The State of Assam vs Sri Sumermal Jain

B.P. Saraf, J.—The appeal has been filed by the State against the appellate order acquittal dated 23.6.81 passed by the Sessions Judge, Kamrup, Gauhati in Criminal Appeal No. 26(K-4)79.

The facts of the case which are in a narrow compass may be (sic) stated thus. On 19.7.1977, the Area Food Inspector of Gauhati visited the shop of the accused Sumermal Jain and took sample of (sic) kept for sale in the shop. The sample was forwarded to the public Analyst for examination and report. The Public Analyst, who examined the sample, found the same as adulterated and submitted his report accordingly. On the basis of his report the Food Inspector, after obtaining necessary sanction, filed a complaint in the Court of the Chief Judicial Magistrate, Kamrup, Gauhati u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter ''the Act''). The accused pleaded not guilty.

The following contentions were advanced on behalf of the accused person : (1) that the mandatory requirement of Sub-rule (3) of Rule 7 of the Prevention of Food Adulteration Rules, 1955 (herein-after ''the Rules'') were not complied with, inasmuch as though the sample was received by the Public Analyst on 20.7.77 the report was delivered to the Public Authority only on 27.10.77, much after the expiry of the period of 45 days specified in the said Rule. (2) That (sic) independent witnesses were called by the Food Inspector at the time of taking the sample is required by Section 10(7) of the Act and as a result of non-Compliance of this requirement the evidence of the food Inspector was not admissible and the entire trial was vitiated. (3) That cash memo produced in support of purchase of ghee amounted to warranty and he was entitled to benefit thereof. (4) that the ghee in question was kept only "for puja and for use in graveyard" and not for human consumption.

The learned Chief Judicial Magistrate rejected all the aforesaid contentious. He held that Rule 7(1) and Section 10(7) were directory and non-compliance with the requirement thereof would not vitiate the trial. No decision was given on the contention based on the cash memo being an warranty. The last contention was also turned down. The learned Chief Judicial Magistrate held the accused-guilty and sentenced him to simple imprisonment for six months and to pay a line of Rs. 1000/- in default, to further imprisonment for three months.

An appeal was filed against the aforesaid order of conviction before the learned Sessions Judge, Kamrup, Gauhati. The learned Sessions Judge held the requirement of Rule 7(3) of the Rules and Section 10(7) of the Act as mandatory. It was held that there was clear contravention of Rule 7(3). It was also observed that as no effort was made in the instant case to satisfy the Court that a genuine attempt was made to procure independent witnesses, Section 10(7) was contravened and the accused person was entitled to benefit of doubt. The learned Sessions Judge also uphold the contention of the accused claiming benefit of warranty on the basis of the cash memo. The learned Judge, accordingly, by his impugned judgment dtd. 23.6.81 set aside: the conviction and sentence and acquitted the accused Against this judgment, the State has filed the present appeal.

Mr. B.B. Narzary, learned Public Prosecutor submits that the findings arrived at by the learned Sessions Judge in regard to the mandatory nature of Rule 7(3) and Section 10(7) are not correct. These provisions, according to him, are directory and non-compliance there with would not justify acquittal of the accused on the benefit of doubt. He also submits that the cash memo in the instant case could not be considered as warranty. According to him, the order of acquittal is wrong and liable to be set aside.

The first two questions raised in this appeal are very important. There is also a divergence of opinion between the different High Court on the point whether Rule 7(3) and Section 10(7) of the Act are directory or mandatory. So far as Rule 7(3) is concerned the question whether it a mandatory or directory has been considered by me at length in Govt. Criminal Appeal No. 40/83 State of Assam v. Nathmal Goenka and Anr. decided on 4-4-90 since reported in (1990) 2 GLR 34 wherein I have held that it is mandatory and non-compliance with the requirement thereof would be fatal to the prosecution. It is therefore, not necessary to deal with the same afresh. The admitted position in the instant case is that the requirement of Rule 7(3) was violated and the report of analysis was delivered to the Local (Health) Authority much after the expiry of the statutory period. As such, the learned appellate Court was justified setting aside the conviction and acquitting the accused person on that account.

