G.C. Mathur, J. - (1.) This criminal revision has been referred to this Bench for decision at the instance of K.B. Asthana, J. The Applicant in this case was convicted by a Magistrate I Class, Kanpur, Under Sec. 7/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to undergo rigorous imprisonment for one year and to a fine of Rs. 1,000/ -. In default or payment of fine, he was ordered to undergo rigorous imprisonment for a further period of eight months. His appeal against his conviction and sentence was dismissed by the II Temp. Civil and Sessions Judge, Kanpur. He thereupon filed a revision in this Court which was admitted by Asthana, J. only on the question of sentence. Subsequently, an application was made by the Applicant, stating that the revision involved the interpretation of Sec. 10(7) of the Prevention of Food Adulteration Act, regarding which there were conflicting decisions of Single Judges in this Court and praying that the revision be heard on merits also. This application was allowed by Asthana, J. and after hearing learned Counsel for the Applicant he directed that the revision be referred to a Division Bench for decision. That is how the case has come before us.
(2.) On October 9, 1968, at about 11 -45 a.m. the Applicant was found selling and exposing for sale ghee at his shop in Mohalla Ali Zaheea Market, P.S. Babupurwa, Kanpur. Food Inspector Gulshan Ambwani PW 1 purchased a sample of ghee from him in the presence of Jagdamba Prasad Safai Naik of the Ma -hapalika. The sample was got analysed and was found to be adulterated. At the trial, the prosecution examined Gulshan Ambwani Food Inspector (PW 1) and Jagdamba Prasad Safai Naik (PW 2) to prove the purchase of a sample of ghee from the Applicant. The Applicant admitted that the sample of ghee was taken from him but contended that it was taken forcibly, from him and that no price was paid therefor. He also contended that he had a cloth shop and the ghee was kept there not for sale but for poor in. The trial court held that the Applicant was selling and exposing ghee for sale and that a sample of ghee was purchased by the Food Inspector from him. In view of the report of the Public Analyst, the trial court convicted and sentenced the Applicant as stated above. In appeal, one of the questions raised by the Applicant was that the conviction of the Applicant was vitiated as no independent witness of the public was examined in support of the prosecution case. The appellate court, relying upon a decision of M.N. Shukla, J. in Rama Kant v/s. State, 1970 AWR 81, rejected this contention. It further held that the Applicant's objection had no force, specially when he admitted the taking of the sample from him. The findings of fact recorded by the trial magistrate were all confirmed by the appellate Court.
(3.) The question, which has been raised in this revision, is that the conviction of the Applicant is vitiated on account of non -compliance with the provision of Sec. 10(7) of the Prevention of Food Adulteration Act. This section, as it stood at the material time, reads thus: 10 (7) - -Where the Food Inspector takes any action Under Clause (a) 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. This Sec. nowhere talks of "respectable witnesses of the locality." Sec. 10, Sub -section (7), as it stood before its amendment in 1964, was in the following terms: 10 (7) - -Where the food inspector takes any action Under Clause () of Sub -section (1), Sub -section (2), Sub -section (4) or Sub -section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures. It will be noticed that, by the amendment of 1964, the words "as far as possible" were deleted and for the words "not less than two persons" the words "one or more persons" were substituted. These provisions have come up for consideration before this Court on several occasions. In Municipal Board, Saharanpur v/s. Dhian Singh, 1966 AWR 662 M.H. Beg, J. held: The object of Sec. 10(7) of the Prevention of Food Adulteration Act is to ensure that an actual and genuine transaction of sale of the sample and its formalities are proved by evidence which is above board and satisfactory. The sale cannot be vitiated simply because no witness was available Each cass has no be decided on its own facts and circumstances. In Ram Dass v/s. State : AIR 1969 All. 109 S.D. Singh, J. has held that any irregularity in the taking of sample cannot vitiate the taking of the sample from the accused. He has further held that there is no requirement Under Sec. 10(7) that the witnesses should be respectable parsons of the locality as is required Under Sec. 103 Code of Criminal Procedure. In Rama Kant v/s. State (supra) M.N. Shukla, J. has held: The terms of Sec. 10(7) of Prevention of Food Adulteration Act clearly indicate that it is not necessary for the Food Inspector to take an 'independent' witness in the sense that he must be a public witness or a respectable witness of the locality. There is nothing inherently wrong in a Government Official or a public servant which may disqualify him for being taken as a witness as required by Sub -section (7) of Sec. 10. Rajeshwari Prasad, J. has in A.K. Chakravarty v/s. The State, 1968 AWR 262 held that the requirement of Sec. 10(7) as to the presence of two witnesses is mandatory in those cases where it is possible to comply with the same. With respect, this appears to be self contradictory. In this case, no witness other than the Food Inspector was examined and since there was no satisfactory explanation as to why the other witness or witnesses were not present at the search, the learned Judge held that no reliance could be placed on the sole testimony of the Food Inspector and allowed the revision. Our attention has also been invited to the decision of Tripathi, J. in Teja Ram v/s. State, 1970 AWR (J) 9 :, 1970 ACrR 122. In this case, the Food Inspector was accompanied by the sanitary overseer when he took the sample. Tripathi, J. was of the view that the sanitary overseer was a member of the raiding party and was not a person who could be called to witness the taking of the sample. He accordingly held that there was non -compliance with the provisions of Sec. 10(7) and therefore, the prosecution was based on an action which was not in accordance with law stood vitiated.;