Gauri Shankar v. State of U. P — 1980 DIGILAW 1007 (ALL)

JUDGMENT V.K. Khanna, J. - The applicant was prosecuted under section 7/16 of the Prevention of Food Adulteration Act (hereinafter described as "the Act"). 2. According to the prosecution case, on 14th September, 1977 the Food Inspector D.P. Singh visited the shop of the accused in the presence of Mohammad Yunus and found the applicant having stored mustard oil besides other articles of food and found him selling the same. The Food Inspector took sample of the mustard oil in accordance with law and sent the same to the Public Analyst, who reported that the sample of mustard oil was adulterated being mixed with 16 per cent of linseed oil. Written consent of the Chief Medical Officer, Gorakhpur was taken and thereafter the prosecution was launched against the applicant. 3. The trial court as well as the appellate court found the applicant guilty under section 7/16 of the Act and sentenced him to six months R.I. and a fine of Rs. 1000/-. 4. In the present revision the learned counsel for the applicant has firstly urged that there has been non-compliance of the mandatory provision of section 10(7) of the Act inasmuch as the Food Inspector at the time of taking sample did not procure the presence of independent witnesses. It has been urged that no reliance could be placed on the testimony of Food Inspector D.P. Singh (P.W.l) and Mohmmad Yunus (P.W.2). 5. The learned counsel appearing for the State has, however, urged that non-compliance of the provisions of Section 10(7) of the Act will not vitiate the trial and that the two courts below have rightly believed the testimony of the Food Inspector and Mohd. Yunus P.W.2. 6. Section 10(7) of the Act provides as follows "Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4), or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures." It has been held by the Supreme Court in the case of Ram Lobhaya v. Municipal Corporation of Delhi (1974) 4 S.C.C. 491 : 1974 FAC 102 that one or more persons in section 10(7) mean one or more independent persons. Supreme Court in the case of Babu Lal Hargovindas v. State of Gujarat 1972 FAC 18 has held that non-compliance with the provisions of Section 10(7) does not per se vitiate the trial, It is not a R.I. of law that the evidence of the Food Inspector cannot be accepted without corroboration. Food Inspector is not an accomplice nor is he similar to an attesting witness to a will. The evidence of the Food Inspector, if believed can be relied on for proving that the sample was taken as required by law." 7. The learned counsel for the applicant has however, urged that in Ram Lobhaya's case (supra) it has been held that after the amendment of 1964 the words "as far as possible" were deleted and that the deletion naturally lends plausibility to the contention that the provisions of Section 10(7) are mandatory, It has been urged that the Supreme Court has held that while taking action under any of the provisions mentioned in sub-section (7) of section 10 the Food Inspector must call one or more independent persons to be present at the time when such action is taken. It is true that the Supreme Court has held that the provisions are mandatory but the Supreme Court has also held that regardless of all circumstances the non-presence of one or more independent persons at the relevant time would not vitiate the trial or conviction. It has been held that the obligation which section 1C(7) casts on the Food Inspector is to call one or more persons to be present when he takes action. In the case before the Supreme Court, however, it was shown that from the evidence of the Food Inspector it was clear that he did call the neighbouring shop-keepers to witness the taking of the sample but none was willing to co-operate. 8. The learned counsel for the applicant has also relied upon a decision of the Supreme Court reported in the case of Shalt Ashu Jaiwant v. State of Maharashtra decided on 18-8-1975 and reported in 1951-79 FAC (SC) 169 : 1975 (II) FAC 185. From a reading of the report it is clear that the Supreme Court in the aforesaid case examined the evidence and came to the conclusion as follows :- "As already indicated above, we are not impressed by the nature of the evidence led by the prosecution. From a reading of the report it is clear that the Supreme Court in the aforesaid case examined the evidence and came to the conclusion as follows :- "As already indicated above, we are not impressed by the nature of the evidence led by the prosecution. We cannot naturally ignore the fact that the signatures of Tambey are absent on all those documents on which that would have been present if Section 10(7) had been strictly complied with. We think that it is more likely for the reasons already given by us that Tambey was not there. If that be so, the evidence of the prosecuting Food Inspector who said that Tambey was there cannot be implicitly relied upon. In this case, it is quite difficult to base the appellant's conviction on such shaky foundations." Reliance has also been placed on a decision of this court reported in Bankey Lal v. State 1979 (1) FAC 319. In this case the Court also examined the evidence and after examining the evidence held that there was no satisfactory evidence on the record to indicate that one or more witnesses of the locality were called to witness the taking of the sample and hence it was clear that the Food Inspector had not even complied with the law substantially. It was noticed by the Court that the Food Inspector had admitted that a case under the Corruption Act was pending against him in the Sessions Court and that he has been released on bail. It is thus clear that the testimony of the Food Inspector was disbelieved after taking into account his evidence and also the fact that he has not complied with the law substantially by not calling one or more witnesses of the locality to witness the taking of the sample. 