STATE OF GUJARAT v. MANNANBHAI HASANALI — 1998 DIGILAW 631 (GUJ)

B. C. PATEL, J. ( 1 ) STATE being aggrieved by an order of acquittal recorded by judicial Magistrate, First Class, Dahod on 12-11-1990 in Criminal Case No. 3153 of 1986 wherein the accused were tried for an offence under Sec. 7 of the Prevention of Food Adulteration Act punishable under Sec. 16 (1 ) (a) (i) of the Act. has preferred this appeal. ( 2 ) ). Pacts leading to the present prosecution as it emerges from the record are as under :2. 1 Pravinchandra Manilal, PW 1 serving as a Food Inspector visited the shop of respondent No. 1 (hereinafter referred to as original accused No. 1) on 26-5-1986 at about 4-45 p. m. , and in the presence of panchas collected samples of peppermint having brand name "super China Goli". After dividing the sample into three equal parts forwarded the samples in accordance with the provisions contained in the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") and Prevention of Food Adulteration Rules (hereinafter referred to as "the Rules" ). One sample was forwarded to the Public Analyst for analysis, who. on analysis found that the sample of food article was adulterated. From the analysis report forwarded by the Public Analyst, Exh. 25, it appears that the sample contained Metanil Yellow (a prohibited colour) over and above Sunset Yellow, FCF and Tratrzin Coaltar. In confectionery use of food colour is permitted but only certain coaltars, having the colour Index and Chemical class as prescribed in Rule 28 of the Rules are permitted. In view of the Report, Food Inspector filed a complaint against the accused No. 1. the vendor, and accused No. 2 alleged to be the manufacturer, after obtaining a consent. At the trial, accused pleaded not guilty and contended that they are entirely innocent. The trial Court, on the grounds that the accused No. 1 has failed to prove warranty, that the samples were collected in violation of the Rules, that Panchas have turned hostile, and, that the consent is defective, acquitted the accused. I. Defence of Warranty : ( 3 ) ). In the instant case, it is necessary first to consider the defence of warranty. Initially, the case of the accused No. 1 was that he was dealing on behalf of the accused No. 2, and, therefore, he signed the document Exh. I. Defence of Warranty : ( 3 ) ). In the instant case, it is necessary first to consider the defence of warranty. Initially, the case of the accused No. 1 was that he was dealing on behalf of the accused No. 2, and, therefore, he signed the document Exh. 16 and notice under rule 12 of the Rules on behalf of the accused No. 2. Cash memo Exh. 17 was issued to the Food Inspector which signed by accused No. I on behalf of accused No. 2. It is in view of this the Food Inspector, on 5-12-1987 addressed a letter Exh. 18 to accused No. 2. It is the case of the accused No. I that he purchased the peppermint, i. e. , the article of food, the sample of which was collected by the Food Inspector for analysis, from Vinod Sugar Works, on 15-5-1986, Vide Bill Ex. 81. on payment of Rs. 170. 00 at the rate of Rs. 17. 00 per 3 kgs. , (in all 30 kgs. ). ( 4 ) ). Mr. Mehta, appearing for the accused No. 2 pointed out from the bill Exh. 81 which is produced by accused No. 1 that the buyer was Burhani Peppermint Stores and not the accused No. 1. He further submitted that in the bill only peppermint is mentioned and not any specific brand of Peppermint such as "super China Goli". He further submitted that the accused No. 1 has not entered the box to prove the warranty. No evidence whatsoever is produced to corroborate the say. Looking to the bill. according to his submission, the peppermint described in the bill was supplied to Burhani Peppermint Stores and not to the accused No. 1. If that be so, the accused No. 1 has not proved his defence of warranty in accordance with law. Merely because at the initial stage he has come out with the bill and that he has stated that he is dealing on behalf of accused No. 2 would not be sufficient to hold accused No. 2 guilty of the offence for which he was charged. Learned Addl. Public prosecutor was not in a position to point out any material from the record from which it can be said that the accused No. 1 has satisfactorily established the defence of warranty. Mr. Learned Addl. Public prosecutor was not in a position to point out any material from the record from which it can be said that the accused No. 1 has satisfactorily established the defence of warranty. Mr. Tripathi, appearing for the accused No. 1 was not in a position to connect the bill Exh. 81 with the accused No. 1. There is nothing in the panchnama to indicate that the name of the shop from where the accused No. 1 was selling articles was Burhani Peppermint Stores, or that at the initial stage accused No. 1 disclosed to the Food Inspector that he is dealing in the name of Burhani Peppermint stores. At no stage, including the statement recorded under Sec. 313. the accused no. 1 has come out with the version that he is dealing in the name of Burhani peppermint Stores. There was no label on the container having a warranty indicating that accused No. 2 is the manufacturer. ( 5 ) ). Mr. Tripathi submitted that because the accused No. 1 has purchased the article from a manufacturer, accused No. 1 cannot be held guilty. Section 19 (2) of the Act