P. S. NARAYANA, J. ( 1 ) THIS Criminal Appeal is filed as against the judgment in Criminal Appeal No. 98 of 1997 on the file of the Sessions Judge karimnagar, whereunderthe Appellate court had reversed the conviction and sentence imposed against the accused in Calendar case No. 245 of 1995 on the file of the judicial Magistrate of First Class, Siricilla. ( 2 ) THE learned Additional public prosecutor pointed out that the evidence of p. W. 1 would disclose that he made an attempt to secure a panch witness, but since the said person was not inclined and refused to disclose his name and went away, it cannot be said that there is non-compliance of section 10 (7) of the Prevention of Food adulteration Act, 1954, (For brevity the Act ). He would also submit that the learned Judge arrived at a correct conclusion that the report of the Public Analyst is admissible in evidence in proof of the facts stated therein apart from the result of the analysis without production of the Analyst as a witness. He would further contend that the other two grounds on which acquittal had been recorded, thatthe contents of the Public Analyst Report had not been specifically put to the accused under section 313 of Cr. P. C. examination and also there was no stirring before taking of samples cannot be sustained. He would also contend that the evidence of Food Inspector is sufficient and hence in the facts and circumstances of the case, the judgment in criminal Appeal No. 98 of 1997 may have to be set aside and the judgment in C. C. No. 245 of 1995 may have to be restored. ( 3 ) PER contra, Sri Satyanarayana ambadipudi appointed by this Court to assist the Court as amicus curiae, had taken this court through the findings recorded by the appellate Court and would submit that in the facts and circumstances of the case, the acquittal may have to be confirmed. ( 4 ) HEARD the learned counsel on record. ( 5 ) THIS Criminal Appeal is preferred as against the order of acquittal recorded in criminal Appeal No. 98 of 1997 on the file of the Sessions Judge, Karimnagar, reversing the judgment, convicting and sentencing the accused in C. C. No. 245 of 1995 on the file of the Judicial magistrate of First Class, Siricilla. ( 5 ) THIS Criminal Appeal is preferred as against the order of acquittal recorded in criminal Appeal No. 98 of 1997 on the file of the Sessions Judge, Karimnagar, reversing the judgment, convicting and sentencing the accused in C. C. No. 245 of 1995 on the file of the Judicial magistrate of First Class, Siricilla. The respondent as accused was charged under Section 16 (1 ) (a) (i) for contravention of section 2 (ia) (m) and 7 (i) of the Act. The court of first instance sentenced him to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for four months. The same was reversed in Criminal Appeal no. 98 of 1997 by the learned Sessions judge, Karimnagar. ( 6 ) THE case of the prosecution in brief is stated hereunder: l. Narayana, Food Inspector, Division III, karimnagar District (P. W. 1) and his attender md. Hussain (P. W. 2)went to the Kirana shop of the accused under the name and style of m/s. Padakanti Bhoopathi Kiranam situated at Pothur village of Ellanthakunta Mandal in karimnagar District on 05-10-1994 at about 12. 30 p. m. and inspected the said Kirana shop. The accused was found in the shop transacting business. P. W. 1 (Food Inspector) found 14 Kgs of ground-nut oil in a tin kept in the shop for human consumption. P. W. 1 inspeded the said ground-nut oil and suspected that it was adulterated. Then p. W. 1 purchased 375 grams of ground-nut oil from the shop of the accused for a sum of Rs. 15. 00 and obtained cash receipt (Ex. P-9 ). P. W. 1 served a notice in Form no. VI (Ex. P-10) on the accused informing him that the purchased groundnut oil would be sent to Public Analyst for the purpose of analysis. The purchased groundnut oil was divided into three equal parts and each part was filled into dry, clean and empty bottles and corked and tied with thread and sealed them to protect from leakage and air and a label (Ex. P-11) bearing Code No. and Serial no. 169/knr/d-III/14339/1994 of the Local (Health) Authority was fastened on each of sample bottles and on completion of other formalities of sampling, P. W. 1 (Food inspector) Prepared panchanama (Ex. P-12 ). On 06-10-1994 one part of sample bottle with form. P-11) bearing Code No. and Serial no. 169/knr/d-III/14339/1994 of the Local (Health) Authority was fastened on each of sample bottles and on completion of other formalities of sampling, P. W. 1 (Food inspector) Prepared panchanama (Ex. P-12 ). On 06-10-1994 one part of sample bottle with form. VII containing the specimen impression seal of the Food Inspector sent by registered parcel vide post receipt (Ex. P-13 ). Ex. P-14 is the Form No. VII. Separate copy of Form no. VII was dispatched in a sealed cover to the public analyst by registered post with acknowledgment due vide postal receipt (Ex. P-15 ). The remaining two sample bottles along with memorandum in Form No. VII with specimen impression seal were handed over to the Local (Health) Authority and obtained acknowledgment (Ex. P-16 ). After analysis the Public Analyst issued report (Ex. P-17) declaring that the sample of groundnut oil does not conform to Butyro-refractometer reading, Bellier s Test (Turbidity temperature) and Iodine value and istherefore, adulterated. The said analyst report was sent to the Local (Health) Authority, Karimnagar District, along with covering letter and on receipt of the report from local (Health) Authority, karimnagar, P. W. 1 submitted a detailed report to the Food (Health) Authority, A. P. , hyderabad for sanction to launch prosecution against the accused. On