Decided on May 11,1979



M.K.SHAH - (1.) this is a States appeal against an order of acquittal passed in criminal case No. 5 of 1977 acquitting the respondent-original accused for offences under sec. 7(1) read with sec. 16(1) (a) (i) of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act).
(2.) In an acquittal appeal I do not find any reason to disagree with the learned Magistrate in his ultimate finding that there is inter alia breach of Rule 16 (c) which rule is of a mandatory nature though with regard to his findings concerning sanction etc. I may not agree. Again in the instant case there is one feature of the case which goes to the root and vitiates the proceedings. Though the learned Magistrate referred to this feature he has not fully applied his mind to the relevant provisions contained in the Act itself in this connection. In this case as the panch says when he came on the scene the bottles were already lying there filled by sample milk and on being asked to sign he signed. This witness is not declared hostile and he does not say that when the sample was taken from the accused by the complainant the same was done in the presence of the panch.
(3.) Now if we turn to sec. 10(1) (a) it provides that a food inspector shall have power to take samples of any article of food from persons mentioned in the sub-clauses that follow clause (a). If we turn to sub-sec. (7) of sec. 10 it provides thus: "Where the food inspector takes any action under clause (a) of sub-sec. (1) subsec. (2) sub-sec. (4) or sub-sec. (5) he shall call one or more persons to be present at the time when such action is taken and take his or their signatures." It is, therefore, obligatory on the part of the food inspector to call a person or persons and to take the sample in the presence of such person or persons. As the said section provides the food inspector has to call a person or persons to be present at the time when he takes action under the various sub-section including clause (a) of sub-section (1) which provides for taking of sample of any article of food inter alia from any person selling such article. This is therefore a mandatory provision contained in the section itself laying down that the food inspector at the time when he does the actual act of collecting the sample from the accused has to keep a person that is a panch to be present which would be during the entire time when the process of taking sample is in operation. In view of the evidence of the panch it cannot be said that this obligatory function of taking the sample in the presence of a third person or panch was carried out by the complainant. On the contrary as the evidence of the panch shows merely his signatures were taken on bottles which were already lying there when he came on the scene. In this view of the matter taking of the sample and the subsequent proceedings with regard to packing and sealing the sample and getting the same analysed and prosecuting the accused are vitiated. On this ground also the order of acquittal passed by the learned Magistrate can be upheld. In view of this discussion it is not necessary to enter into other questions or to consider the other evidence on record. There is therefore no substance in the appeal and the same is dismissed. Appeal dismissed.;

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