and Rule 12a of the Rules are relevant for this purpose. It is for the vendor to prove that he purchased an article of food from a manufacturer or dealer with a warranty as envisaged in Rule 12a. He can be exonerated only if he is in a position to lead satisfactory evidence to show that he purchased the article of food with a written warranty as prescribed under the rules. In the instant case, accused No. 1 has not proved by leading any evidence that he purchased the article of food from accused No. 2; that he purchased the article of food with a warranty; that he stored the article in a proper condition after he purchased the same and he sold it in the same state as he purchased it. The Apex Court in the case of M/s. Murlidhar Shyamlal v. State of Assam, reported in AIR 1996 SC 1429 held as under in paragraph 8 of the judgment :-"we are afraid that we cannot accept the contention. The Apex Court in the case of M/s. Murlidhar Shyamlal v. State of Assam, reported in AIR 1996 SC 1429 held as under in paragraph 8 of the judgment :-"we are afraid that we cannot accept the contention. In view of the above warranty as envisaged under Form VI-A there must be specific mention therein by the dealer or distributor or manufacturer, that the article of food sold was in the same nature and quality of the article of food, as the case may be. Then only he would gel acquitted though the article of food was found adulterated. It would be open to the prosecution to proceed against the manufacturers, dealer or distributor". ( 6 ) ). In the case of Municipal Corpotion of Delhi v. Tekchand, reported in AIR 1980 SC 360 , there was neither proof that sample were taken from the container bearing the manufacturers label guaranteeing purity of goods nor any such warranty was found in the invoice; The Apex Court held that the vendor is not protected under Sec. 19 (2) of the Act read with Rule 12a of the Rules. ( 7 ) ). A contention is raised on behalf of the accused No. 1 that in view of the deeming fiction in proviso to Sec. 14 of the Act, the bill should be considered as a warranty. In the instant case. there was no bill in the name of accused No. 1 giving description of article of food or brand name and there was no label on the container declaring warranty as envisaged in Form VI-A. Merely because accused No. 1 produced a bill in the name of some other trader, one cannot jump to a conclusion that the manufacturer who has issued the bill is responsible for the article which was adulterated. That is required to be borne is mind. II. Breach of Rules : ( 8 ) ). So far as accused No. 1 is concerned, it is submitted by learned Advocate mr. Tripathi that there is non-compliance of the rules, particularly Rules 14. 16 and 17 of the Rules. That is required to be borne is mind. II. Breach of Rules : ( 8 ) ). So far as accused No. 1 is concerned, it is submitted by learned Advocate mr. Tripathi that there is non-compliance of the rules, particularly Rules 14. 16 and 17 of the Rules. Rule 14 requires that the sample of Food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. It is submitted before me that duty is cast upon the prosecution not only to comply with the mandatory provisions of law by using clean and dry bottles for storing the sample, but also leading evidence at the trial Court that the bottles used were clean and dry and that the same were properly sealed. ( 9 ) ). So far as these rules are concerned, in the panchnama there is a clear reference that the article of food purchased from accused No. 1 was divided into three equal parts and thereafter was put in clean and dry bottles. Each bottle was tightly closed with a cork, on which brown paper was put and thereafter it was tied by means of twine and thereafter on the knots of each bottle, seal was affixed. It is difficult to accept the contention of the learned Advocate for accused No. 1 that there is a breach of Rule 14. Even in his evidence, the complainant Food Inspector has stated that the article was divided into three equal parts and thereafter the same was put in clean and dry bottles; thereafter the bottles were closed by means of cork and thereafter tied with a twine. Thus, it is very clear from the evidence placed on record that there is compliance of Rules 14 and 16 (a ). ( 10 ) ). The Food Inspector has further deposed on oath that he obtained the signature of the panchas on the label to be affixed on the bottle on which details were mentioned and the label was pasted on the bottle on which serial number of the sample and other details were mentioned; On the label pasted, two seals were affixed in the presence of panchas and accused No. 1. Thus, there is compliance of Rule 15. Food Inspector has further deposed that the bottles were thereafter wrapped in thick brown paper and after folding the brown paper, the ends of the paper were neatly folded in and affixed by means of adhesive. Thereafter, a paper slip bearing the signature, serial and code number of the local authority was pasted in such a way that it went round completely from the bottom to the top of the container and secured the same by means of thread and the signature of accused no. 1 and panchas were taken in such a way that the wrapper and paper slip both carry part of the signatures of the persons who signed as referred hereinabove. He has deposed that paper cover was secured