- (1.) VIRENDRA Saran, J. Ram Deo Sahu has preferred this revision against the judgment and order dated 24-3-1987 of Sri N. K. Mehrotra, II Additional District and Sessions Judge, Varanasi, dismissing Criminal Appeal No. 309 of 1985 against the judgment and order dated 16-11-1985 of Sri S. K. Maurya, Additional Chief Judi cial Magistrate, Varanasi passed in Criminal Case No. 6930 of 1984, convict ing and sentencing the applicant under Section 7/16 Prevention of Food Adultera tion Act, 1954 (for short the Act) to 3 months' R. I. and a fine of Rs. 500/ -.
(2.) THE prosecution case is that Sri C. R Srivastava, Food Inspector visited the grocery shop of the applicant and collected a sample of zeera. After due formalities a part of the sample was sent to the Public Analyst who found that extraneous matter was in excess from the prescribed limit and hence the zeera was adulterated. THE defence of the applicant was that he does not run any gorcery shop and that the sample was not taken from him. THE ap plicant also denied the signatures on the memo of taking of sample. THE two Courts below, accepting the prosecution case, convicted and sentenced the applicant as mentioned above who has now come up before this Court in revision. I have heard Sri C. K. Parekh, learned counsel for the applicant and learned Additional Government Advo cate at length. The submission made by learned counsel for the applicant is that in fact the defence of the applicant that he was carry ing on the business of running an oil expeller and that he was not having any Grocery shop has not been properly con sidered by the two Courts below.
(3.) I have gone through the judgments of the two Courts below. In his defence the applicant examined himself as DW1 and in corroboration of his evidence he examined DW. 2 Shankar Pandcy. Both of them stated in one voice that the applicant was engaged in running an oil expeller and he did not have any grocery shop. The applicant also stated that the sample of zeera was not taken from him. Against this there is the solitary tes timony of the Food Inspector on the point of collection of zeera from the applicant. No public witness was there in this case to sup port the testimony of the Food Inspector. The evidence of PW. 2 Rajendra Prasad was only of formal nature and he was not a witness of fact of taking of sample. Section 10 (7) of the Act states as under: "section 10 (7 ).-Where the Food In spector takes any action under Clause (9) of sub-section (1), sub- section (2), sub-section (4), or sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures. " The provisions of Section 10 (7) of the Act have been held to be mandatory in more than one case. In the case of Ram Lubhaya v. Municipal Corporation, Delhi, 1974 (4) SCC491, the Supreme Court held the provisions of Section 10 (7) of the Act to be mandatory. I am bound by law laid down by the Supreme Court.;