Food Inspector, Cannanore Municipality v. Kannan — 1999 DIGILAW 1756 (MAD)

Judgment: This is an appeal filed by the Food Inspector of the Cannanore Municipality against the order of the learned Sessions Judge of Tellicherry acquitting the respondent (accused) who was convicted by the District Magistrate of Tellichirry for an offence under section 16(1) read with section 7 of the Prevention of Food Adulteration Act-Act XXXVII of 1954 (hereinafter referred to as the Act). On the morning of 24th December, 1961, P.W.1 one of the Food Inspectors of the Cannanore Municipality, found the accused carrying milk for sale. He purchased one battle of milk and after notifying that it was for the purpose of analysis duly sealed the same in the presence of witnesses. One of the sample bottles and also the price was given to the accused and Exhibit P-1 is the Form VI notice prepared and the accused has acknowledged the receipt of the sample bottle in it. One of the bottles was then sent to the Public Analyst and his report Exhibit P-2 showed that the milk contained not less than 55 per cent, of added water. The accused, was, therefore, prosecuted. The Food Inspector was examined as P.W. 1 and one of the two attesting witnesses was examined as P.W. 2. When examined P.W 2 denied that he was present at the time of sampling, but admitted that he had signed Exhibit P-1. The learned Magistrate disbelieved the evidence of P.W.2 and accepting the evidence of P.W.1 found the accused guilty and convicted him. In appeal before the learned Sessions Judge of Tellicherry it was contended that there was contravention of the provisions contained in section 10 (7) of the Act inasmuch as the evidence does not show that any witnesses were present at the time of sampling and as the directions contained in section 10 (7) are mandatory the whole trial was vitiated. The learned Judge accepted the contention that the requirement in section 10(7) of the Act as to the presence of two independent witnesses was imperative and acquitted the accused on the ground that there was contravention of the provisions of section 10(7) of the Act. The conclusions reached by the learned Judge is challenged in this appeal. On notice being given the respondent did not appear in Court, but I have heard the appellant’s counsel and the Public Prosecutor. The view taken by the learned Sessions Judge appeals to be clearly wrong. The conclusions reached by the learned Judge is challenged in this appeal. On notice being given the respondent did not appear in Court, but I have heard the appellant’s counsel and the Public Prosecutor. The view taken by the learned Sessions Judge appeals to be clearly wrong. Section 10(1) of the Act confers power on the Food Inspector to take samples for analysis. Sub-section (5) gives power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale and under the proviso to the sub-section the Food Inspector is required to follow the provisions contained in section 103 of the Code of Criminal Procedure. Sub-section (7) which is the material provision with which we are concerned reads: “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 as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures.” So under section 10 (7) the Food Inspector is required to secure the presence of at least two persons at the time he takes the sample of any article of food for analysis from any person selling that article, unless it is not possible to secure the presence of such witnesses. Sub-section (1) of section 10 does not expressly state that a memorandum has to be prepared, when a sample is taken, but when read along with sub-section (7) which requires obtaining of signatures of at least two persons who are called to witness the taking of sample it becomes abundantly clear that the Food Inspector has to draw up a memorandum about the taking of the sample and it is in this memo that the signatures of the witnesses have to be obtained. The Rules framed under the Act do not prescribe any form for such a memo, though rule 12 lays down that when a Food Inspector takes a sample of article of food for purposes of analysis he shall intimate such purpose in writing in Form No. VI to the person from whom he takes the sample. The Rules framed under the Act do not prescribe any form for such a memo, though rule 12 lays down that when a Food Inspector takes a sample of article of food for purposes of analysis he shall intimate such purpose in writing in Form No. VI to the person from whom he takes the sample. There can be no doubt that the Legislature intended that the Food Inspectors should follow the procedure laid down in the Act and the Rules. So when in any particular case the procedure is not adopted it would be for the prosecution to satisfy the Court that it was not on account of any desire to circumvent the provisions of sub-section (7) of section 10 of the Art that the procedure was not followed, but it was due purely to the non-availability of the witnesses. The provision has been enacted as a safeguard for an accused person, because the consequences of the conviction for an offence under this section are likely to be grave as a serve penalty is provided for second or subsequent offerees. The Court would, therefore, insist upon the observance of such safeguards as they are