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2009 DIGILAW 1630 (ALL)

NAGAR SWASTHYA ADHIKARI, AGRA v. PHOOLI SINGH

2009-04-22

SHRI KANT TRIPATHI

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JUDGMENT Hon’ble Shri Kant Tripathi, J.—None is present for the appellant to press the appeal. The name of Mr. S. Mohan, Advocate has been printed in the cause list as appellant’s counsel but he did not turn up to argue the appeal for the appellant. 2. Heard learned A.G.A. for the opposite party No. 2. None is also present for the opposite party No. 1. 3. The instant appeal has been preferred against the acquittal order dated 14.9.1979 recorded by Sri N.K. Sharma, the then Additional Chief Judicial Magistrate, Agra in case 2621 of 1977 (Nagar Swasthya Adhikari v. Phooli Singh) whereby the learned Magistrate acquitted the opposite party No. 1 under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) mainly on the ground that there was no compliance of the provisions of Section 10 (7) of the Act. 4. It appears that on 9.3.1975 at about 10 A.M. the concerned Food Inspector found the opposite party No. 1 selling cow-milk within the limits of Nagar Mahapalika, Agra. The Food Inspector took a sample of cow-milk from the opposite party No. 1, Phooli Singh and sealed the same in three different containers after making due compliance of the rules and also prepared relevant papers on spot. The Food Inspector sent the sample to the public analyst for analysis. The public analyst found the sample of cow milk adulterated as non-fatty solid contents was deficient by about 16 per cent. The Food Inspector, on receiving the report of the public analyst, obtained sanction of the Nagar Swastha Adhikari, Agra for prosecuting the opposite party No. 1 and filed a complaint in the Court of the concerned Magistrate. 5. The opposite party No. 1 was charged under Section 7/16 of the Act. He denied the charge and claimed to be tried. 6. The concerned Food Inspector died before he could be examined as a prosecution witness during trial. One Sri Mangal Sen was examined as prosecution witness who supported the prosecution story and stated that the Food Inspector took sample of cow milk from the opposite party No. 1 and prepared the documents, Exhibit Ka-1 to Exhibit Ka-4. 7. 6. The concerned Food Inspector died before he could be examined as a prosecution witness during trial. One Sri Mangal Sen was examined as prosecution witness who supported the prosecution story and stated that the Food Inspector took sample of cow milk from the opposite party No. 1 and prepared the documents, Exhibit Ka-1 to Exhibit Ka-4. 7. The learned Magistrate recorded the finding that there was solitary statement of the prosecution witness, Mangal Sen, who was a sanitary supervisor and was present at the time of collection of sample of cow milk. The learned Magistrate further held that no effort was made to call public witnesses at the time of collection of sample and as such the provisions of Section 10 (7) of the Act were not complied with. The learned Magistrate further held that the sole witness Mangal Sen admitted during cross-examination that he had not called any person although there was an abadi nearby. The learned Magistrate disbelieved the endorsement made by the concerned Food Inspector on the report Exhibit K-3 that no one was ready to be an independent witness on the ground that the endorsement was made in the hand writing of the Food Inspector who could not be examined due to his death and, as such, the accused could not get any opportunity to test the correctness of the endorsement. In view of these reasons, the learned Magistrate arrived at the conclusion that there was no compliance of Section 10 (7) of the Act at the time of collection of sample. The opposite party No. 1 was, therefore, entitled to be acquitted. 8. Section 10 (7) of the Act provides that 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. This provision seems to be mandatory in nature. What is contemplated by Section 10 (7) of the said Act is that the Food Inspector while taking action for taking sample of any food must call one or more persons to be present at that time. This provision seems to be mandatory in nature. What is contemplated by Section 10 (7) of the said Act is that the Food Inspector while taking action for taking sample of any food must call one or more persons to be present at that time. If the Food Inspector makes attempt to call one or more persons at the time of taking sample and the persons so called by him shows their unwillingness to be witnesses, the Food Inspector cannot be blamed in such situation and it will be deemed that the Food Inspector has made sufficient compliance of Section 10 (7) of the Act. But where the Food Inspector does not make any such attempt, it would amount to violation of the mandatory provisions of Section 10 (7) of the Act. Section 10 (7) of the Act seems to have significance due to the reason that the proceedings done by the Food Inspector may get authenticity during trial and the prosecution version may be believed. In absence of due compliance of the provisions of Section 10 (7) of the Act a valid conviction cannot be recorded against the accused, especially when the accused denies the factum of taking of sample by the Food Inspector. 9. The learned AGA submitted that the learned Magistrate has not considered the case on merit and acquitted the appellant merely on the ground of non-compliance of Section 10 (7) of the Act. The acquittal recorded by the learned Magistrate was not proper. In my opinion the views recorded by the learned Magistrate were based on proper appraisal of evidence. If some other view is also possible on reappraisal of evidence, the order of acquittal cannot be set aside. In that event, the appellate Court has to approve the views of the trial Court and dismiss the appeal. In the case of State of U.P. v. Punni and others, (2002) 1 SCC (Cri) 372, the Supreme Court has held that if two views are reasonably possible, the appellate Court would not normally interfere with the order of acquittal. 10. In view of the peculiar situation of the case, the order of acquittal based on non-compliance of Section 10(7) of the Act cannot be upset on the lines suggested by the A.G.A. 11. For the reasons discussed above, the appeal has no merit. It is accordingly dismissed. ————