9. Another decision of this Court reported in Nagar Swasthya Adhikari, Nagar Mahapalika. Agra v. Gokul Praaai Singh 1976 (II) FAC Old Judgments. 44 was also relied upon by the learned counsel for the applicant in support of his proposition. In the aforesaid case, relying upon the case of Ram Lobhaya (supra) it was held :- "...............The Food Inspector must, therefore call one or more persons to be present while be takes action under any of the provisions mentioned in section 10 (7) of the Act. In the aforesaid case, relying upon the case of Ram Lobhaya (supra) it was held :- "...............The Food Inspector must, therefore call one or more persons to be present while be takes action under any of the provisions mentioned in section 10 (7) of the Act. In the instant case, the court below found that no attempt was made by the Food Inspector to call one or more independent witnesses. The Food Inspector conceded that no person of the public saw the entire proceedings. He further stated that he called the neighbouring shop-keeper Sri Nathu Lal to be present at the time while he was taking the action. He was, however, contradicated Nathu Lal (P.W. 2) who clearly deposed that many milk vendors containing containers passed through that road at the relevant time but they were not stopped for the purpose of witnessing the action being taken by the Food inspector and that he was not sent to call the neighbouring shop-keepers. He also stated that five or ten persons of the public saw the entire proceedings. In view of these contradictory statements, the court below was correct in holding that the Food Inspector did not make any attempt to procure the presence of the independent witnesses. In such circumstances the prosecution could not be said to be relieved of its obligation to cite independent witnesses................." From the aforesaid case it is, therefore, clear that as far as the provisions of section 10(7) of the Act are concerned, the same are mandatory after the amendment of 1964 when the words "as far as possible" were deleted. However, non-compliance of the mandatory provisions of section 10(7) of the Act will not per se vitiate the trial or conviction if there are circumstances present to show that the presence of the independent witnesses could not be procured. The conviction of the applicant can be based after believing the testimony of the Food Inspector. 10. Now coming to the facts of the present case, it is clear from the statement of Food Inspector that he made no attempt to procure the presence of the independent witnesses. The only witness who has witnessed the taking of the sample is Mohammad Yunus P.W.2. A bare perusal of the statement of Mohd. Yunus P.W.2. 10. Now coming to the facts of the present case, it is clear from the statement of Food Inspector that he made no attempt to procure the presence of the independent witnesses. The only witness who has witnessed the taking of the sample is Mohammad Yunus P.W.2. A bare perusal of the statement of Mohd. Yunus P.W.2. would show that he is a small pox Supervisor who is working in the same Department in which the Food Inspector was working at Sliahjanvva. Mohd. Yunus can hardly be called an independent witness. There is also a very important thing which comes out from the evidence of the prosecution witness P.W.l Food Inspector D.P. Singh. It appears that on the same day on which sample was taken from the accused the Food Inspector had taken 3 or 4 more samples and in those samples also Mohd. Yunus had witnessed the taking of the sample. It is thus very difficult to believe that Mohd. Yunus was called to witness the taking of the sample because he happened to pass there. It appears that Mohd. Yunus who was an employee of the same Department to which Food Inspector belonged had either accompanied the Food Inspector or was called to witness the taking of the sample thereafter. The evidence of P.W.l and P.W.2 clearly establishes that the Food Inspector had made absolutely no attempt to procure the presence of independent witnesses. The Legislature having provided under section 10(7) the provisions of which are mandatory, that at the time of taking of the sample the presence of one or more independent witnesses should be procured, has to be normally complied with. In case the prosecution shows circumstances under which the provisions of section 10(7) of the Act cannot be complied with for example, when lie Food Inspector calls the independent witnesses but they refuse to come ; in such circumstances it can be said that there has been substantial compliance with the provisions of section 10(7) of the Act. 11. In the present case, however, no such circumstance has been shown to exist from the testimony of the two prosecution witnesses. It would be seen that Mohd. Yunus was utilised as a witness by the Food Inspector in taking of a 1 the samples at other places and also the fact that Mohd. 11. In the present case, however, no such circumstance has been shown to exist from the testimony of the two prosecution witnesses. It would be seen that Mohd. Yunus was utilised as a witness by the Food Inspector in taking of a 1 the samples at other places and also the fact that Mohd. Yunus happens to be an employee of the same Department at Shahjanawa where the Food Inspector was working,It would be unsafe to place reliance on the testimony of tire aforesaid witnesses for the purposes of finding the applicant guilty under section 7/16 of the Act. 12. The learned counsel for the applicant has urged several other points in the present revision but since the applicant deserves acquittal on the first question alone, it is not necessary to decide the other questions raised. 13. For the reasons stated above the present revision succeeds and is allowed. 1 he conviction and sentence of the applicant under section 7/16 of the Prevention of Food Adulteration Act are set aside and he is acquitted of the charge. The applicant is on bail. He need not surrender. His bail bonds are discharged.