not intended to be set at nought or disregarded by the officers concerned. The question then arises whether the non-compliance with the provisions contained in sub-section (7) of section 10 of the Act would render the entire proceedings void and vitiate the trial. I have been referred to the decision of the Madras High Court in In re, Raju Konar1, where Somasundaram, J., set aside the conviction of the accused in a case where the provision of section 10(7) had not been complied with. The other decisions referred to are the decisions in State v. Mohammed Ibrahim2, and State v. Natesa Gounder3. In the first of these two cases the failure of the Food Inspector to call any witnesses to attend at the time when the action was taken by the Food Inspector was characterised as a flagrant violation of the Act, but the decision was really based on the ground of prejudice caused to the accused. In the other case the earlier case was followed and it was held that section 10 (7) was mandatory in the sense that it is meant to be complied with. In the other case the earlier case was followed and it was held that section 10 (7) was mandatory in the sense that it is meant to be complied with. Another decision to which reference may be made is the decision in City Corporation, Trivandrum v. Arunachalam Reddiar4, a Division Bench ruling of this Court, where their Lordships while insisting upon the observance of the terms of this provision of law, held that the non-compliance was a serious irregularity, resulting in prejudice to an accused person. The effect of all these decisions was considered in a later case in Criminal Appeals Nos. 92, 112 and 114 of 1960 (not reported) and after a review of the entire case-law Velu Pillai, and Anna Chandy, JJ., came to the conclusion that noncompliance with the provisions of section 10(7) of the Act is only an irregularity and the question which would arise on such non-compliance would be whether the accused is prejudiced and whether the evidence adduced is worthy to be acted upon. The other High Courts also while insisting upon strict compliance with this provision of law have also held that it was only an irregularity which per se does not vitiate the proceedings relating to the taking of the sample or the subsequent prosecution based thereon. In the case in State of Mysore v. Udipi Co-operative Milk Society, Ltd.1a Division Bench held that they did no accept the view of the Madras High Court reported in In re Raju Konar2that a contravention of section 10 (7) of the Act however trifling it was perse vitiated the prosecution. They observed: “The essential test was one of prejudice to the accused, apart from the reliability of the evidence adduced.” The Madras case was distinguished as having no applicability to the facts of the case with which they were dealing. In Public Prosecutor, Andhra Pradesh v. Chitrala Venkitaswamy3, Basi Reddi, J., observed: “Sub-section (7) of section 10 of the Prevention of Food Adulteration Act requires a Food Inspector to do no more than call two persons to witness the seizure and the sampling of food suspected to be adulterated. He has no power to compel them to be present. In Public Prosecutor, Andhra Pradesh v. Chitrala Venkitaswamy3, Basi Reddi, J., observed: “Sub-section (7) of section 10 of the Prevention of Food Adulteration Act requires a Food Inspector to do no more than call two persons to witness the seizure and the sampling of food suspected to be adulterated. He has no power to compel them to be present. The words ‘as far as possible’ occurring in sub-section (7) of section 10 indicate that this is a. mere directory provision and not a mandatory provision, the contravention of which, would have the effect of rendering the seizure illegal and the subsequent prosecution invalid even if there be no prejudice.” To the same effect is the decision in Public Prosecutor v. Viswanathan Chetty4, where also it was ruled that mere violation of sub-section (7) of section 10 of the Act would not by itself affect the legality or validity of the act of the Food Inspector and noncompliance would bea curable irregularity which would not vitiate the trial. In KapoorChandv. City of Jabalpur Corporation5Naik, J., while holding that noncompliance with sub-section (7) of section 10 did not vitiate the trial, went to the extent of observing that the provision regarding the calling of two persons as witnesses at the time of taking the sample was directory and not mandatory. The same view was taken in a recent decision of the Punjab High Court in State v. Sadhu Singh6, where their Lordships held that sub-section 7) of section 10 merely prescribes the procedure for taking samples of the articles suspected to be adulterated and it will be unreasonable to hold that any non-compliance with this provision of law, however minor it may be, would render the prosecution based upon such taking of samples illegal. A provision similar to that contained in sub-section (7) of section 10 of the Act is to be found in section 103, Criminal Procedure Code the relevant portion of which runs as follows: “103. (1) Before making a search under this chapter, the officer or other p:rson about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them to do so. (1) Before making a search under this chapter, the