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1997 (11) TMI 557
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.... by the Food Inspector, Thodupuzha Circle, Idukki district was taken on file by the Court as C.C. 57/89 and proceeded with the trial of the case as in a warrant case instituted otherwise than on a police report and after examining some of the witnesses framed charge against the accused who are the respondents herein. Admittedly the respondents are father and son and while the. father was the licensee of the shop the son was salesman, the lower Court after trial found that the prosecution has not succeeded in establishing that the respondents have committed the offences alleged against them and therefore they were acquitted and set at liberty by the impugned judgment. 4. Even though the then Food Inspector who purchased peas dhal from the respondents for the purpose of sampling, sent the sample for analysis and filed the above complaint after receipt of the analysis report to the effect that the sample was insect infested and unfit for human consumption, was examined as PW1 before the lower Court prior to the framing of the charge against the respondents, he was not cross-examined at that stage and his cross-examination was deferred by the counsel for the respondents. But after t....
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.... accused to cross-examine him. He argued that unlike in other cases generally in which the evidence of a witness who was not subjected for cross-examination, cannot be relied upon, in this case even though PW1 was available for cross-examination without subjecting him to cross-examination after his examination-in-chief, it was deferred by the respondents and unfortunately he expired before the respondents could get an opportunity to cross-examine him. Therefore, according to him since the failure of cross-examination of PW1 was due to his untimely demise prior to his cross-examination before the lower Court, his evidence is acceptable as the evidence of any other witnesses and the only question to be considered is regarding the veracity of his evidence. 8. In support of the contention that the evidence of a witness who died before cross-examination is admissible, the learned Public Prosecutor relied upon the decision in Ahmad Ali v. Joti Prasad AIR 1944(31) All 188 : (1944 All LJ 182) wherein a Division Bench of the Allahabad High Court has observed as follows (at page 190 of AIR): The plaintiffs had a commission issued to one Raj Bahadur Mathur, who went to the place a....
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....57 it was observed as follows : If a party wishes to give evidence in his own favour, of course it is in his power to come forward like any other witness and subject himself to examination and cross-examination in open Court; but until he has subjected himself to cross-examination, no statement which he may volunteer can be used as any evidence in support of his own case, unless the right, so to use it, has accrued from the deliberate act of his adversary. A party cannot himself determine that his own statement shall be used as evidence in his favour. 11. In the decision in Bhola Ram v. PeariDevi a Division Bench of the Patna High Court has held that written statement filed by one of the defendants in a suit supporting the plaintiff is of no help to the plaintiff in the absence of his statement on oath on examination in Court. 12. In decision in Passang Lama v. State of Sikkim a single Judge of the Sikkim High Court has observed as follows at page 1354 : Though the accused had wanted to cross-examine PWs.2 and 3 but they were not made available for cross-examination, as summons could not be served on them. Thus a valuable right of the accused as given in Sec....
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....e by PW 1, PW3 has deposed that the sampling was done by PW2 and while PWs. 1 and 3 deposed that even though PW 1 asked the persons gathered there to attest the mahazar etc. they did not oblige. PW3 has deposed that they did not ask anybody to do the same. It is pertinent to note that the purchase of the article by PW1 for the purpose of analysis from the shop of the respondents is not disputed by them. PW3 himself has deposed that he has seen PW1 purchasing the article from the shop of the respondents for the purpose of analysis, sampling etc. Therefore, the above discrepancies weighed with the lower Court in the evidence of PWs. 1 and 2 and that of PW3, are of no significance at all in this case and the rejection of the prosecution case on the ground of the above discrepancies in the evidence of PWs. 1 and 2 and that of PW3 cannot be justified. 15. In point No. 1 the lower Court has held that PW1 has purchased 750 gms. of peas dhal from the respondents for chemical examination on 13-2-1987 at 10.40 a.m. In point No. 2 the lower Court has held that on the basis of the evidence of PW5, the Public Analyst and his analysis report Ext.P9 that the peas dhal exhibited for sale in the....