by means of twine. Thereafter, four seals were affixed on each bottle. In the panchnama, he has described similarly and so far as the seals are concerned, it is noted that four seals were affixed on paper cover. one on the bottom part, one on the top portion and two on the body of the packet. Mr. Tripathi, learned Advocate submitted that the procedure prescribed in Rule 16 has not been strictly adhered to in the instant case. He submitted that in the panchnama, there is a reference of applying four seals as laid down in Rule 16 (d ). However, before the Court, he has not specifically stated as to on which part of the sample bottle seals were affixed but he only stated that four seals were affixed on the sample bottle. ( 11 ) ). Mr. Tripathi has further submitted that two ends of the brown paper were not gummed. In the evidence, on oath, he has specifically stated that after the sample bottles were kept in thick brown paper, ends of the paper were folded and affixed by means of adhesive which is not challenged. Therefore, there is no substance in this submission. ( 12 ) ). Mr. In the evidence, on oath, he has specifically stated that after the sample bottles were kept in thick brown paper, ends of the paper were folded and affixed by means of adhesive which is not challenged. Therefore, there is no substance in this submission. ( 12 ) ). Mr. Tripathi further submitted that though the Food Inspector has stated that the paper slip of the size that goes round completely from the bottom to top of the container bearing the signature and code and serial number of the Local (Health) Authority was pasted on the wrapper with the signature of the person from whom the sample has been taken; however the same was not secured by means of strong twine or thread both above and across the bottle. He further submitted that the knots of twine were required to be fastened on the paper cover by means of sealing wax on which there should be four distinct seals. His contention is that the food Inspector has not deposed in clear terms that sub-rule (d) of Rule 16 has been complied with. He further submitted that in view of the decision of the Apex Court in the case of State of Maharashtra v. Rajkaran, reported in 1988 Cr. LR (SC) 84, as there is breach of Rule 16. it must be held that the prosecution has failed to establish that the accused has committed an offence. ( 13 ) ). In support of the last submission with regard to the compliance of mandatory rule. Mr. Tripathi submitted that in the case of State of Muluirashtra (supra) the public Analyst, on examination found presence of Coaltar Dye of prohibited variety and the prosecution was launched against the proprietor as also the manager of the tea shop. At the trial proprietor was acquitted and the acquittal became final. However, the manager was convicted by the trial Court but in appeal was acquitted, the acquittal appeal preferred by the. State came to be dismissed in limine. The Court observed that :-"admittedly, in the present case a copy of the memorandum and specimen impression of the seal used to seal the packet referred to in Rule 17 were sent by registered post to the Public Analyst. Rule 1 8 authorises that these material can be sent to the Public Analyst cither by registered post or otherwise delivered to him. Rule 1 8 authorises that these material can be sent to the Public Analyst cither by registered post or otherwise delivered to him. In the present case the mode of despatch to the Public Analyst was stated to he by registered post. The appellate Court took the view that when the prosecution came with the story that the material has been despatched by registered post, it was to establish its case of such despatch and did not accept the version of the prosecution in the absence of postal receipt. "the Apex Court found that the prosecution failed to establish that the documents referred to in Rule 18 has been separately sent and that lead to the conclusion that there was non-compliance with the scheme covered in Rules 17 and 18 of the Rules. ( 14 ) ). In the case of N. Sukumaran Nair v. Food Inspector, reported in 1997 (7) scc 101 , High Court set aside an order of acquittal expressing the views that there is compliance of Rule 18 as the report of the Public Analyst specified that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector making the sample in a condition fit for analysis would be the end of the matter and that the statement of the Food Inspector was not deficient when the postal receipt was not adduced in evidence. Apex Court repelled the contention that Rule 18 is breached by holding that :-". . . . But it the word of Food Inspector is not challenged in the cross-examination and is otherwise corroborated from the report of the Public Analyst wherein the necessary recitals, even though in printed form, are available, compliance of Rule 18 becomes obvious. Such report of the Public Analyst is ex facie evidence. " ( 15 ) ). The duty of the prosecution does not end after the samples are packed as per Rule 16. It is the obligation of the Food Inspector to forward the sample in the manner prescribed in Rule 17. He has to forward the sample to the Public Analyst in conformity with Rule 18. " ( 15 ) ). The duty of the prosecution does not end after the samples are packed as per Rule 16. It is the obligation of the Food Inspector