perusal of the detailed report of P. W. 1, the Food (Health) authority, Hyderabad, issued order to prosecute the accused under Ex. P-19. Hence the complaint. ( 7 ) THE prosecution examined P. Ws. 1 and 2. Exs. P-1 to 22 were marked. P. W. 1 no doubt deposed in his evidence that at the time of his visit he called a mediator who was available to act as a panch witness, but the witness did not come forward to act as a panch witness and also refused to disclose his name and went away from the shop of the accused. However, P. W. 1 did not make any further effort to secure any other panch witness to act as a mediator and hence, the appellate Court recorded a finding that section 10 (7) of the Act had not been complied with, which is aserious infirmity, which caused prejudice to the accused. Section 10 of the act deals with powers of Food Inspector. Section 10 of the act deals with powers of Food Inspector. Section 10 (7) of the Act reads as follows: "where the Food Inspector takes any action under clause (a) of subsection (1), sub-section (2), subsection (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 ( 8 ) A Division Bench of this Court in Public prosecutor v. Subamma while dealing with the Section 10 (7) of the Act before and after its amendment in 1965, after discussing the relevant case law, ultimately laid down the following principles:" (22) From the aforesaid discussion, the following principles emerge- (1) The use of words "as far as possible" in sub-section (7) to Section 10 of the Prevention of Food Adulteration act, 1954, applicable to cases prior to 1-3-1965, would show that the procedure laid down in Section 10 (7) of the Act is only directory but not mandatory. (2) The Food Inspectors should follow the procedure laid down under section 10 (7) of the Act as far as possible and in particular, when the witnesses to witness the sale of seizure and attest the panchanama are available. (3) The Food Inspectors have a statutory duty and obligation to call two independent witnesses and make a genuine effort for following the prescribed procedure. If, in spite of the genuine attempt on the pat of the food Inspector, as disclosed from evidence, to follow the prescribed procedure, he failed to secure two witnesses either on account of the non-availability of any witnesses at that time and place of the sale or seizure or due to some other acceptable reasons, the evidence of the Food Inspector and the other material on record will have to be considered as sufficient proof of the seizure or sale of the food articles. (4) The failure or omission to comply with the provision of Section 10 (7) of the Act would not ipso facto vitiate the entire trial entitling the accused for an acquittal on that sole ground. (4) The failure or omission to comply with the provision of Section 10 (7) of the Act would not ipso facto vitiate the entire trial entitling the accused for an acquittal on that sole ground. The effect of the non-compliance of the provisions of Section 10 (7) of the Act in cases where the accused either admits or does not deny the sale or seizure of the food article, would amount to nothing as the evidence of the Food Inspector, if acceptable otherwise, in such circumstances, would be sufficient proof of the sale or seizure. (5) In cases where the accused specifically denies the sale or seizure of the food article and pleads that his signature was taken byforceorthreat or coercion to the panchnama, the evidence of the Food Inspector and the other material on record would have to be scanned and carefully considered as in such circumstances, the Court would certainly require better proof of the facts of sale or seizure and the mere ipse dixit word of the Food Inspector that he was unable to secure the witnesses cannot be accepted. (6) The person or persons required to be called by the Food Inspector as per the provisions of Section 10 (7) of the act must be independent and disinterested mediators but not the food mistries, peons working under the Food Inspector or any subordinate of the department at whose instance the prosecution was launched, as the intention and object of the Legislature to call two or one, as the case may be, such persons to witness the sale or seizure and attest the panchanama was to remove any suspicion or foul play with a view to ensure that no prejudice or injustice would be caused by any overjealous officers against the accused. (7) It is incumbent on the part of the food Inspectors to call only mediators who are independent and disinterested with a view to induce confidence in the fair trial as well as the method or manner in which the procedure has been adopted, and the practice or attempt by the Food inspectors to call their mistries or peons or departmental subordinates should be deprecated though not as a rule of law but as a rule of prudence. (8) The provisions of Section 10 (7) of the Act have been amended with effect from 1-3-1965, by Section 6 (3) of the Act 49 of 1964 by removing the words "as far as possible" and substituting "one or more persons" instead of "not less than two persons" and thereby all controversy with regard to the character or the nature of the provisions, whether mandatory, directory or discretionary has been put an end to. (9) The effect of the amendments made in Section 10 (7) of the Act would clearly disclose the intention of the parliament to make it obligatory on the part of the Food Inspectors to call one or more independent mediators to be present at the time when action under clause (a) of subsection (1), sub-section (2), subsection (4) or sub-section (6) was taken and to take his or their signatures to the panchnama. (10) The amended provisions of subsection (7) to Section 