The District Board Darbhanga vs Jhonti Mandal

Yadunath Sharma Singh, J

This appeal is directed against the order dated the 29th June, 1976, passed by Shree S. S. P. Verma, Judicial Magistrate, First Class, Darbhanga, in Case No. 1577 of 1976/ Tr. No. 1036 of 1976, by which the learned Judicial Magistrate has acquitted the accused-respondent of the charge u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act).

The prosecution case, in short, is that on the 22nd December, 1969, Dr. T. N. Jha (P.W. 2) visited the shop of the accused-respondent at Village Nari, Police Station Biraul, District Darbhanga, where he was carrying on business of sale of food articles. Dr. Jha, after disclosing his identity as the Food'' Inspector, informed the accused-respondent that he was purchasing mustard oil for analysis, and 6 Chhataks of mustard oil was purchased, which was poured ''into three bottles, After sealing the bottles, one was given to the accused-respondent, the second was kept by the Food Inspector and the third was sent to the Public Analyst to the Government of Bihar. The report of the Public Analyst showed that the mustard oil sample of the shop of the accused respondent was highly adulterated with linseed oil. After receipt of the report of the Public Analyst, the Food Inspector filed a complaint on the 29th July, 1970, against the Food Inspector filed a complaint on the 29th July, 1970, against the accused-respondent before the Subdivisional Magistrate, Darbhanga, who took cognizance of the case and transferred the same to the file'' of another Magistrate for disposal,

The prosecution had examined two witnesses. P.W. 1 was the driver of the Food Inspector, and P.W. 2 was the Food Inspector himself. After examination of the two witnesses the case of the prosecution was closed and the learned Magistrate acquitted the accused-respondent, by his order dated the 29th June, 1976, as already stated.

The main defence of the accused is that he did not sell the mustard oil and that he had brought the sample of oil, from the stock which was kept for his domestic use.

Learned Judicial Magistrate, though held in effect that the prosecution has proved its case beyond all reasonable doubt, has acquitted the accused-respondent solely on the ground of failure of the Food Inspector to discharge his obligations u/s 10(7) of the Act, because the Food Inspector failed to call one or more persons to be present at the time when he took action, and take his or their signatures. Being aggrieved by the order of acquittal, the complainant-appellant preferred an application for grant of special leave to appeal, in S. L.A. No. 268 of 1976, which was granted by this Court, and, accordingly this appeal was filed and admitted.

Learned Counsel appearing on behalf of the appellant has submitted that on evidence, the learned Judicial magistrate has held that the prosecution has proved its case beyond all reasonable doubt, and the acquittal of the accused-respondent is only on the ground that the mandatory provisions u/s 10(7) of the Act had not been complied with. The relevant provision of Section 10 of the Act are quoted herein below:

(7) 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 call one or more persons to be present at the time when such action is taken and take his or their signatures.

In this connection, learned Counsel appearing for the appellant has also cited a decision of the Supreme Court in the case, of Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, . where, in an identical case, the Supreme Court has held that the only obligation on the part of the Food Inspector is to make an attempt to secure an independent witness at the time of taking sample. Here, in the instant case, the Food Inspector has deposed that there were 10 to 15 persons present at the time he took sample, and the Food Inspector tried his best to secure the signatures of the persons standing near the shop, to witness the taking of the sample, but none was willing to co-operate and hence he could not compel them to come and depose in favour of the prosecution.

In the case of Parmeshwar Sao v. The State 1975 B. B. C. J. 621., cited in the judgment of the learned Magistrate, the Food Inspector, admittedly, did not call any independent person to witness the taking of the sample. In the instant case, the Food Inspector (P.W. 2) has asserted that he had attempted to call independent witnesses at the time of taking of the sample, but they were not willing to co- operate. In such a situation, according to the decision of the Supreme Court, the mandatory obligation on the part of the Food Inspector stood complied and the prosecution on this ground will not be vitiated.

Since the accused-respondent has been acquitted only on the ground of non-compliance of the mandatory provision of Section 10(7) of the Act, and, otherwise the learned Judicial Magistrate has found the case of the prosecution proved against the accused-respondent beyond all reasonable doubt. I feel inclined to interfere and set aside the order of acquittal. Accordingly, the accused-respondent is convicted of the charge u/s 16(1)(a)(i) of the Act and he is sentenced to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for six months.

The appeal is allowed.