officer or other p:rson about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them to do so. * * * *” On a comparison of these two provisions of law, it will be noticed that, in fact, section 103 of the Code of Criminal Procedure is more stringent. The expression “if possible”, which occurs in sub-section (7) of section 10 of the Act has no place in section 103 of the Code of Criminal Procedure. It is now well settled that non-compliance with section 103 (1), Criminal Procedure Code does not render the search illegal, nor does it vitiate the proceedings taken in respect of recovery of incriminating articles as a result of a defective search. It is needless to refer to the numerous decisions of the various High Courts as the matter has been finally settled by their Lordships of the Supreme Court in Sunder Singh v. State of U.P 1, where their Lordships observed: “At the highest, the irregularity in the search and the recovery, in so far as the term of section 103 had not been fully complied with, would not affect the legality of the proceedings. It only affected the weight of evidence.” In dealing with the provisions of section 103, Criminal Procedure Code, their Lordships of the Judicial Committee observed as follows in Malak Khan v. Emperor2: “In their Lordships’ opinion, the presence of witnesses at a search is always desirable, and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles, but their attendance at the search is not always essential in order to enable evidence as to the search to be given.” These decisions were followed in a Full Bench decision of this High Court in Kochan Velayudhan v. State of Kerala3, where it was held that the contravention of the provisions of section 103, Criminal Procedure Code, thereby making the search defective will not vitiate the trial or make the evidence of the search officers inadmissible in evidence. This is the view taken in a recent decision of the Supreme Court in Radha Kishan v. State of U.P.4. This is the view taken in a recent decision of the Supreme Court in Radha Kishan v. State of U.P.4. There it was stated: “It may be that where the provisions of sections 103 and 165, Criminal Procedure Code, are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated.” Therefore there can be no doubt that the view taken by the learned Sessions Judge that the non-compliance of the provisions of section 10 (7) will vitiate the trial resulting in the acquittal of the accused is wholly erroneous. Probably, these decisions had not been placed before the learned Judge. That apart, I am unable to see how in this case the learned Sessions Judge has come to the conclusion that there is a violation of the provisions of section 10 (7). According to the evidence of P.W.1 the sample was taken in the presence of two witnesses and they have attested the memo Exhibit P-1 Which was prepared or the spot. The only question would be whether the evidence of P.W.1 could safely be accepted. The mere fact that one of the attesting witnesses when examined deposed that he was not present at the time of the sampling and that he signed the memo, later is not by itself sufficient to hold that the directions contained in section 10 (7) were not complied with. The learned Judge has further to consider the question as to whether P.W.1’s evidence could safely be accepted in preference to the evidence of the attesting witnesses. There is no rule of law that the evidence of the Food Inspector alone cannot be believed and accepted by the Court. If the Court is unable to place full faith on the evidence of the Food Inspector then the non-examinations of the attestors may assume some importance. In this case the learned Judge has not considered this aspect of the mattes at all. P.W.1 has deposed to the circumstances leading to the purchase of the milk and how it was dealt with by him. In this case the learned Judge has not considered this aspect of the mattes at all. P.W.1 has deposed to the circumstances leading to the purchase of the milk and how it was dealt with by him. The learned Judge has to consider on the evidence whether any material has been brought on record to show that his evidence cannot safely be accepted. He has also to consider whether the evidence of P.W. 2 which is opposed to the recitals contained in Exhibit P-1 is to be accepted. Merely because one of the attesting witnesses says that Exhibit P-1 was signed by him later and that he wasnot present at the time of the sampling would not conclude the matter and enable the Court to straightaway come to the conclusion that the provisions of section 10 (7) have not been complied with. The Court has to consider whether the evidence of P.W. 2 is sufficient to wipe out the effect of the evidence of P.W.1 who normally could be taken as a disinterested witness. As there is absolutely no discussion of the evidence and the acquittal has been based only on the ground that non-compliance with the provisions of section 10 (7) vitiates the entire trial it would be fair to the accused if Inset aside the order of acquittal and remand the case for re-hearing by the learned Sessions Judge. Ordered accordingly. The learned Sessions Judge would give notice and give an opportunity to the parties to be heard. The appeal is allowed. M.C.M. ------------- Appeal allowed.