S.K.AGARWAL, J. - (1.) HEARD learned Counsel for the applicant and learned A.G.A.
(2.) SO far as conviction under Section 7/16 of the Prevention of Food Adultera­tion Act (hereinafter referred to as the Act') for not giving the sample whereby the applicant was held guilty for the viola­tion or the provisions of Section 16 (l)(c) and (l)(d) is concerned the evidence of P.W. 2 coupled with the evidence of D. W. 1 clinchess the issue in favour of the ap­plicant that neither he was carrying on the business of grocery nor he had any such shop. His defence that he was engaged in watch repairing work is borne out from the evidence available on record. P.W. 2 is the independent witness of the prosecution. He has admitted in so many words in the examination-in-chief as .well as in cross-examination that the ap­plicant had informed the Food Inspector that the shop does not belong to him. He may take the sample from its owner, who is not present at the shop on his return. The Food Inspector and this witness both had stated that the applicant had closed the shop and went away. He thereafter stated that when he was 4 or 5 steps away from the shop the applicant had left the place by locking the shop. Thus he made two dif­ferent types of statements in the same breadth. Therefore, it appears that P.W. 2 was not an eyewitness. The later portion of his evidence has also some bearing upon the presence of this witness. He had stated that 'Who does not know the Food Inspec­tor in P.S. Milak. He is a king. Whatever he will ask people will do. No body can defy him.' I have no reason to disbelieve this piece of his statement. It leads to no other inference than one that the Food Inspector wielded enormous influence upon the local people of his area. They are gripped by a typical fear psychosis. He was not re-examined by the prosecution to seek any clarification for the above evidence from him. Therefore, this witness is ap­parently speaking what the Food Inspector commanded him to say irrespective of the fact whether it is true or false. He had deposed every thing that is stated by the Food Inspector, but the statement made by him in cross-examination is that they were just 5 or 4 steps away from the shop when the shop was closed. He had further ad­mitted that he did not know the applicant from before. In these facts and circumstan­ces, the evidence of this witness cannot be used by me for corroboration of the Food Inspector. His statement clearly negatives any case of resistance having been offered by applicant to the Food Inspector in taking sample.
(3.) FROM the statement of the Food Inspector, it appears clearly that the ap­plicant had left the shop before food in­spector came there and the story of locking the shop may be a doubtful situation. If he was not the owner of the shop, it was not possible for him to give any sample to the Food Inspector. Why any one, who is not concerned with the business and does not own it, should take the responsibility upon him. The Food Inspector had admitted that he had made no enquiries regarding the owner of the shop either from other persons present there or from the local body. In the presence of these lacunas it is not proper for this Court to affirm the conviction of the applicant under Section 7/16of the Act or for the violation of Rules 50 of the said Act.;