to forward the sample in the manner prescribed in Rule 17. He has to forward the sample to the Public Analyst in conformity with Rule 18. If Rules 17 and 18 are read together, it becomes clear that the rule making authority wanted to ensure identity of the sample and for that reason provided measures for cross-checking the same. The Food Inspector and the public Analyst are public servants. ( 16 ) ). In the instant case, the Food Inspector is not cross-examined on the point of following the procedure as contemplated in Rule 16. Food Inspector has described the procedure, i. e. , the taking of the sample, dividing, packing and sealing of the samples and sending one of the samples to Public Analyst and on the record, there is analysis report of the Public Analyst of the sample sent to him. ( 17 ) ). In the case of Babubhai Hargovinddas v. State, reported in 1970 GLR 530 , at 553, para 35, while dealing with a similar issue, this Court held as under :-"it would not be unreasonable to assume that they would exercise those powers and discharge those duties in accordance with these provisions. Insofar as the exercise of power and the discharge of this duty do not bear on the ingredients of the offence, a presumption in favour of compliance with the law is permissible under Sec. 1 14, illustration (e) of the Evidence Act provided the broad facts which would justify the presumption to be raised arc made out. For example, if a sample taken for analysis is to amount to a sale it must be taken in accordance with the provisions of Sec. 11 (1) and the observance of this provision cannot be presumed. But if after a sample has been taken and the Food Inspector deposed as to his having divided it into three parts and then marked, scaled and fastened each part. the fact that this was done in such a manner as 10 comply with the rules in that behalf could be reasonably presumed in the absence of any challenge on that point. As pointed out in Purshottam v. Emperor, (AIR 194a Bom. 492) the presumption under Sec. I 14. the fact that this was done in such a manner as 10 comply with the rules in that behalf could be reasonably presumed in the absence of any challenge on that point. As pointed out in Purshottam v. Emperor, (AIR 194a Bom. 492) the presumption under Sec. I 14. Illustration (e) is that of the regularity of the official acts. whether judicial or executive, and not that ol acts themselves being done. II lor instance a notification is issued under the powers given by law, there is a presumption that it was regularly published and promulgated in the manner in which it was required to be done. . . . . "in paragraph 38 of the judgment in the case of Babubhai (supra), His Lordship further observed that :-"the ratio of these decisions is that, no doubt, the Food Inspector and the Public analyst are expected to follow the procedure laid down in the rules but absence of direct evidence in proof of compliance with the requirements of the rules does not justify the conclusion that the requirements were not complied with. If the principal requirement of the provisions of Adulteration Act and the rules as to the taking of the sample, sealing the sample, sending of the sample and analysis of the sample have been clearly made out the procedure details as to the prescribed manner ol doing these acts may be presumed depending on the facts of the case. Presumption is not mandatory but permissible. Whether or not to raise a particular presumption will, therefore, depend upon facts proved and the nature of the fact to he presumed as proved. If that is so, the positive proof of the nature contended for by Mr, Thakore in respect of observance of every pan of these rules is not called for. " ( 18 ) ). Once it is satisfactorily established that the Food Inspector after taking the sample, divided it into three parts, sealed the same. forwarded one of the part to the Public Analyst for analysis, it can be safely said that the procedure details as to the prescribed manner of doing these acts has been followed. " ( 18 ) ). Once it is satisfactorily established that the Food Inspector after taking the sample, divided it into three parts, sealed the same. forwarded one of the part to the Public Analyst for analysis, it can be safely said that the procedure details as to the prescribed manner of doing these acts has been followed. Evidence of the food Inspector is not challenged in the cross-examination so far as procedure is concerned and the Food Inspector has clearly stated before the Court on oath regarding taking of the sample, dividing, packing and sealing of the same, and sending one of the samples to the Public Analyst. The analysis report of the sample wherein necessary recitals in Form III are available is on the record. In view of these facts, the Court would be justified in drawing a presumption that the procedure has been followed. Merely because the Food Inspector in his evidence does not say that he applied four seals as mentioned in the rule but has stated that he applied four seals or that the paper cover was not secured by means of strong twine, it would not be proper to say that the Food Inspector has not sealed the sample as per the rules. He has clearly deposed about the four seals having been affixed on the sample and the report of the Public Analyst clearly indicates that the Public Analyst received a