Hon'ble Sudhir Agarwal,J. 1. Heard Sri Santosh Kumar Shukla, learned counsel for the revisionist and learned A.G.A. for respondent-State. 2. This revision, under Section 397/401 Cr.P.C., has arisen from the judgment of IInd Munsif/Judicial Magistrate (Economic Offences), Etawah, dated 08.12.1988, convicting the revisionist under Section 7/16 of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "Act, 1954") and sentencing him three months rigorous imprisonment with fine of Rs. 500/- and in case of default in payment of fine, one month's rigorous imprisonment has also to be served by revisionist. Against the aforesaid judgment the revisionist preferred Criminal Appeal No. 01 of 1989, which has also been dismissed by Lower Appellate Court, i.e., Ist Additional Sessions Judge, Etawah vide judgment dated 24.06.1989. 3. Learned counsel for the revisionist has raised two contentions before this Court. First, that there is no compliance of Section 10(7) of Act, 1954, as no independent witness has signed the sample taken by Food Inspector and, therefore, the entire prosecution is vitiated. Secondly, it is said that there is no compliance of Section 13(2), inasmuch as the test report of Public Analyst was sent to revisionist after prosecution commenced and his request for re-testing has illegally been rejected by Trial Court. 4. Now before examining the aforesaid two issues, the facts, in brief, leading to prosecution of revisionist and his conviction, may be taken note as under. 5. As per the prosecution case, on 28.10.1980 at about 6.00 am the shop of revisionist at Homganj Auriaya Market, District Etawah was inspected by Food Inspector. He found the revisionist selling Azwain and other items. Having suspicion about adulteration he introduced himself to the revisionist and took sample of Azwain by giving notice in Form No. 6, which is Exhibit Ka-1. The Food Inspector purchased 450 Gms. of Azwain after making payment of Rs. 3.60 and receipt of payment, Exhibit Ka-2, was obtained from revisionist. 6. The public witnesses present at the spot did not cooperate and refused to give their names and addresses. This fact was mentioned by Food Inspector on the notice Form No. 6, Exhibit Ka-1 and receipt, Exhibit Ka-2. The sample of Azwain was divided in three parts equally and sealed as per the procedure prescribed in rules, on the spot. The Food Inspector also prepared memorandum Form No. 7, Exhibit Ka-3, at the spot. This fact was mentioned by Food Inspector on the notice Form No. 6, Exhibit Ka-1 and receipt, Exhibit Ka-2. The sample of Azwain was divided in three parts equally and sealed as per the procedure prescribed in rules, on the spot. The Food Inspector also prepared memorandum Form No. 7, Exhibit Ka-3, at the spot. One sample packet was sent by registered parcel to Public Analyst for examination alongwith copy of Form No. 7 and remaining two samples were deposited in the office of Chief Medical Officer, Etawah (hereinafter referred to as the "CMO"). 7. The Public Analyst vide report dated 12.12.1980, (Exhibit Ka-4), found Azwain in sealed packet sent for analysis being adulterated and submitted report accordingly. The CMO thereafter directed Food Inspector to take necessary action and granted sanction. Thereafter complaint was filed before Court on 29.03.1981. The public analysis report sent to accused under Section 13(2) of Act, 1954 by registered post, receipt dated 02.05.1981. The accused appeared before Court on 06.10.1982. It is on 07.10.1988, when the revisionist was proceeding with his defence argument, made an application for re-testing of sample but the same was rejected by Trial Court and thereafter the accused was convicted and sentenced and his appeal has been rejected, as noticed above. 8. From the record it is evident that the signature of revisionist on the payment receipt and sample notice were not disputed. It is thus evident that the Food Inspector has taken sample of adulterated item from the shop of revisionist and on chemical analysis the seized item was found adulterated. 9. Before the courts below issue of non-compliance of Section 10(7) does not appear to have been raised and the same issue has been raised for the first time before this Court. Even thereafter, I have examined the matter and found that an attempt was made by Food Inspector to call for independent witnesses so as to comply the requirement of Section 10(7) but persons present at shop did not come forward and cooperate with him. In absence of any person being ready to witness the procedure of taking sample and seizure, the Food Inspector made a note to this effect and proceeded. Now the only question is, whether this is a sufficient compliance of Section 10(7) of Act, 1954 or not. 10. In absence of any person being ready to witness the procedure of taking sample and seizure, the Food Inspector made a note to this effect and proceeded. Now the only question is, whether this is a sufficient compliance of Section 10(7) of Act, 1954 or not. 10. Section 10(7) of Act, 1954 reads as under: "Section 10(7)- Where the Food Inspector takes any action under clause (1) 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." 11. The objective of Section 10(7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory in so much so that Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that there is any non-compliance of Section 10(7) of Act, 1954. 12. Section 10(7) was amended in 1964 and prior thereto there were words "as far as possible call not less than two persons". The words "as far as possible" were deleted by amendment of 1964. It was sought to be argued, therefore, that deletion means that if the independent witnesses do not corroborate the action of Food Inspector in taking sample etc. it shall vitiate the Trial. 13. A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad Vs. M.V. Alu and another, 1991 Cri.L.J. 2174 considered it and in para 2 of the judgment said that sub-section (7) of Section 10 is only intended as a safeguard to ensure fairness of action taken by Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that Section 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable. 14. In another matter arisen from State of Uttar Pradesh itself, the three Judges Bench of Apex Court had occasion to consider this aspect in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 and in paras 5 and 6 thereof the Court said: "5. 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 Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. 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, AIR 1971 SC 1277 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 conviction. In Babu Lal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 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 conviction. The Court observed that this ought not to be understood as minimizing 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. 