S. Rangarajan, J. - (1.) This is an appeal by the Municipal Corporation of Delhi, special leave having been granted by a Division Bench of this Court, against the acquittal of Dewan Chand (respondent). He was prosecuted under section 7/16 of the Prevention of Food Adulteration Act on the allegation that on 10-11-1966 at 1.40 p.m. he was selling sweets (Cham-cham) prepared with Channa and edible colour at shop No. WZ/218, subhash Bazar, Nangal Rai, Delhi a sample of which was purchased by the Food Inspector, Shri Sohan Lal Mehra (P.W. 1) ; when analysed by the Public Analyst it was found adulterated on account of the presence of unpermitted colour in the said sweet preparation. The two defences of the accused/respondent which prevailed with the learned Magistrate (Shri D.D. Gautama) were that the sweets sold were meant for the purpose of decoration during Dewali and not meant for human consumption and that one of the prosecution witnesses (P.W. 4) Ram Chand, who was not treated hostile, had stated that the empty bottles already contained colour when they were being filled. It is needless to say anything about the first contention.
(2.) We have, though reluctantly, to decline for reasons to be presently mentioned, to interfere with the acquittal. The Food Inspector, Shri Sohan Lal (P.W. 1), had no doubt denied the suggestion put to him that the bottles were not clean before hand and that they were cleaned at the spot. But the denial has to be appreciated in view of his statement which he volunteered as follows : "the bottles were already cleaned and the shopkeeper himself also cleaned the bottles at the spot" as permitted by him so that the shopkeeper should satisfy himself by cleaning the bottles with a cleaned white cloth". I he suggestion put to him was that he had taken a sample of Haldi from a neighbouring shopkeeper who is now said to be Mohan Lal (D.W. 1). At the relevant time D. W. 1 had a shop adjacent to that of the accused (which had been vacated by the time he gave evidence). D.W. 1 swore that the Food Inspector, whose name he could not mention but such particulars what he mentioned were that he was 50 or 60 years old, small statued and wearing spectacles, with grey hair, had gone to his shop one or two days prior to last Dewali at about 1.30 p.m. Out of a torn packet of Haldi, which was lying at his shop, he filled in two bottles, desiring to take samples of Haldi; the third bottle could not be filled because the quantity fell short. The Food Inspector, therefore, returned the Haldi to him and went to the neighbouring shop where he filled those very bottles with Cham-cham taken from his neighbour (accused)'s shop. Despite the accused's objection that Haldi was sticking the Food Inspector took the sample and went away saying that there was no harm if Haldi was sticking. Despite the particulars given by D.W. I in cross-examination, which apparently fitted P.W. 1, no question was put by the prosecution in the cross-examination of this witness even to suggest that he was not referring to P.W. 1 but some one else. We are not told why this was not even attempted ; we have, therefore, to proceed on the footing that D.W. 1 referred to P.W. 1. The only suggestion made to him was, that he was deposing falsely because he was accused's neighbour.
(3.) There was yet another Food Inspector, Shri Shanti Nath (P.W. 3), who was also present at that time and had attested Ex. P.C., prepared by the P.W. I at the spot. He also denied the suggestion in cross-examination that a sample of Haldi had been taken from another shop prior to the said sample taken from the accused/respondent's shop that Haldi was sticking but he did not say anything about P.W. 1 asking the accused to make sure that the bottles were cleaned by wiping them with a cloth if he wanted. Ram Chand (P.W. 4), the only nonofficial witness, who had attested Ex. P.C., stated in cross-examination as follows : "It is correct that some yellowish colour was there in the bottles. The accused had told that the bottles were not clean. Thereupon the Food Inspector told that there was no harm in that." The above statement of P.W. 4 militates against the prosecution case or at least throws grave doubt concerning the same. The accused has to be given the benefit of that doubt.;