Nagar Swastha Adhikari v. Gaya Prasad — 1972 DIGILAW 304 (ALL)

JUDGMENT J.M.L. Sinha, J. - This appeal arises out of the judgment and order dated 4th December, 69 passed by a Magistrate 1st Class Agra acquitting the respondent of the offence under section 16(1)(a)(i) read with section 7 of the Prevention of Food Adulteration Act. 2. The facts leading to this appeal can briefly be stated as under : On 17th of May 68 Sri Promod Kumar Kulshreshtha, Food Inspector, Nagar Mahapalika, Agra, found the respondent selling milk from a can on the crossing of Vijai Nagar Colony. On enquiry the respondent informed the Food Inspector that the milk in his possession was an admixture of cow and goat milk. The Food Inspector collected sample from the milk in the possession of the respondent after making compliance of necessary formalities prescribed under the law. One part of the sample was sent to the Public Analyst who reported it to be adulterated. A complaint was then preferred for the prosecution of the respondent. 3. The respondent in his statement in the trial court admitted that the Food Inspector collected the sample out of the milk in his possession. He however pleaded that the milk was not intended for sale and that the Food Inspector forcibly collected the sample. It was also pleaded that he did not accept the price of the milk. 4. The trial court on a consideration of the evidence on record held that the case was not made out beyond reasonable doubt and, in the result, acquitted the respondent. Feeling aggrieved against it the Nagar Swastha Adhikari, Nagar Mahapalika, Agra, has come up in appeal before this court. 5. I have heard learned counsel on both the sides and have also gone through the record of the case. 6. On a perusal of the judgment of the trial court I find that the trial court has acquitted the respondents on two grounds : The first ground has not been stated by the learned Magistrate very clearly but from the reasoning given by him it follows that the learned Magistrate was of the opinion that the evidence on record did not prove that the milk out of which the sample was taken was intended for sale and that the respondent received the price of the sample. The second ground stated in the trial court's judgment is that the Food Inspector did not make compliance of rule 20 of the rules inasmuch as he did not add formaline in the proportion prescribed. 7. So far as the second ground is concerned I find that the learned Magistrate did not read the evidence on record with due care and caution. Rule 20 only says that in the case of sample of milk etc. formaline shall be added about 40 per cent in equal solution in the proportion of 2 drops for 25, M.L. In the instant case the sample that was taken by the Food Inspector weighed 660 M.L. It would therefore follow that the Food Inspector should have mixed near about 54 drops of formaline in the entire sample. According to the evidence of Promod Kumar Food Inspector P.W. 1, Chunni Lal Gupta and Dal Chand the whole sample was divided into three parts and 17 drops of formaline were added to each part. It is thus crystal clear that 54 drops formaline were added to the sample. I thus fail to understand how it can be said that the formaline that was added by the Food Inspector in the instant case was not in the proportion prescribed in rule 20 of the Rules framed under the Act. This ground adopted by the learned Magistrate to acquit the respondent was thus factually wrong. 8. This takes me to the other ground adopted by the learned Magistrate for acquitting the respondent. 9. The prosecution examined Promod Kumar Food Inspector P.W. 1, Chunni Lal Gupta P.W. 2 and Dal Chand P.W. 3 to give evidence of the fact that the sample was collected out of the milk in the possession of the respondent and that the respondent was paid the price thereof. So far as the collection of sample is concerned the respondent also does not deny it. All that he states is that the sample was collected forcibly and that he did not accept the price. 10. On a perusal of the record however I find that Promod Kumar Food Inspector P.W. 1 and Dal Chand P.W. 3 made categorical statements to the effect that the respondent sold the milk to the Food Inspector and that the price thereof was paid to him. There is also the receipt Exh. Ka 2 in evidence of that fact. 10. On a perusal of the record however I find that Promod Kumar Food Inspector P.W. 1 and Dal Chand P.W. 3 made categorical statements to the effect that the respondent sold the milk to the Food Inspector and that the price thereof was paid to him. There is also the receipt Exh. Ka 2 in evidence of that fact. This receipt bears the signature of the respondent. 11. Reference has been made by the trial court as also by the learned counsel for the respondent in his argument before me to the evidence of Chunni Lal Gupta P.W. 2. I however fail to find anything positive in his evidence which may lead to the conclusion that the sample was collected forcibly by the Food Inspector or that the Food Inspector did not pay the price of the sample to the respondent. Chunni Lal P.W. stated that he was on the shop while the sample was being collected on the road in front and that the respondent signed the receipt in his presence. He did not state that any compulsion was exercised on the respondent in order to make him sign the receipt. In fact not even such a suggestion was put to Chunni Lal in his cross-examination. It is true that Chunni Lal said that he did not see whether the price of the sample was actually paid to the respondent or not. The fact however remains that the evidence of Chunni Lal also points to the conclusion that the receipt Exh. Ka 2 was signed by the respondent as a free agent and without any pressure being exercised on him. If it were true that the respondent had not been paid the price of the sample, he would not have signed this receipt. 