sample bearing code number and serial number D/nb/dhd/1/36 of 1986 of Local (Health) Authority for analysis properly sealed and fastened and that the seal was intact and unbroken. From the report, it is very clear that the seal fixed on the sample and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis, a presumption is to be raised. ( 19 ) ). The case of Kamleshkumar Babulal v. State, reported in 1981 GLR 404 . was referred to a Division Bench by the learned single Judge. The Division Bench had an occasion to consider whether a presumption can be raised or not with regard to compliance of Rule 16 (d ). Rule 16 requires that the knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. The Division Bench had an occasion to consider whether a presumption can be raised or not with regard to compliance of Rule 16 (d ). Rule 16 requires that the knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. In the evidence, there was nothing to indicate that the Food Inspector has covered the knots of the twine. While dealing with such a situation, the Division bench observed as under in paragraph 21 :"in our opinion, in the absence of any positive evidence to the contrary, there would be a presumption that knots of twine were covered by means of scaling wax bearing the impression of the seal of the Food Inspector. "before the Court, there was evidence that each of the sample bottles was wrapped in a brown paper and four seals were affixed on the packet. The Division Bench held that :"this evidence is sufficient to raise a presumption that all the requirements of rule 16 (d) were complied with. In other words, it must be presumed thai the knots of the twine were covered by means of sealing wax bearing the seal of the Food inspector as required by clause (d) of Rule 16. " ( 20 ) ). Principal requirement as laid down in the Act and Rules as to the taking of a sample, dividing the same in three parts, sealing the sample, sending of the sample to the Public Analyst and analysis of the sample have been clearly made out. Procedure details as to the prescribed manner of doing these acts are to be presumed in the facts and circumstances of the case. It is clearly stated that paper cover was secured by means of twine and four seals were affixed. Procedure details such as covering the paper cover by thread both above and across the bottle and fastening of thread on paper cover by means of sealing wax having four seals one on top, one at bottom and other two at the body of the bottle and covering the knots of twine by means of sealing wax bearing impression of the sender must be presumed in absence of positive contrary evidence in the facts of this case. . ( 21 ) ). Before the Apex Court, in the case of Kassim Kunju Pookunju v. K. K. Ramakrishna Pillai. . ( 21 ) ). Before the Apex Court, in the case of Kassim Kunju Pookunju v. K. K. Ramakrishna Pillai. reported in 1976 (II) FAC (Old Judgments) 68, the facts of the case were that the sample taken was divided into three parts and each part was put into a paper packet, fastened them with labels and affixed seals thereto. One part was given to the accused No. 2 and one part was produced before the Court and the third part was forwarded to the Public Analyst along with a memorandum in Form VII and a specimen impression of the seal used. The part of the sample which was to be sent to the Public Analyst and the memorandum and the specimen impression of the seal were entrusted according to the evidence of the Food Inspector to the Panchayat Officer, who sent them by registered post. The report of the Public analyst showed that the sample sent to him contained coaltar dye and was adulterated. A contention was raised before the Full Bench of the Apex Court that the Rules framed under the Act had not been complied with inasmuch as it has not been proved that the specimen impression of the seal used had been sent to the Public analyst. The High Court relied on the report of the Public Analyst that the sample of compounded misty asafoetida was received in properly sealed and packed condition and that he had found the seal intact and unbroken. The same contention which was raised before the High Court was pressed before the Apex Court that it is nowhere stated in Exh. 9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court. while rejecting the contention relied on the principle that official acts must be presumed to have been regularly performed, and under Rule 7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis. The High Court held that it must be presumed that the Public Analyst acted in accordance with the Rule and he must have compared the specimen impression received by him with the seal on the container. In the circumstances, the Apex Court upheld the decision of the High Court. The High Court held that it must be presumed that the Public Analyst acted in accordance with the Rule and he must have compared the specimen impression received by him with the seal on the container. In the circumstances, the Apex Court upheld the decision of the High Court. ( 22 ) ). In the instant case, in view of analysis report in Form III. it is clear that the Public Analyst has received the sample bottle from the Food Inspector which has been forwarded by the Food Inspector in compliance with Rule 17. Memorandum and specimen impression of the seal used to seal the packet