I may now deal with the next ground of acquittal that is Violation of Section 10(7) of the Act. The contention is that the Food Inspector did not call one or more independent persons to be present at the time of taking the sample which is a mandatory requirement of Section 10(7) of the Act. Section 10 deals with the power of the food Inspector in the matter of taking sample, of articles of food for analysis. Sub-section (7) thereof provides:

(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 as the time when such action is taken and take his or their signatures.

This provision came up for interpretation before the Supreme Court in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another, wherein on Consideration of the language of this provision in the background of its legislative history, it was observed that there could be no doubt that "one or more persons" must mean one or more independent persons. It was held:

We are of the opinion, particularly in view of the legislative history of Section, 10(7), that while raking action under any of the provisions mentioned in the sub-section, the Food Inspector must call one or more independent persons to present at the time when such action is taken.

The Supreme Court, however, did not agree with the general proposition that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial conviction. On the facts of that case, it was observed.

The obligation which Section 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 neighboring shop-keepers to witness the taking of the sample but none was willing to co-operate. Ho could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.

The Supreme Court also referred to its earlier decision in Mansoor and Others Vs. State of Madhya Pradesh, wherein it was held that non-compliance with Section 10(7) would not vitiate the trial and since the Food inspector was not in the position of an accomplice his evidence, alone, if believed, can sustain the conviction. Referring to the object and purpose of Section 10(7), it was observed in Babulal Hagovindas Supra:

These provision are enacted to safeguard against any possible allegations of excesses or resort to unfair means either by the police Officers or by the Food Inspectors under the Act This being the object it is in the interests of the prosecuting authorities concerned to comply with the provisions of the Act, the non-compliance of which may in some cases result in their testimony being rejected. While this is so we are not to be under stood as in any way minimising the need to comply with the aforesaid salutary provisions.

(Emphasis supplied)

Front these observations of the Supreme Court it Is clear that the object of Section 10(7) is safeguarding the interest of the person from whom the sample is taken by the Food Inspector for analysis. The object of the legislature in this matter appears to be that the Courts may not have to rely solely on the evidence of the Food Inspector but may have also the statements and evidence of independent and impartial persons as to the taking of the sample and the circumstances under which it was taken. It is intended to obtain as reliable evidence as possible and exclude the possibility of any concotion or malpractice of any kind. It is manifest that the object of this provision would be defeated if the Inspector while visiting the shop carried with him his own peon or any other subordinate to witness the taken of the sample and takes the sample in his presence even with out "calling" an independent witness. From reading of Section 10(7) of the Act, it is clear that the provision is mandatory in so far as relates to the duty of the Food Inspector to "call" one or more independent persons to be present at the time of taking the sample etc. Therefore, the minimum that he has to do is to satisfy the Court that all sincere efforts had been made by him to secure the (sic) of one or more independent witnesses and if he fails to do so, that Court would be careful, cautious and circumspect in dealing with his evidence in regard to the taking of sample etc. The requirement of calling one or more independent witness is not an idle formed but an important safeguard to the citizens. This salutary requirement should be faithfully complied with. It must be remembered that though non-compliance with this requirement might not affect the legality of the action as such, it would have a serious effect on the weight of the evidence. It may weaken and sometimes even destory the evidence.

From a perusal of the appellate order in the instant case, it appears that the learned appellate Court examined the effect of non-compliance of the requirement of Section 10(7) of the Act in the correct perspective when it observed. "The point is whether any effort was made to satisfy the Court that a genuine attempt was made to procure independent witness". The appellate Court arrived at a finding that in the absence of any record there was a doubt whether any effort was so made. The Court, therefore, did not give due weight to the evidence of the Food Inspector and gave the accused the benefit of doubt and acquitted him. In my opinion, in view of the facts and circumstances of the case, the learned appellate Court arrived at a correct conclusion and there is no reason to interfere with the same.

It appears, therefore, that on both the counts, namely, noncompliance of mandatory requirement of Rule 7(3) of the Rules and violation of the safeguard u/s 10(7) of the Act, the learned appellate Court was right in its conclusion and, accordingly, justified in acquitting the accused person. In that view of the matter, I do not Bad it necessary to deal with the other points.

The order of acquittal is therefore, affirmed and the appeal is dismissed.