12. Reference was made by learned counsel for the respondent to the evidence of Chandra Bhan Sharma P.W. 1 and Sobha Ram D.W. 2. So far as the last named witness is concerned the only deposed that the respondent did not do the profession of selling milk. He has not said anything which may have a direct bearing on the case. Reference was made by learned counsel for the respondent to the evidence of Chandra Bhan Sharma P.W. 1 and Sobha Ram D.W. 2. So far as the last named witness is concerned the only deposed that the respondent did not do the profession of selling milk. He has not said anything which may have a direct bearing on the case. Chandra Bhan D.W. 1 no doubt stated that he was present when the Food Inspector collected the sample out of the milk in the possession of the respondent and that the respondent had told the Food Inspector that the milk was not meant for sale. He also stated that the respondent was not paid the price of the sample. 13. On a careful examination of the evidence of Chandra Bhan Sharma D.W. 1, however, I find that his evidence is wholly unworthy of reliance. He stated that the respondent was carrying the milk in a Lota along with sugar. The suggestion contained in his evidence is that the respondent was carrying the milk for his own consumption. There is no controversy before me about the fact that the respondent is resident of a place situate far away from the place where the sample was collected. It does not appear probable that the respondent would have been carrying the milk and sugar with him in order to drink it in the way It is obvious that Chandra Bhan Sharma was prepared to say anything which could be of help to the respondent. Further, the way in which Chandra Bhan came to give evidence also makes his evidence rather suspicious. He was not known to the respondent since before. He stated that since he had also joined the respondent in the protest against the collection of the sample, the latter enquired his name and residence and had said that he will have to depose about it when necessary The witness further deposed that he had been brought to the court by the respondent himself to give evidence. All this shows that Chandra Bhan Sharma is not a truthful witness and came forward to give evidence at the instance of the respondent. 14. All this shows that Chandra Bhan Sharma is not a truthful witness and came forward to give evidence at the instance of the respondent. 14. The evidence of Promod Kumar, Chunni Lal and Dal Chand in my opinion satisfactorily proved the fact that the sample was collected by the Food Inspector out of the milk in the possession of the respondent and that the respondent was paid the price thereof. 15. Learned counsel for the respondent referred me to section 10(8) of the Prevention of Food Adulteration Act and stated that since the Food Inspector is a Police Officer the receipt got prepared by him for the price of the sample is not admissible in evidence and cannot be used as it is nothing but a signed statement of an accused obtained during investigation. Reliance was also placed by the learned counsel for the respondent for this argument on section 162 of the Code of Criminal Procedure. 16. I have given my careful thought to the contention raised but I am unable to accept it. Sub-section (8) of section 10 of the Act only states that the Food Inspector may exercise the power of a police officer under section 57 of the Code of Criminal Procedure for the purpose of ascertaining the true name and the residence of the person from whom the sample is taken or the article of food is seized. Section 57 of the Cr. P.C only states that when any person who, in the presence of a police officer has committed or has been accused of committing a non-cognizable offence, refuses on demand of such officer to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. It further states that when the true name and residence of such person has been ascertained he shall be released on his executing a bond with or without sureties. 17. A perusal of sub-section (8) of section 10 of the Food Adulteration Act together with sect on 57 of Cr. P.C. clearly reveals that it is the limited power of a police officer that has been conferred on a Food Inspector. Neither sub-section (8) of section 10 nor section 57 of Cr. 17. A perusal of sub-section (8) of section 10 of the Food Adulteration Act together with sect on 57 of Cr. P.C. clearly reveals that it is the limited power of a police officer that has been conferred on a Food Inspector. Neither sub-section (8) of section 10 nor section 57 of Cr. P.C., referred therein, confers on the Food Inspector power to make an investigation in accordance with Chapter XIV of Cr. P.C. In fact section 57 of Cr. P.C. does not even fall in Chapter XIV. It cannot therefore be said that since the Food Inspector possesses the power of a police officer under section 57 of Cr. P.C., all the documents prepared by him at the time of the collection of the sample should be deemed to have been prepared in the course of investigation and consequently covered by section 161 Cr. P.C. 