has been sent in a sealed packet separately, in compliance with Rule 18, and the public analyst has compared the same. Therefore, the only presumption that can be drawn is that the sample analysed by the Food Inspector is the same which was collected from the accused. In the circumstances, the arguments advanced by learned Advocate on behalf of the accused that there was non-compliance of rule is rejected. III. Evidence of Panch : ( 23 ) ). Learned Advocate Mr. Tripathi submitted that as there is no corroboration. the evidence of Food Inspector should not be accepted. ( 24 ) ). The Apex Court, in the case of State of U. P. v. Hanif, reported in air 1992 SC 1121 . held as under in paragraph 4 of the judgment :-". . . . It is not (he law thai the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspected, nor he rejected on that ground. He diseharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits and if found acceptable, the Court would be entitled to accept and rely on to prove prosecution case. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the Panch witnesses seeking corroboration to the evidence of the Food Inspector. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the Panch witnesses seeking corroboration to the evidence of the Food Inspector. "when there are no personal allegations against the Food Inspector, and the factunn of purchase is not in question, the evidence of Food Inspector must be accepted as it is. ( 25 ) ). In the case of Prem Ballab v. State (Delhi Admn.), reported in AIR 1977 sc 56 , the Apex. Court held as under in paragraph 3 :". . . . . . There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. 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. 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; if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses. . . . . " ( 26 ) ). In the case of Babulal v. State of Gujarat, reported in AIR 1971 SC 1277 , the Apex Court has held as under in paragraph 5 of the judgment :"even otherwise, in our view no question of the trial being vitiated for non- compliance of these provisions can arise. It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice or is it similar to the one as in the case of Wills where the law makes it imperative to examine an attesting witness under Sec. 68 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. At the most. 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 Sec. 10 (7) arc akin to those under Sec. 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 excesses 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 minimizing the need to comply with the aforesaid salutary provisions. In this case, however, there is no justification in the allegation that the provisions have not been complied with because the Panch witness had been called and his signatures taken which he admits. In these circumstances the Courts were justified on the evidence of the Food Inspector that he had complied with the requirements and that the samples were seized in the presence of the Panch witness whose signatures were taken in the presence of the accused. "the contention raised by learned Advocate Mr. Tripathi has no merit in the light of the aforesaid judgments of the Honble Supreme Court. IV. Consent : ( 27 ) ). Mr. Tripathi. learned Advocate for the accused, failing in these three submissions which he argued at length, submitted that the consent is not in accordance with law and there is nothing to show that there is application of mind; therefore, it must be held that the prosecution has failed to prove having a consent in accordance with law. Mr. Tripathi has invited my attention to the original record of the case wherein the consent is in a cyclostyled form. Mr. Tripathi has invited my attention to the original record of the case wherein the consent is in a cyclostyled form. Some of the blanks are filled in and at some places, original print is scored out by a pen, and some other places, certain words are added by a pen. It is in this background he submitted that as against one accused, there was no material to prosecute yet the authority accorded consent without applying mind. ( 28 ) ). There is no substance in the submission so far as the use of cyclostyed form and the blanks filled in by ink are concerned. However, it is required to be noted in the instant case that as per the prosecution version, the Food Inspector was specifically called with all the papers for the first time by the sanctioning authority and at that point of time, the sanctioning authority was explained the details with the papers pertaining to the case. It is required to be remembered that along with these papers, a xerox copy of the bill was also produced, alleged to have been issued by Vinod Sugar Works in the name of Burhani Peppermint Stores. The name of the accused No. I is not mentioned in the bill. Reading the bill, it is not clear that the article supplied under the bill is the same article of which the Food Inspector collected the sample. The bill clearly shows that 30 kgs. of peppermint was supplied by Vinod Sugar Works to Burhani Peppermint Stores. In the bill, description of the goods is not mentioned. Moreover, in the bill, there is no warranty. It is also required to be noted that on the container of the food article of which sample was taken by the Food Inspector, neither warranty