Esayaki Konar

Maheswaran, J.—This revision is directed against the judgment of the Second Additional Sessions Judge, Tirunelveli, confirming the judgment of the Chief Judicial Magistrate, Tirunelveli convicting the, revision petitioner, of the offence punishable under S.7(i) read with S.16 (1)(a) (i) and S.2 (ia) and (k) of the Prevention of Food Adulteration Act and sentencing him to rigorous imprisonment for six months and to a fine of Rs. 1000.

P.W. 1 Sundararajan, Food Inspector attached to Tirunelveli Municipality, took a sample of 750 ml. of milk from the revision petitioner on 7-7-1982 at about 7-15 a.m. which the revision petitioner was selling near Kambukadai Street, Tirunelveli, after observing all the formalities. He sealed the milk so purchased in three clean dry bottles and added formalin, a preservative, and then corked them and sent two bottles to the Local (Health) Authority and one to the Public Analyst, Guindy. The report of the Analyst Ex. P6 shows that the sample is deficient in solids-not-fat to the extent of at least 30 per cent. The Food Inspector filed a complaint on 12-8-1982, and then sent a notice under S.13 (2) of the Act with Form No. III separately.

The defence was that the milk was not intended for sale, but was intended for the marriage of D.W.1, who is the brother-in-law of the revision petitioner, and that there was no sale of milk in favour of the Food Inspector. His further contention is that there is no evidence to show that the sample was taken by the Food Inspector.

It cannot be disputed that the milk is adulterated and the report of the Analyst, Ex. P6 shows that the sample was deficient in solids-not-fat to the extent of at least 30 per cent. The contention of the revision petitioner was that the milk was intended for the marriage of his brother-in-law. In fact, the defence has filed Ex. D1, an invitation, and also examined D.W.1, brother-in-law of the revision petitioner, who got married on that day. Both the courts have concurrently found that this invitation Ex. D1 is one got up for the occasion. On that view, the courts below also did not believe the evidence of D.W.1 and came to the conclusion that the invitation is one that was got up at a later occasion.

Mr. I. Subramaniam, Learned Counsel for the revision petitioner, pointed out that it is highly improbable that a marriage invitation should be fabricated for purpose of a case when the contents of the invitation show the time and date of marriage. But, this is purely a question of fact. Both the courts held that this invitation has been fabricated as the invitation does not disclose the name of the printer or the printing press. The Courts below have also pointed out the discrepancy in the evidence of D.W.1 who says that the marriage was on a Thursday and later corrects that it was a Monday and again says that it was on a Thursday. Mr. I. Subramanian, however, pointed Out that it was due to oversight and also contended that the witness has given the correct date of the marriage at first. Whatever that be, sitting in revision, I am unable to differ from the view taken by the courts below that this invitation was a fabricated one.

It is then contended by Mr. I. Subramanian that the provisions of S.10 (7) have not been complied with. S.10 (7) runs thus

Where the Food Inspector takes any action under clause (a) of sub-sec (1), sub-sec (2), sub sec. (4) or sub-sec(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.

In this case, there is no signature of any such witness. But, there is clear evidence of the fact that the Food Inspector P.W. 1, called two Muslim women. He is however unable to furnish their names. In this case, he has called two Muslim ladies, but they have refused to sign the forms. That is quite understandable, for, being women they did not want to involve themselves in the case. In Babu Lal Hargovindas Vs. The State of Gujarat, the Supreme Court pointad out

It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not accomplice, nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under Sec.68 of the Evidence Act to prove the execution of the will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples are taken as required by law

It was also pointed out by the Supreme Court in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, that the obligation which S.10(7) cast on the Food Inspector is to ''call'' one or more persons to be present when he takes action. The Supreme Court further stated that they are 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. In that case, it was found as a fact that the Food Inspector did call for some neighbouring shop keepers to witness the taking of the sample, but none was willing to co-operate. In such circumstances, the prosecution was relieved of the obligation to cite independent witnesses. In this case also, there is the evidence of P.W. 1, that he called the two witnesses who were unwilling to sign in the forms served on the accused. There is no reason to disbelieve the evidence of the Food Inspector. In the said circumstance, it cannot be said that S.10 (7) has been violated.

The third contention is that there has been no sale. It is well-settled that sale to Food Inspector for analysis is ''sale'' within the meaning of S.2 (xiii) of the Act. That contention also should fail. The result is that this revision is dismissed.