10 of the Act subsequent to 1-3-1965 are mandatory but not discretionary and any omission or failure on the part of the food Inspectors to strictly adhere to or comply with the procedure contemplated therein should be inferred to be prejudicial to the interests of the accused and thereby vitiate the entire trial entitling him to an acquittal of the offence for which he was charged except when the sale or action is not denied. " ( 9 ) IN Ram Labhaya v. Delhi Municipality, it was held at paragraphs 3 and 4, as follows:"great reliance was placed by counsel for the appellant on the circumstance that as required by Section 10 (7) of the act the Food Inspector did not take the sample in the presence of independent persons. It is urged that Section 10 (7) is mandatory and its contravention would vitiate the conviction". Section 10 (7) provides:"where the Food Inspector takes any action under clause (a) of subsection (1), sub-section (2), subsection (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. "there can be no doubt that "one or more persons" must mean one or more independent persons. "there can be no doubt that "one or more persons" must mean one or more independent persons. The legislative history of sub-section (7) further shows that at the least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the sub-section. Prior to its amendment by Act XLIX of 1964, sub-section (7) ran thus:"where the Food Inspector takes any action under clause (a) of subsection (1 ). . . . . . . 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. "by the amendment of 1964, the words "as far as possible" were deleted. This deletion naturally lends plausibility to the contention that the provisions of section 10 (7) are mandatory and it has been so held in Food Inspector, corporation of Calicut v. Vincent, ILR (1966) 2 Ker 551 and Flam Sarup Tara chand v. The State, Alr1965 Punj 366 = (1965 (2)Cri. LJ. 406 ). 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. The facts in the instant case show that the food Inspectordid call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of gujarat, (1971) Supp SCR 53 = ( AIR 1971 SC 1277 = 1971 Cri. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of gujarat, (1971) Supp SCR 53 = ( AIR 1971 SC 1277 = 1971 Cri. L. J. 1075) it was held by this Court after noticing that section 10 (7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the convictions. The Court observed that this ought not to be understood as minimising the need to comply with the salutary provision in minimising the need to comply with the salutary provision in section 10 (7), which was enacted as a safeguard against possible allegations of excesses or unfair practices by the food Inspector. ( 10 ) IN Babulal v. State of Gujaraf, it was held that the provisions of Section 10 (7) of the Act being salutary should be complied with by the Food Inspector. This, however, does not mean that the evidence of the Food inspector who is not an accomplice that he had complied with the requirements to law by calling a panch witness and taking his signature cannot be accepted without corroboration especially when the panch has admitted his signature. ( 11 ) IN the present case, a finding had been recorded by the Appellate Court while appreciating the evidence of P. W. 1. But no doubt P. W. 1 deposed to the effect that at the time of his visit he called a mediator who was readily available to act as a panch witness, but the witness did not come forward to act as a panch witness and refused to disclose his name and went away. From the evidence of p. W. 1 it is clear that he did not make any effort to secure any other panch witness, and in the light of this evidence, a finding had been recorded that it cannot be said that the mandatory provisions of Section 10 (7) of the act had been followed or complied with and the same is a serious infirmity which had caused to prejudice to the accused. This is a finding recorded by the learned Judge on appreciation of the evidence and this being an appeal against an order of acquittal and in view of the fact that the conviction and sentence imposed by the Court of first instance had been set aside by the Appellate court, this Court can definitely appreciate the evidence available on record independently and record a finding in this regard. ( 12 ) ON careful scrutiny of the evidence of p. W. 1, this Court is of the opinion that the said finding recorded by the learned Judge deserves to be confirmed and needs no disturbance at the hands of this Court. Apart from this aspect of the matter, the Appellate court also recorded the other findings that specific question was not put to the accused relating to the contents of the public analyst report under Section 313 Cr. P. C. examination and a further finding had been recorded that p. W. 1 deposed in cross-examination that he had directly taken the sample into three bottles and he had not deposed that the oil contained in the tin was thoroughly stirred before taking samples and in the absence of stirring of the oil contained in the tin before taking samples by the P. W. 1, the very manner in which the samples had been taken, had caused prejudice to the accused. ( 13 ) APART from this aspect and in view of other findings that had been record, this being an appeal against an order of acquittal recorded by the Appellate Court and insasmuch as the Appellate Court on appreciation of the evidence available on ecord recorded clear and specific findings and inasmuch as no illegality or perversity in the recorded findings had been pointed out by the learned Additional Public Prosecutor i the said findings are hereby confirmed. ( 14 ) ACCORDINGLY, the Criminal Appeal shall stand dismissed.