Lakhan Lal Modak vs The State of Bihar

D.P.S. Choudhary, J.—This revision application is directed against the judgment and order dated 6.2.96, passed by the 2nd Addl. Sessions Judge, Katihar, in Cr. Appeal No. 5/93, dismissing the appeal and confirming the judgment and order dated 8.9.93, assed by the S.D.J.M. Katihar in case No. 4/90, convicting the accused-Petitioner u/s 16(1)(a) of the Prevention of Food Adultration Act and entencing him to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1000/- and in default to pay fine, to undergo rigorous imprisonment for three months.

The brief fact of the prosecution case is that Sri Kaleshwar Pd. Mandal, P.W. 1, Food Inspector of Barsni Block inspected the shop of the accused on 5.3.89 and found that accused was present in the shop and Haldi dust powder and other articles were exposed for sale. He in presence of one Birendra Nath disclosed his identify and gave him notice u/s 11 of the Act to take sample of Haldi dust for the purpose of having it analysed. He then purchased Haldi dust and paid Rs. 40/- and divided the same into three parts and having sealed them separately, one of the sealed part was sent to public analyst. The report of the analyst was received and it was found that the Haldi dust was adulterated. He then obtained consent to prosecute, from the A.C.M.O., Katihar. Thereafter the case was filed in the court of the C.J.M. Katihar, and after cognizance the case proceeded in the court below.

The main contention of the learned lawyer for the Petitioner is that the provisions as contained u/s 10(7) of the Act have not been complied with. The provision reads thus:

Where the Food Inspector takes any action under Clause (a) of Sub-section (1), (2) (3), (4) and 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.

Learned lawyer for the Petitioner submitted that no such witness has turned up in the Court to say that he was present when the Food Inspector took the sample of Haldi Powder from the shop of the accused. In the case of Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, , it has been held by the Apex Court that words "one or more persons" in Section 10(7) must mean one or more independent persons. The Food Inspector ought to try to secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the said Sub-sections, as the provisions of Section 10(7) are mandatory. In view of the decision of the Apex Court, it was submitted on be--half of the Petitioner that there is nothing on the record to show that the Food Inspector complied with this mandatory provision of law and because of noncompliance of this provision, the conviction of the Petitioner is not in accordance with law. In reply, it was submitted by the learned APP that from the evidence of P.W. 1, it appears that he had carried with him one B.N. Ghosh, to the shop of the Petitioner while taking sample of Haldi powder. However, he conceded that this witness has not been examined in the court and the evidence of P.W. 1 has not been corroborated by any independent witness. In view of the decision of the Apex Court as referred above, and the fact that no independent witness has been examined in this case to show that P.W. 1, the Food Inspector had complied with the mandatory provision of Section 10(7) of the Act, I come to the conclusion that the conviction and sentence of the Petitioner is not in accordance with law.

In the result, this revision is allowed and the conviction and sentence of the Petitioner is hereby set aside.