State vs R. Selvaraj

K.M. Natarajan, J.—The State represented by the Public Prosecutor has preferred this appeal challenging the legality and correctness of the

order of acquittal passed by the Chief Judicial Magistrate, Kumbakonam. The Food Inspector, Kumbakonam Municipality, tiled a complaint

against the respondent under Ss. 7(1), 16(1)(a)(i) read with S. 2(la)(a)(m) of the Prevention of Food Adulteration Act.

The case of the prosecution is that on 28th November, 1931, at about 7.30 a.m. when the Food Inspector was proceeding along the

Pidarikulam road, he noticed the accused seeing milk from the brass vessel tied in cycle carrier. After, enquiring the accused, be was satisfied that

the milk was intended for sale and purchased 750 ml. for Rs. 1.25 and obtained a receipt from the accused. He divided the same into three parts

and poured them into three separate bottles which were dry and clean and tightly packed them as per rules. He sent one of the bottles to the Public

Analyst, Madras. On receipt of the report from the Public Analyst which is to the effect that the sample is deficient in solids not fat to the extent of

at least 44 per cent, the Food Inspector filed a complaint and served notice under S. 13(2) of the Act on the accused. One Thangavelu was

present at the time of purchase of the milk and also preparation of mahazar and other documents. He attested the documents. In support of the

above allegations, besides the Food Inspector examined as P.W. 1 the mahazar witness Thangavelu was examined as P.W. 2 and Exs. P1 to P9

were marked.

When the accused was examined with reference to the incriminating pieces of evidence under S. 313, Crl.P.C., he totally denied the evidence

adduced by the prosecution and one witness was examined on his side. According to D.W.1, the accused is his junior paternal uncle''s son and

that he is doing agricultural work and he was not vending milk. On 24th November, 1981, a child was born to his wife at the E.S.I. hospital and

two days later, he asked the accused to purchase milk for the child. He was informed by the accused that the Food Inspector took sample from

the said milk.

The Magistrate for the reasons assigned in his judgment acquitted the accused mainly on the ground that the provision of S. 10(7) of the Act has

not been complied with. Aggrieved by the same, the State has preferred this appeal.

The learned Government advocate submitted that there has been sufficient compliance with the provisions of S. 10(7) of the Prevention of Food

Adulteration Act and the court below ought to have found the accused guilty under Ss. 7(1), 16(1)(a)(i) read with S. 2(1a)(a)(m) of the Act.

Further, the court below has not given any valid reason for not accepting the evidence of the Food Inspector which is corroborated by documents

admittedly attested by P.W. 2 regarding the taking of the sample.

Let us consider the reasons given by the Court below for acquitting the respondent. According to the learned trial Magistrate, P.W. 2 atte stor

did not support the version of P.W. 1, that P.W. 2 was obliged to a maistry, who is under the control of P.W. 1, and had affixed his signature, that

he was not aware of taking of sample and that in view of the statement of P.W. 2, he is not an independent witness. Further, the prosecution has

not complied with the provision of S.10(7) of the Act, especially when P.W. 1 has not called for other witnesses who were present at the tea shop

of one Thangammal. It has to be noted that the Magistrate has negatived the contention of the accused that the milk was not intended for sale and

that R.13(2) has not been properly followed. In this connection, the learned Government Advocate drew my attention to the provision of S.10(7)

of the Prevention of Food Adulteration Act, and the case-law on the subject by their Lordships of the Supreme Court and this Court. S. 10(7) of

the Prevention of Food Adulteration Act reads as follows

Where the Food Inspector takes any action under S.(a) of Sub-Ss. (1), (2), (4) or (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 Babu Lal Hargovindas Vs. The State of Gujarat, , their Lordships of the Supreme Court held as follows

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.

In a later case reported in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, , the above view was affirmed and it was held

as follows

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 cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite

independent witnesses. In Babulal Harlgovindas v. State of Gujarat 1971 Supp. S.C.R. 53 it was held by this Court after noticing that S.10(7,)

was amended in 1964, that non compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice

bis evidence alone, if believed, can sustain the conviction.

