(1.) THE accused, convicted and sentenced for an offence punishable under S. I6 (i) (a) (i) of the prevention of Food Adulteration Act, 1954, for short the Act, is the revision petitioner. THE prosecution case was that the sample taken by pw. 2, the Food inspector, from out of the milk carried by the petitioner to pw. 3, the hotelier, was found adulterated. Before the trial court and also before the appellate court the petitioner unsuccessfully pleaded that pw. 3 who is alleged to have witnessed the taking of the sample by pw. 2 was not really an independent person competent to a witness to the action be taken by pw. 2. In this Court the submission made by the counsel for the petitioner is that the courts below did not bear in mind the true spirit of the provision contained in s. 10 (7) of the Act as interpreted by the Supreme Court in Ram Labhaya v. Delhi municipality (AIR. 1974 SC. 789 ).
(2.) THE defence put forward by the petitioner before the trial court, inter alia, was that the sample was not taken but of the milk he had taken to pw. 3 for sale, but from the bulk of the milk collected by pw. 3 in a vessel which included milk purchased by him from other persons also. pw. 2 the Food Inspector maintained that the sample was taken from out of the milk carried by the petitioner to pw. 3 for sale, and had also denied the suggestion that it was taken out of the bulk of the milk collected by pw. 3 from various persons.
The question that falls for decision in this revision is whether the prosecution is bad for want of strict compliance of the mandatory provision contained in S. 10 (7) of the Act which requires that the food Inspector shall call one or more independent persons to witness the action taken by him. Besides pw. 2 the other witnesses examined in court are pws. 1 and 3. pw. 1 was a formal witness in as much as he was examined only to prove the fact of filing the complaint in court. pw. 3, as has already been found, is the hotelier, to whom, according to the prosecution, the petitioner had carried the milk for sale. pw. 3 in court did not support the prosecution and was, therefore, declared hostile and cross-examined.
The counsel for the petitioner submitted that pw. 3 was really an interested person, he being a purchaser of milk expecting cent percent purity thereof, and he must have felt annoyed and aggrieved at the conduct of the petitioner when he knew that the milk that was being supplied to him was adulterated. He would have been, therefore, naturally interested in securing the conviction of the petitioner, and such a person is not a competent person to witness the action of taking sample by pw. 2 from the petitioner for the purpose of analysis. He also submitted that prudence required exclusion of pw. 3 from the category of independent persons competent to witness the action of taking sample by pw. 2, particularly in view of the fact that the presence of others who had been there for taking tea is admitted.
(3.) BESIDES the decision of the Supreme Court in Ram labhaya v. Delhi Municipality (AIR 1974 SC. 789), already referred to, the counsel for the petitioner cited the decisions of this Court in Subramaniam chettiar v. Food Inspector, Palghat Municipality (1966 KLT. 788) and Food inspector, Calicut Corporation v. Padmanabhan Nair (1967 KLT. 825), the decision of the Punjab High Court in Ram Sarup v. The State (AIR. 1965 Punjab 366), the decision of the Allahabad High Court in B Das v. N. S. Adhikari (1971 crl. L. J. 1366) and the decision of the Bombay High Court in State of maharashtra v. M. P. Kalekar (1977 Crl. L. J. 1342) in support of the contention that the calling of pw. 3 to witness the action taken by pw. 2 did not strictly satisfy the requirement of the mandatory provision contained in S. 10 (7) of the act. The counsel submitted that this is not a case where the Food Inspector called one or more independent persons to witness the action taken by her and that they did not co-operate; this is a case where the Food Inspector, for reasons best known to her, instead of calling persons who are normally expected to be independent persons, like the persons who came to the hotel of pw. 3 to take tea, chose to call pw. 3, a person involved in the transaction, to witness the action taken by her. There might be cases where, as pointed out by the supreme Court in Ram Labhaya v. Delhi Municipality (AIR. 1974 SC. 789), one or more independent persons had been called, but they refused to co-operate with the Food Inspector. There could also be cases where the Food Inspector called one or more independent persons to witness the action taken, but ultimately, when examined in court, they turned hostile to the prosecution. In both these cases it might be open to the court to act on the evidence of the Food inspector who in no sense is an accomplice to the commission of the offence, without insisting on corroboration by the evidence of independent persons. The peculiarity of this case is that persons who are normally expected to be independent, though available in the place, were not called by the Food inspector, and a person who was not ordinarily likely to be an independent person, and was likely to take sides in the event of prosecution, was called to witness the action. ' The result is that the prosecution is denied the benefit of corroboration of the evidence of the Food Inspector by the evidence of an independent witness, for which the Food Inspector has to blame herself in as much as, instead of calling one or more independent persons, she chose to call pw. 3, who was involved in the very transaction relating to the taking of sample, to witness the action taken by her. On the facts and in the circumstances of the case I am of the view that the prosecution has failed to prove that the Food Inspector had called one or more independent persons to witness the action taken by her, as required in the mandatory provision contained in S. 10 (7) of the Act. For the foregoing reasons the conviction and sentence passed by the trial court, confirmed by the appellate court, are set aside and the accused is acquitted of the offence with which he was charged. The amount, if any, paid towards fine shall be refunded to the petitioner. Allowed. . .;