State of Kerala vs Natesa Gounder and Another

Anna Chandy, J.—This appeal by the State is from the order of acquittal of the respondent in C.C. 163/58 on the file of the District Magistrate of Palghat. The prosecution case is as follows:-

On 30-12-57 at about 10-45 A.M., P.W. 1, the Food Inspector of Palghat, went to the Saraswathi Diary depot and purchased two measures of curd (Dahi). The shop which belongs to the first accused was then in charge of the second accused. P.W. 1 informed the second accused that the curd was for the purpose of sampling and analysis. A written intimation to that effect was given to the second accused and Ext. P1 is the duplicate of that intimation. The second accused as well as P.Ws. 2 and 3, the witnesses who were present at the time of sale, have signed Ext. P1. A price of annas three was paid to the second accused and Ext. P2 receipt was obtained from him. The curd, on analysis, was found to be adulterated with not less than 25% added water and the accused were charged under the Prevention of Food Adulteration Act.

The accused admitted the sale, but maintained that what the second accused sold was not Dahi but only skimmed butter-milk and that the second accused was compelled by P.W. 1 to sign Exts. P1 and P2. They also state that no witnesses were present at the time of the sale and no witnesses signed in the original of Ext. P.1.

The learned District Magistrate found that the prosecution has proved that the accused sold adulterated Dahi, but acquitted the accused on the ground that the mandatory provision of Section 10(7) of the Food Adulteration Act regarding the presence of witnesses during the seizure of the article of food was not complied with.

The correctness of the finding of the lower court that "it therefore follows that not only P.W. 1 has failed to make a sincere attempt to get an independent witness but that really no witnesses signed in the original of Ext. P1 as is required by Sub-Section 7 of Section 10 of the Act" is not contested. But the Public Prosecutor argues that the omission to take the signatures of the witnesses in Ext. P1 is only an irregularity and the whole trial cannot be held vitiated because of this one omission. I am unable to agree with that argument. Such a contention has been specifically rejected in two recent cases reported in In Re: Raju Konar, and State v Mohammed Ibrahim ( 1959 KLT 395-1959 K.L.J. 367). Sub-Section 7 of Section 10 of the Act lays down "Where the Food Inspector takes any action under clause (a) of Sub-Section (1), Sub-Section (2), Sub-Section (4) or Sub-Section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures". The provision is a safeguard against the abuse of the wide powers the Act gives to the Food Inspector in the matter of entry, search and seizure and it is meant to be complied with. The phrase "as far as possible" does not give the Food Inspector power to dispense with the witnesses by just stating that he could not find any. It is meant only to obviate the difficult task of getting the witnesses in cases where the action occurs in isolated places or at times during the day or night when it is not usual to find people walking about. In the present case where the sale took place in a shop in a busy locality and at a busy time when any number of persons would be available to witness the act, the omission to get witness to sign Ext. P1 can only be due to an ignorance of the rule or a cavalier attitude to it. The provision is mandatory and in a case where it is not complied with, the court cannot rightly convict the accused.

In the result, the order of acquittal has only to be upheld. The appeal fails and is dismissed.