18. Learned counsel for the respondent next referred me to the second proviso appended to sub-clause (v) of section 4 of the Act which states that the Food Inspector while exercising the power of entering upon an inspection of any place under section 10 of the Act shall follow the provisions of the Code of Criminal Procedure relating to the search or inspection of a place by police officer. Learned counsel contended that the fact that the Food Inspector is also conferred with such a power makes his position analogous to that of a police officer investigating a case. I am once again unable to agree. Provisions relating to search by police officers are contained in Chapter VII of the Cr. P.C. Chapter VII does not relate to the investigation of a cognizable or non-cognizable case. Under the circumstances the mere fact that a duty has been imposed on the Food Inspectors that they should act in accordance with the relevant provisions contained in Cr. P.C. while making an entry upon an inspection of any place, it cannot be urged that the Food Inspector acts as a Police Officer for all intents and purposes. 19. So far as sections 161 and 162 of Cr. P.C. are concerned I have no doubt in my mind that it can have no application to the instant case. Section 161 refers to statements recorded by a police officer while making an investigation under Chapter XIV of the Code of Criminal Procedure. 19. So far as sections 161 and 162 of Cr. P.C. are concerned I have no doubt in my mind that it can have no application to the instant case. Section 161 refers to statements recorded by a police officer while making an investigation under Chapter XIV of the Code of Criminal Procedure. As also stated earlier a Food Inspector does not act under Chapter XIV of Cr. P.C. while collecting a sample. Further, section 162 of Cr. P.C. expressly forbids the signatures of any person being obtained when he is interrogated by a Police Officer during the investigation of a case. There is no provision in the Prevention of Food Adulteration Act prohibiting the obtaining of the signatures of the vendor from whom the sample is collected and to whom the price is paid. The contention raised by the learned counsel for the respondent that the receipt Exh. Ka 2 is hit by sections 161 and 162 Cr. P.C. cannot therefore be accepted. 20. Learned counsel for the respondent next contended that in any case nothing contained either in the Act or in the Rules required the Food Inspector to obtain a receipt from the respondent duly signed by him and, consequently, the receipt got prepared by the Food Inspector in the instant case cannot be utilised by the prosecution to prove that the price of the sample had been paid to the respondent. 21. It is true that no proforma appears to have been prescribed either under the Act or under the Rules framed thereunder in which a receipt should be obtained for the price paid by the Food Inspector. None at least could be shown to me by the learned counsel for the appellant. It will however be useful in this connection to make a reference to section 10(3) of the Act which reads as follows : "Where any sample is taken under clause (a) of sub-section (1) of section 2, its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken." Once the law lays down that the price of the sample has to be paid, it is implicit thereunder that a receipt for the same should also be obtained. Indeed, the law did not expect that while the Food Inspector should pay the price he should obtain no acquittance whatsoever from the person to whom the price is paid. Under the circumstances the mere that no proforma is prescribed either under the Act or under the Rules in which a receipt should be obtained for the price paid to the vendor, cannot lead to the conclusion that the Food Inspector is required to pay the price without obtaining any receipt or that he has no jurisdiction whatsoever to obtain the receipt from the vendor. Learned counsel for the respondent could not point to me any express provision contained in the Act or the Rules forbidding the Food Inspector from obtaining the receipt. As already stated earlier it is implicit in sub-section (3) of section 10 that when price is paid the receipt thereof should be obtained. If the receipt is obtained it can also be made use of. 22. No other contention having been raised I find that the charge under section 16(1)(a)(i) was satisfactorily made out against the respondent. 23. Coming to the point of sentence, I find that the sample in the instant case was collected on 7th of May 1968 i.e. more than four years ago. The trial court recorded its judgment on 4th December 1969. A period of more than two and a half years has thus elapsed since the respondent was acquitted by the trial court. It also transpires that the respondent does not carry on the profession of selling milk on any large scale. He appears to be a petty hawker. Looking to all these circumstances I think it should meet the ends of justice if a sentence of fine of Rs. 100/- alone is awarded to the respondent. 24. In the result this appeal is allowed. The judgment and order dated 4th of December 1969 passed by the court below are set aside. Instead the respondent is held guilty of the offence under section 16(1)(a)(i) of the Prevention of Food Adulteration Act. He is convicted thereunder and is sentenced to pay a fine of Rs. 100/- only. In default of payment of fine he will undergo one and a half months' R.I. He is granted one month's time to pay the fine.