In Public Prosecutor v. Subban Chettiar 1970 M.L.J. (Crl.) 281 K.N. Mudaliyar, J. in an appeal against acquittal for a similar offence, held:

S.134 of the Evidence Act, makes it clear that any fact could be proved even by a single witness. There is a recent trend in cases of this type

(offences under Ss.7(1) and 16(1) read with S.2(1)(a) and (b) of the Prevention of Food Adulteration Act) and similar cases that the attesting

witnesses always turn hostile and by reason of the attesting witnesses turning hostile there is a tendency on the part of the courts below to

disbelieve the evidence of the Food Inspector. This trend is really deplorable and the courts below would do well to keep S.134 in view and then

appreciate the evidence of the Food Inspector of that standard laid down in S.134 of the Evidence Act.

The above view was reiterated by Paul J. in State by Pubic Prosecutor v. Mirtppan 1980 L.W. Crl. 37, In State v. Ramaswami 1983 L.W. (Crl.)

104, Ratnavel Paodian J. held as follows

......the Court below is not justified in rejecting the evidence of P.W. 1, especially when his evidence is corroborated by the documentary evidence,

Exs.P1 to P13.

It is clear from the above provision of S.1(7) that the duty of the Food Inspector is only to call one or more witnesses to be present at the time

when such action is being taken by him and take his or their signatures. The ratio laid down in the above case is on all fours applicable to the facts

of this case. In the instant case, the Food Inspector P.W. 1 called for P.W. 2 and P.W. 2 also admitted having attested the mahazars regarding the

taking of sample and purchase of milk. But the Learned Counsel for the respondent would contend that P.W. 2 attested the mahazars to oblige the

mastery, who was employed under P.W. 1 it has to be noted that if really he was obliged to the maistry of P.W. 1, there is no reason for him to

give evidence contra to the documents to which he has subscribed his signatures and the finding of the court below that he is an independent

witness for accepting his evidence and also rejecting the evidence of P.W. 1 is totally untenable. For reasons best known to him, he has fives

evidence contra to the documents to which be has subscribed his signatures and that he was rightly treated as hostile by the prosecution. There is

absolutely no motive whatsoever suggested against P.W. 1 by the accused for foisting the false case or to dispose of against him. In the absence of

any enmity or motive alleged against P.W. 1, the facts spoken to by P.W. 1 deserve to be accepted. As observed by their Lordships of the

Supreme Court, the prosecution was relieved of its obligation by calling one witness and obtaining his signatures and the Food Inspector cannot

compile the presence of the neighbors From the mere fact that P.W. 2 was treated as hostile, it cannot be said that the prosecution failed to

comply with the provisions of S.0 (7) of the Act. The Court below failed to assess the evidence of P.W. 1 on its intrinsic value, when there is

nothing in P.W. 2 a evidence which would affect its intrinsic value. The Learned Counsel for the respondent is unable to support the reasoning of

the court below but he would contend that the Food Inspector ought to have called the two ladies who were sitting in the nearby tea shop to attest

the mahazars for taking and purchasing samples. As already observed, under S.10(7) of the Act, it is enough if one witness is called to be present

and sign the documents. In the instant case, admittedly P.W. 1 sent for P.W. 2 through his maistry and he was, present and affixed his signatures,

though in evidence he denied having an knowledge of taking the sample. Hence I see no force in the said contention of the respondent. For all

these reasons, I am of view, that the order of acquittal by the court below is erroneous and thoroughly unjustifiable and as such the order has to be

set aside. Accordingly the order of acquittal passed by the court below is set aside and the respondent-accused is convicted under Ss.7(1) , 16(1)

(a)(i) read with S.2(1a)(a)(m) of the Prevention of Food Adulteration Act.

As regards the quantum of sentence, it is submitted by the Learned Counsel for the respondent that since the occurrence took place in the year

1981, about rive years ago, and that the respondent rehabilitated himself, this being a reversion of the order of acquittal, the respondent could be

let off with a fine instead of sending him to prison. Having regard to the facts and circumstances of the case and also the submissions made by the

Learned Counsel for the respondent and since the offence was committed in the year 1981, and five years have elapsed and as it is stated that the

respondent has rehabilitated himself, I feel that the ends of justice would be met by imposing a fine of Rs. 500.

In the result, the appeal is allowed, the respondent-accused is convicted under Ss.7(1), 16(1)(a)(i) read with S.2(1a)(a)(m) of the Prevention

of Food Adulteration Act and sentenced to pay a fine of Rs. 500 (five hundred) in default rigorous imprisonment for three months. Four weeks

time is granted for payment of the fine from the date of receipt of records by the court below.