Anwar Hussain vs Nagar Swasthya Adhikari, Agra Nagar Palika and Another

K.N.Sinha, J.—The present criminal revision has been filed against the judgment and order dated 5.2.1986 passed by Sessions Judge, Agra in Criminal Appeal No.200 of 1984 confirming the conviction u/s 7/16 of P.F.A. Act and sentence of six months R.I. with a fine of Rs.1000/- and recorded by order dated 26.7.1984 passed by Judicial Magistrate (E.O.) Agra.

The brief facts giving rise to this revision are that revisionist Anwar Husain had a shop wherein he was selling mustard oil. Food Inspector Sri J.C.Gupta suspected the adulteration and took sample by paying 4.50 paise. The sample of 4.50 gram of mustard oil was divided in three parts. One was sent to Public Analyst, Lucknow in which adulteration was found, hence, after obtaining sanction filed the complaint. The prosecution examined as PW1 Food Inspector Sri J.C.Gupta and Sri Indra Prakash, Sanitary Supervisor as P W2. No independent witness was examined. After recording the statement of accused u/s 313 Cr.P.C. the judgment of conviction was recorded by the Magistrate.

I have perused the said judgment. The total judgment in which the reasoning is said to have been recorded runs into about half page which also does not contain any proper reason. The magistrate noted down the facts that the independent witnesses had not been examined. The case, however, shows absolutely nothing about the public analyst''s report etc. This judgment has been upheld in appeal. The judgment recorded by the Magistrate is not sound nor based on any reasoning.

I have heard learned counsel for the revisionist and learned A.G.A. It was argued that no independent witness was taken and there is no compliance of Section 10(7) of the Prevention of Food Adulteration Act. Section 10(7) of the Prevention of Food Adulteration Act lays down that while taking sample, some independent witness must be there.

The idea underlying in this provision is that the Food Inspector may not act arbitrarily. The Prevention of Food Adulteration Act, 1954 made a provision to call one or more persons to be present, when such sample is taken and take their signature. The Legislature felt its necessity and made amendment on 1.3.1965 for calling of witness and taking of signature. This provision has not been at all followed. The Magistrate bypassed it by mentioning that there are no enmity between the Food Inspector and the revisionist.

It was next submitted by the learned counsel for the revisionist that the report of Public analyst shows a marginal adulteration and that is due to unclean utensil in which the mustard oil was first collected before filling it in the phials.

My attention was invited towards the statement of both the witnesses in which Indra Prakash, PW2, Sanitary Supervisor has stated that the mustard oil was lying in a tin. It was taken out through a pari (instrument to take out the oil or any liquid article). He has also stated that Inspector had not cleaned the Pari and Katora, meaning thereby, the pari through which oil was taken out or the Katora was not clean and the mustard oil put in the said Katora was taken as sample. The Public Analyst report shows a marginal difference in the standard mustard oil and the mustard oil taken in the sample which is clear from the public analyst report itself. It was the duty of the Food Inspector to have cleaned the utensil when filing the sample.

Thus, considering the above situation and assessment of evidence, the conviction of revisionist does not hold good. Consequently, the revision is allowed. The judgment recorded by the Judicial Magistrate in case Crime No.875 of 1980, u/s 7/16 of Prevention of Food Adulteration Act and sentencing him to six months R.I. and fine Rs.1000/- and also the judgment of Sessions Court confirming the sentence are hereby set aside. The revisionist need not surrender. The bond against the revisionist stands discharged.