Lekh Singh vs The State

Man Mohan Singh Gujral, J.—Lekh Singh petitioner was sentenced to six months rigorous imprisonment and a fine of Rs. 1000/- by the Chief Judical Magistrate, Ambala vide order dated 10th February, 1969 for his having contravened the provisions of Section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954. Appeal of the petitioner before the Sessions Judge, Ambala also failed but the sentence was reduced to four months rigorous imprisonment and fine of Rs. 500/- by an order dated 12th May, 1969. The accused has come up in revision to this Court.

The case of the prosecution is that on 21st of May, 1965 Shri Gurdial Singh, Food Inspector stopped the appellant while he was carrying 25 Kilograms of cow''s milk in a cane for sale and after he served him with a notice, Exhibit P.A. purchased 660 mililiters of cow''s milk on payment of 60 paise as price vide Exhibit ''P.B.''. This sample was divided into three equal parts and each part was put in a dry clean bottle. Sixteen drops of formalin were added as a preservative to each of the bottles and the bottles were then sealed and labeled. One of the bottles was given to the accused while the second was sent to the Public Analyst and the third one was retained in the office by the Food Inspector. When the report of the Public Analyst was received it indicated that the sample of milk was adulterated and in view of this report a complaint was filed against the accused on the basis of which he was tried, convicted, and sentenced as above.

When examined at the trial the accused denied the allegation and stated that he has been falsely implicated and that no sample had been taken. Regarding the thumb impressions on documents, his explanation was that he has been forced to put the thumb impressions

To establish its case against the petitioner the prosecution produced Shri Gurdial Singh, Food Inspector (P.W. 1), Chamba Ram (P.W. 2) and Shankar Dass (P.W. 3) as witnesses of the fact that sample of cow''s milk was taken from the accused and was then properly sealed after the milk had been put into three bottles and for mahn had been added. Out of these witnesses Chamta Ram did not support the prosecution case. Finding evidence of the food Inspector Shri Gurdial Singh and that of Shankar Dass to the worth of credence the learned trial Court convicted and sentenced him. While canvassing that the evidence of Shri Gurdial Singh and Shankar Dass be not accepted it was pointed out by the Learned Counsel for the petitioner that Shankar Dass was a peon of the Food inspector and his evidence was not worthy of credence, and that conviction should not be based on the testimony of these witnesses alone especially when the only independent witness Shri Chamba Ram had not supported the case of the prosecution. It was also canvassed before me that the complaint having been lodged after a considerable delay the petitioner was deprived of the right to have the sample tested from the Director of the Central Food Laboratory and that the denial of this right on account of the conduct of the prosecution so seriously prejudiced the petitioner that it would not be proper to uphold the conviction making the report of the Public Analyst as the basis of the finding that the milk was adulterated.

Before dealing with the sufficiency or otherwise of the evidence in support of the prosecution case I would like to consider the second argument raised on behalf of the petitioner which relates to the delay in launching the prosecution. Support for this argument is sought from the following observations of their Lordships of the Supreme Court in Municipal Corporation of Delhi Vs. Ghisa Ram, .

When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, e.g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst even though that report continues to be evidence in the case of the facts contained therein.

The principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.

The above observations were made in a case where the prosecution had been launched after a lapse of about 8 months with the result that the sample retained by the accused in that case was found by the Central Food Laboratory to have become highly decomposed and not fit for analysis. In the present case the situation is entirely different as at no stage was any request made on behalf of the petitioner that the bottle containing sample which was given to him be sent for analysis by the Director Central Food Laboratory. There was, therefore, no occasion for the prosecution to have denied the right of having the sample analysed by the Director Central Food Laborator, to the petitioner and the above observations are therefore not applicable to the present case. For this view I find support from the following observations made in Ghisa Ram''s case (supra):

There can be no doubt that Sub-section (2) of Section 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboritory and to obtain a certificate from him on the basis of the analysis of that sample. It is when the accused exercises this right that a certificate to be given by the Director of the Central Food Laborator and that certificate then has supersedes the report given by the Public Analyst. If, an any case the accused does not choose to exercise this right the case against him can be decided on the basis of the report of the Public Analyst.