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....uzha in Kannur district on 12-9-1986 and they had no business and that they were not residing at Thaimattom, Kalloorkad in Kumaramangalam Panchayath during the relevant period as alleged by the prosecution. But as I have already noted, the evidence of PWs. 1, 2 and 3 establishes that the respondents have been conducting business at that time and PW 1 has purchased peas dhal from the shop of the respondents for analysis on 13-2-1987. Apart from the evidence of PW 3 that the respondents have been conducting trade in the shop room belonging to him during the relevant period, the prosecution has produced Exts. PI8 to P20 and examined PW 8 the Executive Officer of Kumaramangalam Panchayath to establish this fact. PW 8 has deposed that the shop room bearing No. IV/3 of Kumaramangalam Panchayath is owned by PW 3 and Exts. P18 and P19 are the two extracts of the registers maintained by the Panchayat evidencing issue of licence under the Prevention of Food Adulteration Act to the 2nd respondent for the period 1986-87 to 1987-88. He has also deposed that Ext. P20 is the letter sent by him to the Food Inspector noting the details of the licence to conduct the trade in building bearing door No....
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....f Section 13(2) of the Act in this case. 21. The counsel for the respondents vehemently argued that there is no compliance of the mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act in this case since no notice as contemplated under that provision is served upon the respondents. He also argued that if, in fact, notices were served upon the respondents, they would have certainly taken steps to send the second sample to the Central Food Laboratory for analysis in order to disprove the analysis report filed by the Public Analyst in this case. Therefore, according to him, by the failure of service of the notice as contemplated under Section 13(2) of the Act a very valuable right available to the respondents as provided under that statute is denied to them and it will cause very great prejudice to the respondents in this case. It is true that non-compliance of the provisions of Section 13(2) of the Act will entail very grave prejudice to the accused and that fact alone will entitle them for acquittal in cases of this nature.... 22. Once a notice is sent by registered post in the correct address no burden is cast upon the send or the postman to arrange ....
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....puted to the addressee. In this connection the decision of the Supreme Court in M/s. Madan & Co. v. Wazir Jaivir Chand AIR 1989 SC 630 is very appropriate and to the point. Though in that case the apex Court was considering the validity of notice issued under Sections 11 and 12 of the J & K Houses and Shops Rent Control Act, to the tenant, the principles laid down in that decision are equally applicable to the above case coming under the Prevention of Food Adulteration Act since the notice contemplated under Sections 11 and 12 of the J & K Rent Control Act as well as Section 13(2) of the Prevention of Food Adulteration Act are the in-built safeguards provided in the statute by the legislature in favour of the tenant or the accused, as the case may be, with regard to the proceedings for eviction under the Rent Control Act or the prosecution lodged under the Prevention of Food Adulteration Act. The nature of service of notice and the correct view to be taken by the Court with regard to the service of notice are clearly and elaborately laid down in para 6 of the judgment by the apex Court. I think it is profitable to reproduce the same which is as follows : We are of opinion ....
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....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, as 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 from some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters add....
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....mpted to serve the notices upon the respondents and as they were out of station at that time, he left the intimation in their house and kept the registered letters for seven days and as the respondents did not take delivery of the registered letters within that time they were returned with the endorsement 'unclaimed' to PW 6, the sender. Hence adopting the more reasonable, effective, equitable and practical interpretation and reading the word 'served' as 'sent by post', correctly and properly addressed to the accused and the word 'receipt' as tender of the letter by the postal peon at the address mentioned in the letters as laid down by the Apex Court, it has to be held that there is proper service of notices under Section 13(2) of the Act on the respondents in this case. Therefore, the contention of the respondents that there was no proper notice under Section 13(2) of the Act and as such the entire prosecution is vitiated for non-compliance of that mandatory provision of the Act, is absolutely unsustainable. Consequently the finding of the lower Court to the effect that the prosecution has failed to comply with the requirement of Section 13(2) of t....