FOOD INSPECTOR, PERINADU v. NARAYANAN NAIR — 1980 DIGILAW 3 (KER)

Judgment :- 1. This is an appeal against acquittal in a case coming under the Prevention of Food Adulteration Act, hereinafter called the Act. The respondent herein who was the second accused before the trial court, was tried for an offence punishable under S.16 (1) (a) read with S.2 and 7 of the Act and the Rules framed thereunder, on a charge that, on August I, 1977 at about 2.30 p.m., he sold 675 ml. of cow milk to pw.1 the Food Inspector, which on analysis, was found to be adulterated as per Ext. P5, report of the Public Analyst. 2. The respondent denied the commission of any offence as alleged and pleaded not guilty. 3. The trial court acquitted the respondent following a decision of the Allahabad High Court reported in Sultan Shah v. State (1973 Crl. L. J. 1413) on the ground that the fact that the fat content found in the cow milk sold is much higher than the minimum prescribed leads necessarily to the inference that no water is added to the milk and in such a case the mere circumstance that the non fatty solid content is below the prescribed standard warrants the only inference that either the cow in question was not given the proper food or that the report of the Public Analyst was erroneous. The acquittal was based also on the ground that there has been violation of S.10 (7) of the Act as pw. 2 examined in the case was not an independent witness. 4. The learned Public Prosecutor challenged the order of acquittal on various grounds. He contended that the acquittal of the respondent on both the grounds cannot be sustained in law and on the facts of the case and therefore the acquittal should be set aside and the respondent convicted for the offence with which he was charged. 5. The acquittal of the respondent following the decision in Sultan Shah v. State (1973 Crl.L J.1417) is wrong and cannot be sustained in the light of the materials now on record and the decision of a Full Bench of this Court reported in State of Kerala v. Vasudevan Nair (1974 KLT. 617). 5. The acquittal of the respondent following the decision in Sultan Shah v. State (1973 Crl.L J.1417) is wrong and cannot be sustained in the light of the materials now on record and the decision of a Full Bench of this Court reported in State of Kerala v. Vasudevan Nair (1974 KLT. 617). But" after the decision of the Full Bench referred to above, radical changes have been brought about in the Act bringing in various amendments by Act 34 of 1976 S.2 (xxii-a) has been introduced and 'primary food' has been defined to mean any article of food being a produce of agriculture or horticulture in its natural form. This Court has held in Food Inspector v. Abdul Khader (1978 KLT. 830) that milk is a primary food coming within this definition There is no evidence or material on record in this case to show that the proviso to S.2 (m) applies to the case on hand. 6. The acquittal of the respondent on the ground that S.10 (7) has been violated in the case also cannot be sustained on the facts and circumstances brought about in the evidence. The action taken by the Food Inspector was witnessed by pw 2, Secretary of the Co-operative Society. It was on the ground that pw. 2, being the Secretary of a Society dealing in milk, was easily susceptible to the influence of the Food Inspector that the trial court held that he was not an independent witness. The counsel for the respondent relying on the decision in Subramonian Chettiar v. Food Inspector, Palghat Municipality (1966 KLT. 788), contended that pw. 2 being a person connected with the trade of milk is not an independent witness and therefore S.10(7) of the Act has been flagrantly violated. Relying on the decisions in Food Inspector, Corporation of Calicut v. Vincent (ILR.1966 (2) Ker. 551), Ram Sarup Tara Chand v. The State (AIR. 1965 Punj 366) and Ram Labhaya v. Delhi Municipality (AIR. 1974 SC. 789), the counsel also' contended that the provisions in S.10(7) of the Act are mandatory and its violation will vitiate the entire trial. 7. In Subramonian Chettiar v. Food Inspector (1966 KLT. 551), Ram Sarup Tara Chand v. The State (AIR. 1965 Punj 366) and Ram Labhaya v. Delhi Municipality (AIR. 1974 SC. 789), the counsel also' contended that the provisions in S.10(7) of the Act are mandatory and its violation will vitiate the entire trial. 7. In Subramonian Chettiar v. Food Inspector (1966 KLT. 788) it was held that the persons called by the Food Inspector must be independent and not susceptible to his influence and that it is essential that witnesses concerned must be persons unconnected with the trade in articles of food. But while agreeing only with the observation that the Food Inspector must call independent persons to witness the action taken by him, in all other respects, this decision was overruled by a Division Bench of this Court in Food Inspector, Calicut Corporation v. Padmanabhan Nair (1967 KLT. 826). In the light of this decision of the Division Bench, it cannot be said that there was flagrant violation of the mandatory provisions is S.10(7) of the Act or that securing of pw. 2 as a witness in this case was fatal to the prosecution. It is difficult to characterise all persons belonging to or connected with trade in articles of food as dependents or under the influence of the Food Inspector. There can be no doubt that the persons called by the Food Inspector to witness his action must be independent. No inflexible or hard and fast rule can be laid down as to what class or category of persons will be independent. A realistic and practical approach has to be made to this question. Official subordinate cannot be termed as independent or uninterested. But there is no presumption that a person of that class or category is susceptible to the influence of the Food Inspector. It cannot be laid down as a general proposition of law that a person connected with a trade in articles of food would not be an independent witness. The Division Bench observed as follows: "We find it difficult to characterise persons belonging to or connected with trade in articles of food as dependents or under the influence of the Food Inspector, and unqualified to be witnesses to the action of a Food Inspector. The Division Bench observed as follows: "We find it difficult to characterise persons belonging to or connected with trade in articles of food as dependents or under the influence of the Food Inspector, and unqualified to be witnesses to the action of a Food Inspector. It will be too much to assume that because the Food Inspector can take action under the Act against persons dealing in articles of food all persons connected with the trade in articles of food would be dependents of the Food Inspector." It was held in the above case, because an independent person of the nature envisaged has not been present at the time of the action of the Food Inspector, the proceedings of the Food Inspector relating to the purchase and sampling would not be invalid and that if no independent witness has been called to be present on the occasion of the action of the Food Inspector, the only consequence will bo that the court will have to look into the evidence in the case with greater care. It may be noted that the mahazar in that case had been attested by three witnesses, two of them being employees of the hotel. The acquittal of the accused on the ground that these two witnesses called to be present at the time of action were not independent was set aside by the Division Bench holding that the Magistrate was not justified in acquitting the accused on this ground. 