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2003 DIGILAW 29 (PNJ)

Raj Kumar v. State of Punjab

2003-01-08

NIRMAL SINGH

body2003
ORDER Nirmal Singh, J. - The case of the prosecution in brief is that the petitioner was running a store under the name and style Deepak Kariana Store, Batala Road, Verka. On 20.11.1986 at about 1.00 P.M. Dr. V.D. Sharma, Food Inspector along with Dr. M.S. Pannu visited the store. In the store, the petitioner was found in possession of 20 kg of Basin in a gunny bag for public sale. Dr. V.D. Sharma disclosed his identity as Food Inspector and served notice on Form VI Ex. PB to Raj Kumar and took sample of Basin by preparing a memo Ex. PC which was duly attested by Dr. M.S. Pannu and Raj Kumar accused. The sample was divided into three equal parcels packed in cleaned and dry bottles. The bottles were stoppered tightly. After completion of the investigation, the complaint was filed by the Food Inspector. The petitioner was prosecuted under Section 16(1)(a) of the Prevention of Food Adulteration Act (hereinafter called the Act). 2. To prove its case the prosecution has examined Dr. V.D. Sharma as PW-1 and Dr. M.S. Pannu as PW-2. 3. When the petitioner was examined under section 313 Criminal Procedure Code to explain the incriminating evidence against him, he denied simplicitor and pleaded false implication. He was called to lead evidence in defence but he did not examine any evidence in defence. 4. After hearing the counsel for the petitioner and the Public Prosecutor for the State, the learned magistrate convicted and sentenced the petitioner to undergo RI for six months and to pay a fine of Rs. 1,000/-. In default of payment of fine, the petitioner was further directed to undergo RI for two months, aggrieved by which, the petitioner filed an appeal before the learned Sessions Judge, Amritsar who vide order dated 7.8.1990 confirmed the conviction and sentence awarded by the learned trial Court. Aggrieved by the order of confirmation, this revision petition has been filed. 5. Shri P.L. Singla, counsel for the petitioner submitted that the Food Inspector has not complied with the mandatory provisions of Section 10(7) of the Act. He contended that the Food Inspector has not drawn the sample in the presence of any independent witness nor he has tried to join the independent witness. He contended that there was no explanation coming from the prosecution as to why the said provisions of law have not been complied with. He contended that the Food Inspector has not drawn the sample in the presence of any independent witness nor he has tried to join the independent witness. He contended that there was no explanation coming from the prosecution as to why the said provisions of law have not been complied with. 6. Shri Sanjay Majithia, learned Addl. A.G. Punjab virtually failed to rebut the submissions made by the counsel for the petitioner. 7. After hearing the learned counsel for the parties and perusing the record, I am of the considered opinion that this revision has merit and deserves to succeed. 8. The Courts below have overlooked the mandatory provisions of Section 10(7) of the Act, which reads as under :- "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." 9. A perusal of the section shows that when any action under clause (a) of sub-section (1) or sub-section (2), or sub-section (4) or sub-section (6) is to be taken by the Food Inspector, he shall call one or more persons to be present at that time. 10. In the instant case, PW-1 and PW-2 have not given any explanation why they have not called any independent witness to watch the proceedings. It is not the case of the prosecution that the Food Inspector had tried to join the independent witnesses but they refused. If the Food Inspector tried to join the independent witnesses and the persons had refused to join the proceedings then the matter would have been different but the Food Inspector has not made even attempt to join the independent witness. When an independent witness has not been joined, it is in violation of the mandatory provisions of sub-section (7) of the Section 10 of the Act and the proceedings against the accused are vitiated. When an independent witness has not been joined, it is in violation of the mandatory provisions of sub-section (7) of the Section 10 of the Act and the proceedings against the accused are vitiated. In Shri Ram Labhaya v. Municipal Corporation of Delhi and another, 1974 SCC (Crl.) 527 it has been held as under :- "We are of the opinion, particularly in view of the legislative history of Section 10(7) that while taking action under any of the provisions mentioned in the sub-section, the Food Inspector, must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non- presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which section 10(7) casts on the Food Inspector is to call one or more persons to be present when he takes action." Similar view has been taken in Mool Chand v. State of Punjab, 1981 CLR 555 and Subash Chander v. The State of U.T. Chandigarh, 1984(2) CLR 262. For the reasons mentioned above, the petition is allowed. The conviction and sentence awarded by the Courts below is set aside. The petitioner is acquitted of the charges framed against him. His bail bonds and surety bonds are discharged. Petition allowed.