Karumbayiram vs The Food Inspector, Thiruvaiyaru

Maheswaran, J.—The revision petitioner has been convicted of an offence under S.7(1), 16(1)(a) read with 2(1)(a)(m) of the Prevention of

Food Adulteration Act by the Sub Divisional Judicial Magistrate, Thanjavur and has been sentenced to undergo imprisonment for three months and

to pay a fine of Rs. 500/-. On appeal the conviction and sentence were confirmed by the Sessions Judge, Thanjavur.

The facts are: on 25th September, 1976 at about 9.15 A.M. P.W.1, the Food Inspector of Thiruvaiyar Panchayat purchased 660 ml. of milk

from the petitioner, who brought the milk for sale. Ex. P.2 is the receipt for the same. P.W.1, divided the samples into three parts, one was sent to

the Analyst. From Ex. P4, the report of the Analyst it is seen that the milk was deficient in solids not fat to the extent of 31%. P.W.1 then laid the

charge sheet.

The defence was that the milk was taken by the petitioner for his own use. The only point urged before me in this revision is that P.W.1, the

Food Inspector has not complied with the provisions of S. 10(7) of the Prevention of Food Adulteration Act (hereinafter called the Act) and

therefore the conviction cannot be sustained. S.10(7) provides that if the Food Inspector takes any action under clause (a) of sub-S.(1), sub-S.(2),

sub-S.(4), or sub-S.(6), he shall call one or more persons to be present at the time when such action is taken and take his or their signature. What

the learned counsel points out is that the food inspector has not observed the salient safeguard provided in S.10(7), namely, the sample was not

taken in the presence of one or more persons. In support of this contention he relied on the ruling in Shri Ram Labhaya Vs. Municipal Corporation

of Delhi and Another, . That was a case where the Food Inspector was unable to secure the presence of independent witnesses, and was

therefore, driven to take sample in the presence of the members of the staff only. Under those circumstances, the Supreme Court observed:

We are of the opinion, particularly in view of the legislative history of S 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 S.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 shop-keepers to witness the taking of the sample

but no one was willing to co-operate. He could not certainly compel their presence. In such circumstances the prosecution was relieved of its

obligation to site independent witnesses.

In Babu Lal Hargovindas Vs. The State of Gujarat, their Lordship of the Supreme Court observed thus:

It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an 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 S.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 were taken as required by

law. At the most courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say

that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food

Inspector and what in the opinion of the court is the value of his testimony. The provisions of S.10(7) are akin to those under S.103 of the Crl.

P.C. when the premises of a citizen are searched by the police. These provisions are enacted to safeguard against any possible allegations of

excesses or resort to unfair means either by the police officers or by the Food Inspectors under the Act. This being the object it is ""in the interests

of the prosecuting authorities concerned to comply with the provisions of the Act, the noncompliance of which may in some cases result in their

testimony being rejected. While this is so, we are not to be understood as in any way minimising the need to comply with the aforesaid salutary

provisions.

Their Lordships, however, saw ""no justification in the allegation that the provisions have not been complied with because the Panch witness had

been called and his signatures were taken"". On the facts of that case it was held that the Food Inspector had complied with the requirements and

that the samples were seized in the presence of the Panch witness whose signatures were taken in the presence of the accused.

Such, however, is not the case here. In the present case there is no evidence at all that the Food Inspector called for any one or more persons

to be present at the time when he took action. There is no evidence whether he called any person to witness and whether that person refused to

attest. When there is a statutory duty imposed on the Food Inspector to comply with the provisions of S.10(7) of the Act, it would be for the

prosecution to satisfy the Court that it is not on account of any desire to circumvent the provisions of S. 10(7) but due to the non-availability of

witnesses or some such cause. Such evidence is clearly wanting in this case. The offence of food adulteration carries a drastic sentence of

imprisonment and a fine not less than Rs. 4,000/-, and it is therefore all the more important that the safeguards provided under S.10(7) are strictly

observed so as to assure impartiality about the detection of such offence. In Babu Lal Hargovindas Vs. The State of Gujarat, the Food Inspector

had complied with the provision of law by calling a Panch witness and the Panch witness admitted his signatures. In Shri Ram Labhaya Vs.

Municipal Corporation of Delhi and Another, the Food Inspector called the neighbouring shop keepers to witness the taking of samples but the

witnesses were unwilling to co-operate. In the present ease however, we find that the sample was taken by the Food Inspector at about 9.15

A.M. in a street of Thiruvayaru and there must have been some persons present near about. But the Food Inspector has not called any person to

witness the taking of sample. Therefore, the Food Inspector has not observed the provisions of S.10(7) by calling a person or persons to witness

the taking of sample. There has been, therefore, a violation of the procedure prescribed by law and for that reason the conviction of the petitioner

cannot be sustained. The revision is allowed, and the conviction and sentence are set aside. The fine, if collected, shall be refunded.