The above observations clearly support the view that if the accused does not choose to exercise his right the case against him has to be decided on the basis of the report of Public Analyst as that report continues to be evidence of the facts stated therein, there being no certificate issued by the Director of the Central Food Laboratory to supersede that report, this argument raised on behalf of the petitioner the refore, fails.

As observed earlier the case against the petitioner rests entirely on the testimony of the Food Inspector Shri Gurdial Singh and his peon Shri Shankar Dass. It is no doubt true that the evidence of these witnesses cannot be discarded merely because of their official status or connection with the agency responsible for prosecuting the accused but prudence requires that the action of the Food Inspector on which the charge rests should be such so as to inspire confidence at the trial. The requirement of calling persons to witness the action of the Food Inspector is to ensure fairness of the action. The very fact that the law enjoins that the sample be taken in the presence of at least one person clearly contemplates that the evidence relating to the taking of the sample must be above board. From this it would further follow that, but for exceptional circumstances, as a matter of prudence the evidence of the Food Inspector alone may not be considered sufficient. Not only that, it has been repeatedly laid down that persons who are called to witness the taking of the sample should not only be independent but also disinterested and not susceptible to influence of the Food Inspector. It is essential then that the witnesses concerned must be persons unconnected with trade in articles of food. If any authority is needed the following observations in Petta alias Pattabi Vs. The Food Inspector and Another, , be read with advantage:

Prudence requires that the action of the Food Inspector on which the charge rests should be such as to inspire confidence in Court. The requirement of calling persons to witness the action of the Food Inspector is to assure fairness in the action. The persons called must be independent and disinterested, and not susceptible to influence of the Food Inspector. It is essential then that the witnesses concerned must be persons unconnected with trade in articles of food.

It is a matter of common experience that persons who are concerned with the agency responsible for launching prosecution under the Prevention of Food Adulteration Act or under other similar provisions are generally over zealous in the performance of their duties and this anxiety on their part to bring the culprits to book makes them lose the character of indepedent and reliable witnesses, and tars them with the taint of partisan witnesses. It is for this reason that as a matter of prudence it is not considered safe to accept the evidence of such witnesses without independent corroboration. In the present case another infirmity attaches to the evidence of the official witnesses namely that the non-official witnesss in whose presence simple is alleged to have been taken has not supported the evidence of the Food Inspector and his peon. It may further be noticed that the statement of Shankar Dass does not inspire confidence as it seems vague and indefinite. According to him the sample had been taken some 3-4 years back. He has not given the date on which the sample was taken, and has not even stated as to whether Chamba Ram had signed the documents which were prepared at that time. Farther-more,'' it was admitted by him that he was normally present with the Food Inspector when the samples were taken and generally was cited as a witness in such cases. He is, therefore, not only an official witness but seems to be a stock witness of the Food Department and it would be wholly unsafe to act on his testimony.

On behalf of the State reliance was placed on Tilak Raj v. The State 1968 Curr. L.J. 656, in which case the evidence of the Government Food Inspector was found sufficient for conviction. In my opinion this case does not support the argument that in every case the evidence of the Food Inspector should be considered sufficient for finding the charge proved against the accused. It may be pointed out that there is no bar in law to the evidence of the Food Inspector alone being accepted and acted upon and it is only as a matter of prudence and caution that Courts generally refuse to act on such testimony unless it stands corroborated by some independent evidence. In exceptional circumstance the evidence of the Food Inspector alone can be considered worthy of credence after taking into consideration the peculiar circumstances of that case. Merely because in Tilak Raj''s case (supra) the Courts found no reason to discard the evidence of the Food Inspector it cannot be inferred that no taint attaches to his testimony, In a particular case, however, even after taking into account this taint the Courts may consider it safe to act upon the testimony of the witnesses like the Food Inspector and the conviction would not be illegal on that account. On the other hand if the circumstances show that independent evidence is available or was produced but has not supported the case or that effort was made to only associate interested witnesses it would be a fit case not to act on the testimony of the Food Inspector.

On account of the foregoing reasons I find that the case against the petitioner has not been proved beyond reasonable doubt. I, therefore, accept this revision petition and set aside the conviction and sentence and acquit him. Fine if paid shall be refunded to the petitioner and his bail bond shall stand discharged.