Israr Ahmad vs State of Uttaranchal and Others

Servesh Kumar Gupta, J.—This revision is directed against the concurrent finding of the two courts below. Initially the revisionist Israr Ahamad was found guilty by the Additional Chief Judicial Magistrate, Roorkee and vide his judgment and order dated 13.8.1999, he was convicted and sentenced to six months'' rigorous imprisonment in addition to rupees one thousand fine. This sentence was passed for the offence of Section 16(1)(c)(d) of Prevention of Food Adulteration Act (hereinafter referred to as the ''Act''). He was also convicted for the violation of Rule 50 of the Prevention of Food Adulteration Rules (for short, the Rules) and was imposed a fine of Rs. 200/- for the same, in default of payment of this fine of Rs. 200/-, it was directed that the accused will undergo one month''s rigorous imprisonment in addition.

The accused challenged the said order of the Magistrate through appeal No. 42/99, but that appeal failed. So this revision.

What transpires from the facts is, that Food Inspector Shri Rashid Ahmad Hanki along with his two other companions, who were also the Food Inspectors, reached at the shop of the accused revisionist on 27.10.1988, where at about 2.30 pm, the accused was manufacturing Ilaichidana (sweet meat) in a shop with the aid and assistance of 5-6 workers there. This shop of the accused was located in the vicinity of Periyan Kaliyarsharif near Roorkee. On asking, the accused could not show the licence of manufacturing. He was served a notice of taking the sample from the shop, but the accused resisted and did not allow the Food Inspector to take the sample of food product, which he was preparing. When the Food Inspector in exercise of the powers u/s 10 and 11 of the Act himself strived to take sample, he was pushed out with force by the accused person. So the Food Inspector could not take the sample. The accused also threatened the Food Inspector to see him. No nearby shopkeeper or the surrounding person was ready to be a witness of the occurrence. So the Food Inspector feeling helpless made a memo on the spot, which was got signed by his two other companions, named SP Pant and JK Rastogi, both Food Inspectors. This memo is Ex. Ka-2 in the original record of the trial court.

The complaint was submitted by the Food Inspector Shri NS Mathur in the court of Judicial Magistrate through Chief Medical Officer, Saharanpur. In the said complaint, after levelling the charge and recording the evidence of PW1 Rashid Ahmad Hanki, PW2 NS Mathur and PW3 JK Rastogi, the learned Magistrate recorded the conviction as above.

In this revision, the learned Counsel in defence has argued that the prosecution has not complied with the requirement of Section 10(7) of the Act because at the time of taking the sample of any article of food from the shop of the accused, it was mandatory for the Food Inspector to call one or more persons to be present at the time when such action was taken and take his or their signatures. Here this Court while perusing the testimony of the witnesses (Food Inspectors) has noticed that the Food Inspectors gave a call to nearby persons and requested them to be the witnesses of the sampling. None of them was prepared to be a witness in the matter. Even none was ready to disclose one''s name and address. The above provision relied by the learned Counsel envisages that "...he shall call one or more persons to be present...". Obviously, the call was made by the Food Inspector to the persons who were purchasing the food article from the shop, but none was ready. The Act has confined the requirement to the raising of the call by the Food Inspector and not, that by all means, the Food Inspector is bound to make the surrounding persons as witnesses of the occurrence because when nobody is ready to answer the call of the Food Inspector and even they do not disclose their name and address, then Food Inspector cannot force them to be a witness.

Another argument advanced by the learned defence counsel is that the requirement of Section 11(1)(a) of the Act has not been complied with by the Food Inspector. This provision reads as under:

Procedure to be followed by food inspectors.-(1) When a food inspector takes a sample of food for analysis, he shall-

(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed u/s 14A;

On carefully reading of this provision, it can be noticed that this provision too does not apply in the matter in hand because the requirement of giving a notice in writing arises prospective to the taking of sample. When the accused Israr Ahamad retaliated the Food Inspector and did not allow him to take the sample, then giving of notice as envisaged by Section 11(1)(a) of the Act does not arise.

The third and the last argument advanced by the learned Counsel of the defence is that no notice on Form VI as prescribed under Rule 12 of the Act was given to the accused. Here also this Court is of the view that no such notice was required to be given because this Court is of the opinion that in view of the aforesaid circumstances, when the Food Inspector was not permitted to take the sample, then no occasion was there for the Food Inspector to give a notice in Form VI as envisaged in Rule 12 of the Act.

This way, the revision is bereft of any merit and is liable to be dismissed. The revision is accordingly dismissed. Let the record of the court below be remitted back for execution of the sentence as awarded by the trial court and confirmed by the appellate court.