8. In Prem Ballab v. State (Delhi Admn) (AIR. 1977 SC. 56) it was held by the Supreme Court that there is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector; that it is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness; that this is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law and that if it were otherwise, it would be possible for any guilty person; to escape punishment by resorting to the device of bribing witnesses. While dealing with the peculiar feature of panch witnesses turning hostile, the Supreme Court in this case observed as follows: "It is unfortunately not an infrequent occurrence to find that puncha witnesses turn hostile and go back upon what is stated in the punchanama in utter disregard of truth. This betrays lack of character and absence of civic sense which not only result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity. This is a highly reprehensible phenomenon which has to be curbed in the larger interest of the administration of justice." 9. It was held in Rama Labhava v. Delhi Municipality (AIR. 1974 SC. 789) that the provisions in S.10 (7) of the Act are mandatory. It has been so held in Food Inspector, Corporation of Calicut v. Vincent (ILR.1966 (2) Ker.551) and Karn Sarup Tara Chand v. The State (AIR. 1965 Punj. 366) and the Supreme Court in the above decision approved these two decisions on this point, namely, that provisions in S.10 (7) are mandatory. In Rama Labhaya v. Delhi Municipality (AIR. 1974 SC. 789), the Supreme Court followed an earlier decision in Babulal Hargovindas v. State of Gujarat (AIR 1971 SC 1277). In that case the sample of milk purchased by the Food Inspector was, on analysis, found to be adulterated and the main contention taken before the Supreme Court challenging the conviction of the accused was that the requirements of S.10 (7) have not been complied with in as much as the witnesses called by the Food Inspector were not independent and did not support the Food Inspector's version. Dealing with this argument it was held by the Supreme Court: "It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under S.62 of the Evidence Act to prove the execution of the Will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to he given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. The provisions of S.10(7) are akin to those under S.103 of the Criminal Procedure Code when the premises of a citizen are searched by the police. These provisions are enacted to safeguard against any possible allegations of assessee or resort to unfair means either by the Police Officers or by the Food 'inspectors under the Act. This being the object it is in the interests of the prosecuting authorities concerned to comply with the provisions of the Act, the non-compliance of which may in some cases result in their testimony being rejected. While this is so we are not to be understood as in any way minimising the need to comply with the aforesaid salutary provisions". In Ram Labhaya's case (AIR. 1974 SC. 769), the Supreme Court held that Food Inspector was not in the position of an accomplice, his evidence alone, if believed can sustain the conviction. Further it was observed that this ought not be understood as minimising the need to comply with the salutary provisions in S.10(7) of the Act. 10. To sum up, it is clear from the above decisions that there is "no legal impediment or bar for convicting an accused person basing solely on the uncorroborated testimony of a Food Inspector, if a court of fact is satisfied that his evidence is true and wholly reliable and that non-compliance of the provisions in sub-section (7) of S.10 of the Act will not per se vitiate the action taken by the Food Inspector or the subsequent trial. In a particular case, whether it is fatal to the prosecution or would occasion failure of justice or whether corroboration of the evidence of Food Inspector, which as a general rule stands on the same footing as that of any other witness, is or not necessary depends upon the facts and circumstances of the case. The court has a duty to carefully scrutinise the evidence of the Food Inspector and consider it on its own merits or its own inherent improbabilities. In the instant case, the court has failed to discharge this duty. This apart, pw. 2 who has been characterised as a person under the influence of the Food Inspector, turned hostile to the prosecution and did not support the prosecution but tried to help the accused. This is a circumstance which will indicate that that pw. 2 was not susceptible to the influence or under the influence of the Food Inspector. In the circumstances of the case, pw. 2 is a quite competent, natural and probable witness. There is distinction between competency and interestedness. An interested witness can be a competent witness. In a rioting case, an injured, though interested, is a competent witness. 11. The learned Advocate appearing for the respondent submitted that the sample of milk purchased from his client being primary food, his client is entitled to the benefit of the proviso to S.2(m) of the Act; that this aspect was not considered by the trial court and that therefore the respondent may, be given an opportunity to adduce evidence in support of this plea. These aspects have not been considered by the trial court and it is only just and proper that the case has to be sent back. The learned Public Prosecutor submitted that he has no objection to this course. In the result this appeal is allowed; the order of acquittal is set aside and the case is sent back to the trial court for disposal afresh according to law and in the light of this judgment, from the stage of defence after giving an opportunity to the respondent, to adduce evidence, if any, in support of his plea that he is entitled to the benefit of the proviso to S.2(m) of the Act. The respondent will also be at liberty to raise other pleas available in support of his defence. Allowed.