6. As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws." 15. From the above it is clear that Apex Court also took the view that what is important to attract Section 10(7) is that the Food Inspector atleast should try to secure presence of one or more independent witness when he take actions under any of the provisions mentioned in Section 10(7). Once that has been done evidence of Food Inspector himself, even if not corroborated by independent witnesses, can be relied if the Trial Court finds it otherwise acceptable and is not to be discarded only for the reason that independent witnesses have not signed the sample and seizure documents. 16. This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika Vs. Mohammad Wasim, 1993 All Criminal Cases 47. Here the Court further said that object of indicating Section 10(7) is to ensure that particular sample is taken from the accused. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample. 17. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample. 17. Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) and it will not vitiate the prosecution at all. Here I am fortified by a decision of Madras High Court in Public Prosecutor Vs. Ramachandran, 1993(1) FAC 93. 18. It is the duty of Food Inspector to call one or more independent persons to be present at the time of taking sample and once that is done by him it is sufficient but if the witnesses are not ready to come forward and sign the documents the Food Inspector cannot compel them and, therefore, where the attempt has been made but failed, lack of signature by independent witness would not vitiate the trial. 19. The Apex Court in State of U.P. Vs. Hanif, AIR 1992 SC 1121 said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. 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. 20. In the present case, I do not find anything from record that any effort was made by revisionist to show or disprove the case of prosecution regarding calling of independent witnesses and their non-cooperation by refusing to give their names and addresses etc. In fact before courts below, as is evident from the judgments, this issue has not been raised at all. The Trial Court on its own has noticed that there is compliance of Section 10(7). In view thereof, the argument that there is no compliance of Section 10(7) has no basis and rejected. 21. Now come to the second question regarding non-compliance of Section 13(2) of Act, 1954. The Trial Court on its own has noticed that there is compliance of Section 10(7). In view thereof, the argument that there is no compliance of Section 10(7) has no basis and rejected. 21. Now come to the second question regarding non-compliance of Section 13(2) of Act, 1954. It reads as under: "Section 13(2)-On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or person that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of report of the copy of report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory." 22. The further procedure in this regard is contained in Rule 9-B of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the "Rules, 1955"). The further procedure in this regard is contained in Rule 9-B of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the "Rules, 1955"). It reads as under: "9-B. Local (Health) Authority to send report to person concerned.--The Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form II delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of article was taken by the Food Inspector and simultaneously also to the person, if any, whose name, address and other particulars has been disclosed under Section 14-A of the Act: Provided that where the sample conforms to the provisions of the Act or the Rules made thereunder, and no prosecution is intended under sub-section (2) or no action is intended under sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14-A of the Act, within 10 days from the receipt of the report from the public analyst." 23. It contemplates sending of copy of analysis report after institution of prosecution against the person from whom article or food was taken, informing him that if so desired he may make an application to the Court for getting the sample of article or food kept with Food Inspector, i.e., Local (Health) Authority, to be analyzed by by Central Food Laboratory. This request can be made by the person facing prosecution within 10 days from the date of receipt of report. 24. In the present case, complaint was filed in Trial Court on 29.03.1981 and report dated 12.12.1980 was forwarded to revisionist by registered post on 02.05.1981. the receipt of registry is exhibit before courts below. The address mentioned in registered receipt was the same which was mentioned on Form No. 6 (Exhibit Ka-1) and payment receipt (Exhibit Ka-2), which were duly signed by revisionist. This is evident from the judgment of Lower Appellate Court. The address mentioned by applicant in his various applications, i.e., resident of Village Nasirabad was the same which was mentioned in registry receipt, whereby report was forwarded to revisionist. This is evident from the judgment of Lower Appellate Court. The address mentioned by applicant in his various applications, i.e., resident of Village Nasirabad was the same which was mentioned in registry receipt, whereby report was forwarded to revisionist. This finding of Lower Appellate Court has not been challenged. 25. The revisionist, therefore, could not prove by any cogent evidence that the registered document was not received by him. He moved application for re-testing after about 7 and half years. Under the statute he was required to seek retesting within 10 days from the date of receipt of report. No reason for extraordinary delay of seven and half years could be explained. 26. In view of above discussion, it is difficult to accept the contention of counsel for revisionist that there is non-compliance of Section 13(2) of Act, 1954. 27. Learned counsel for the revisionist then sought to argue that the punishment is very harsh and it may be reduced. 28. However, I find that punishment imposed upon revisionist is the minimum one as it is prescribed and, therefore, this Court cannot proceed to reduce it further as that would be contrary to specific provision of statute. 29. No other argument has been advanced. 30. The revision, therefore, is devoid of merit. Dismissed. 31. The accused, Ramesh Chandra is on bail. His bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause him to be arrested and lodged in jail to serve out the sentence passed against him. The compliance shall be prepared within two months. 32. Certify this judgment to the lower court immediately. ——————