was labelled nor the name of Vinod sugar Works was printed. In other words, accused No. 2 Vinod Sugar Works is not shown as the manufacturer of the article of food of which sample was taken. and there was nothing to show that under the bill accused purchased the article of food. Despite this, we find that the competent authority has consented to prosecute accused No. 2. ( 29 ) ). In the case of State of Bihar v. P. P. Sharma, reported in 1992 Supp. and there was nothing to show that under the bill accused purchased the article of food. Despite this, we find that the competent authority has consented to prosecute accused No. 2. ( 29 ) ). In the case of State of Bihar v. P. P. Sharma, reported in 1992 Supp. (1) scc 222, the Apex Court considered the effect of the sanction under Sec. 197 of the Criminal Procedure Code, and held as under at page 268 :-". . . . . . It is equally well settled that before granting sanction the authority or the appropriate Government must have before it the necessary report and the material facts which prima facie establish the commission of offence charged for and that the appropriate Government would apply their mind to those facts. The order of sanction is only an administrative act and not a quasi-judicial one nor is a lis. involved. Therefore, the order of sanction in support thereof as was contended by Shri Jain. But the basic facts that constitute the offence must be apparent on the impugned order and the record must bear out the reasons in thai regard. " ( 30 ) ). Mr. Patel, learned Additional Public Prosecutor relied on the decision of the Apex Court in the case of Suresh H. Rajput v. B. P. Soni, reported in AIR 1996 sc 2883 . In paragraph 12 of the judgment, the Apex Court held as under :-"it is seen that the analysis report which was placed before the Local (Health) authority and the other pertinent material in connection therewith have been placed before the sanctioning authority. After going through the material, sanction was granted for laying the prosecution. At that stage, it was not for the sanctioning authority to weigh pros and cons and then to find whether the case could end in conviction or acquittal or the adulteration was abnormal or marginal etc. All these are not matters for the sanctioning authority to weigh and consider the pros and cons of the case before granting sanction to lay prosecution against the respondents. "relying on this judgment, Mr. Patel, learned A. P. P. , submitted that it is not for the sanctioning authority to weigh the pros and cons or to find whether the case would end in conviction or acquittal. ( 31 ) ). "relying on this judgment, Mr. Patel, learned A. P. P. , submitted that it is not for the sanctioning authority to weigh the pros and cons or to find whether the case would end in conviction or acquittal. ( 31 ) ). Before granting a consent, the competent authority has to apply its mind with regard to the person who is alleged to have sold, manufactured, distributed or stored the article of food is responsible or not. Merely because the accused No. 1 for his defence suggested that the accused No. 2 has supplied the article of food manufactured by him, or that he was dealing on behalf of the accused No. 2, the same is not to be accepted blindly. There was no label having a warranty on the container of the article of food. Even the bill on record does not indicate that the article of food was supplied to acqused No. 1, but it only shows that 30 kgs. of peppermint was supplied to Burhani Peppermint Stores. The sanctioning authority ought to have applied its mind that whether from the fact it can be said that against the accused No. 2, there is prima facie evidence or not. It is certainly not necessary for him to weigh the evidence but that does not mean that he has not to ascertain whether the person against whom consent is to be accorded is in any way concerned or not with the article of food which is adulterated. Laying prosecution against someone is not a simple matter and consent is not to be accorded without any application of mind. In the instant case, neither the material supplied nor the name of the party mentioned in the bill connect the accused No. 2 with the article of the adulterated food; despite sanction is accorded to prosecute him. Thus, it is clear that the sanction is granted without application of mind. ( 32 ) ). As pointed out above, the authorities ought to have realised the stage at which the accused No. 2 could be joined, or whether there is sufficient evidence to accord consent to prosecute the accused No. 2 or not. In view of what is stated hereinabove. it can be said that there was no evidence worth the name to grant sanction to prosecute the accused No. 2. In view of what is stated hereinabove. it can be said that there was no evidence worth the name to grant sanction to prosecute the accused No. 2. In the circumstances, in granting a consent to prosecute, there is non-application of mind while sanctioning the prosecution. The contention raised by the learned Advocate on this ground, therefore, is required to be accepted, and it is required to be held that there is no sanction in accordance with law. If that be so, the prosecution must fail. In the result, the order of acquittal against the accused No. 1 is required to be confirmed on this ground. ( 33 ) THIS appeal stands dismissed. .