filed by the applicant was also dismissed.
Challenging the judgments passed by the Courts below, it is submitted by the counsel for the applicant that the mandatory provision of Section 13(2) of the Prevention of Food Adulteration Act was not followed. The report of the Public Analyst was not supplied to the applicant, as a result of which his valuable right for getting the sample re-tested was taken away causing serious prejudice to the applicant. It is further submitted that it is well established principle of law that non- compliance of Section 13(2) of the Prevention of Food Adulteration Act is fatal to the prosecution case. In the alternative, it is submitted by the counsel for the applicant that the incident took place in the year 2002 and the applicant has been sentenced to undergo the rigorous imprisonment of six months. The applicant has already remained in jail for a period of one month and, therefore, the period already undergone is sufficient in the interest of justice.
Per contra, it is submitted by the counsel for the respondent/State that it is incorrect to say that the notice issued to the applicant under Section 13(2) of the Prevention of Food Adulteration Act was never served on the applicant. Exhibit P/30 is the envelope of the registered notice sent to the applicant which was received back by the complainant with an endorsement by the Postman that on 15.6.2002, 17.6.2002, 18.6.2002, 19.6.2002, 20.6.2002 and 21.6.2002, the information was given to the addressee but every time the addressee was not found in his house and accordingly the notice under Section 13(2)of the Prevention of Food Adulteration Act, which was sent to the applicant by registered post, was returned back. Under these circumstances it has to be presumed that the said notice was served upon the applicant and inspite of that, the applicant did not exercise his right of re-testing of the seized Daal and under these circumstances it cannot be said that the mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act were not followed.
Heard the learned counsel for the parties.
The counsel for the applicant in order to buttress his submissions submitted that non-service of notice under Section 13(2) of the Prevention of Food Adulteration Act is fatal to the prosecution case has relied upon the judgments passed by this Court in the cases of State of M.P. vs. Jaswant Singh passed in Criminal Appeal No.370/2000, Food Inspector, Balaghat vs. Tejlal reported in 1995(I) MPWN 92, Chandrashekhar Sharma vs. Bane Singh reported in 1997(IV) MPHT 168, Vithal vs. State of M.P. reported in 2005 (1) MPHT 10. and Pimpri Chinchwad Nagarpalika vs. Giriraj Chiranjilal Sharmareported in 1998 Crl.L.J. 4354.
The moot question for determination in the present case is that whether non-acceptance of registered notice by the applicant on different dates would amount to non-service of notice under Section 13(2) of the Prevention of Food Adulteration Act or whether it has to be presumed that as the addressee himself has avoided to receive the notice inspite of multiple informations given by the Postman on various dates, therefore, if the applicant did not receive the notice deliberately, then the same can be inferred to be served upon the applicant.
Section 27 of the General Clauses Act, 1897 reads as under:-
“27. Meaning of service by post.- Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or nay other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
Section 114 of Evidence Act reads as under:-
“114. Court may presume existence of certain facts- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
The moot question is that if a pre-paid and properly addressed letter is sent by registered post, then whether it can be held that unless and until it is actually delivered to the addressee, the delivery of the said letter cannot be presumed to have been effected on the addressee? Whenever a letter is sent by registered post, all that a sender can do is to post a properly pre-paid registered address containing the correct address of the addressee. Once the letter is hand over to the Post Office, then the sender loses all his control over the said letter. Now the matter is between the Post Office and the addressee. If the letter is actually refused by the addressee, then there is no difficulty in drawing an inference that the letter was delivered. However, the difficulty would arise when in spite of best efforts made by the Postman, if the addressee succeeds in avoiding the delivery of registered post, then under these circumstances whether the said registered letter can be treated as served or not. In the present case, as per the endorsement made by the Postman, it is clear that on various dates the Postman had given information at the house of the applicant with regard to the registered letter but on all the occasions the applicant was not available in the house. Under these circumstances, the Postman had no option but to return the registered letter back to the sender with a detailed endorsement because under the law the Postman has no authority to compel the addressee to receive the letter.
As per the endorsement made by the Postman on the registered letter Ex.P/30, the Postman had given information at the house of the applicant on 15.6.2002, 17.6.2002, 18.6.2002, 19.6.2002, 20.6.2002 and ultimately on 21.6.2002. After giving an information at the house of the applicant when the applicant was not found at his house, then the registered letter Ex.P/30 was returned back with the following endorsement-
^^ikusokys ds ?kj ij lwpuk nsus ij Hkh ikus okys Mkd okLrs le; ?kj ij ugh feyrs okilA^^ This endorsement can be safely considered to be a refusal on the part of the applicant to accept the registered post.
The Supreme Court in the case of M/s Madan & Co. vs. Wazir Jaivir Chand reported in 1989 (1) SCC 264 has observed as under:-
“6. We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant.
Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insist that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee’s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a court under Order V of the CPC. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as “not found”, “not in station”, “addressee has left” and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word “served” as “sent by post”, correctly and properly addressed to the tenant, and the word “receipt” as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.”
The registered letter Ex.P/30 was produced before the Trial Court in the sealed condition by the prosecution during trial. As mentioned by the Trial Court in its judgment, the said sealed envelope was opened and it was found that the sealed envelope contained the notice under Section 13 (2) of thePrevention of Food Adulteration Act along with a copy of the Public Analyst. Thus, it is clear that the prosecution has succeeded in establishing that the provisions of Section 13(2) of the Prevention of Food Adulteration Act were complied with and the copy of the report of the Public Analyst was sent to the applicant along with notice under Section 13(2) of the Prevention of Food Adulteration Act and since the applicant himself refused to accept the same, therefore, it can be safely held that the notice under Section 13(2) of the Prevention of Food Adulteration Act was duly served upon the applicant and thus it cannot be said that the mandatory provision of Section 13(2) of the Prevention of Food Adulteration Act was violated. Accordingly, the first submission made by the counsel for the applicant is rejected.
It is next contended by the counsel for the applicant that the incident took place in the year 2002 and 16 years have passed and this revision is pending since 2008 and, therefore, a lenient view may be adopted, and one month detention as already undergone by the applicant may be treated as sufficient to meet the ends of justice.
The submissions made by the counsel for the applicant cannot be accepted for the simple reason that deterrence is one of the important factors of sentencing policy. The applicant has been convicted under Section 16(1) (a) (i) (ii) of the Prevention of Food Adulteration Act and the minimum sentence provided for the said offence is six months which may extend to three years. The Trial Court has already imposed the minimum sentence by adopting a very lenient view. Under these circumstances, the sentence awarded to the applicant cannot be reduced to the period already undergone by him. Consequently, the prayer for reducing the sentence to the period already undergone by the applicant is rejected. Consequently, the applicant is held guilty for committing offence under Section 7(i), 7(v) read with Section 16(1) (a) (i)
(ii) of the Prevention of Food Adulteration Act and the sentence of rigorous imprisonment of six months and a fine of Rs.1000/- awarded by the Courts below is hereby affirmed.
Accordingly, the judgment and sentence dated 12.10.2007 passed by JMFC, Ganjbasoda, District Vidisha in Criminal Case No.382/2007 and judgment and sentence dated 22.4.2008 passed by 2nd Additional Sessions Judge (Fast Track Court), Ganjbasoda, District Vidisha in Criminal Appeal No.199/2007 are hereby affirmed.
The applicant is on bail. His bail bonds and surety bonds are cancelled with immediate effect. The applicant is directed to surrender before the Trial Court immediately for undergoing the remaining jail sentence.
The revision fails and is hereby dismissed.
(G.S. AHLUWALIA) Judge 03/05/2018