P.N.Goel - (1.) APPELLANT Him Lai has been convicted and sentenced under section 16 read with section 7 of the [Prevention of Food Adulteration Act, 1954 to undergo R. I. for 5 years and to pay a fine of Rs. 1000.00 by order dated 28-2-1977 passed by II Additional Sessions Judge, Azamgarh.
(2.) ON 3-12-1975 at about 1.20 P. M , Dharmdeo Yadav, Food Inspector, P. W. 1, had taken sample of mustand oil from the appellant in Doharighat, district Azamgarh. The Public Analyst found that the sample contained 21% linseed oil. Rule 44 (e) of the Prevention of Food Adulteration Rules, 1955 prohibits mixture of two or more edible oils, therefore, it was considered adulterated under section 2 (i) (a) of the Act. The main contention of the learned counsel for the appellant is that Dharmdeo Yadav was not Food Inspector of Doharighat area, that he was Food Inspector of Jahanaganj block and as such he was not competent to take sample of the mustard oil from the appellant. A glance at the statement of Dharmdeo Yadav shows that he was not Food Inspector of Doharighat area. Sec. 9 of the Act lays down that the Central Government or the State Government (may appoint) such persons, as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them, by the Central Government or the State Government as the case may be. Statement on oath of Dharamdeo Yadav shows that in December, 1975 Deputy Chief Health Officer directed that the Food Inspectors should raid and take samples from the offenders. Under his directions Dharamdeo Yadav had taken sample from the appellant. The Deputy Chief Health Officer had no right to appoint Dharamdeo Yadav for the area in question. He could be appointed by a notification made by the State Government or the Central Government. It is, therefore, evident that Dharamdeo Yadav being Food Inspector of another area was not competent to take sample from the appellant at Doharighat. In the case of Sewal Ram v. State, (?) Allahabad Cr. Cases 259 relied on by the learned counsel for the appellant, it was held that the Medical Officer was not competent to enhance jurisdiction of Food Inspector, and where the Medical Officer had done so, the conviction was liable to be set aside on this score. The learned counsel for the State pointed out that under Notification No. 7315/XVI-X-722-55 dated 22-11-1973, every Food Inspector was appointed for the whole of the district to which he was posted. This notification does not help the contention of the learned counsel for the State. By means of this Notification the Chief Sanitary Inspectors and the Sanitary Inspectors were appointed Food Inspectors for the whole of the district in which they were posted. This Notification does not say that a Food Inspector appointed for particular area of a district was the Food Inspector for the whole of the district. Therefore, this Notification affords no answer to the contention of the learned counsel for the appellant. It will be noticed that under section 9 the Central Government or the State Government can specify local areas to which Food Inspectors are appointed. In the present case, it is clear beyond doubt from the statement of Dharamdeo Yadav that he was Food Inspector of Jaharaaganj block and that he was not Food Inspector of Doharight area. In these circumstances Dharamdeo Yadav was not competent to take the sample of mustard oil from the appellant and as such the appellant's conviction could not be recorded.
(3.) THE appellant's counsel next contended that the Food Inspector made no compliance of the provisions of Section 10(7) of the Act in the sense that he did not call one or more persons of the locality at the time of taking sample. This question is not of importance in this case because the taking of sample of mustard oil by the Food Inspector is admitted. THE only difference between the version of the prosecution and the version of the appellant is that according to the prosecution the sample was taken from the shop of the appellant and according to the appellant it was taken from his house. It is obvious that one part of the sample was given to the appellant. If the appelllant was not satisfied with the report of the Public Analyst, he could have got his own sample analysed by the Director of the Central Food Laboratory as provided under section 13 of the Act. THE appellant did not take resort to this procedure. THErefore, omission to make compliance of sub-Sec. (7) of section 10 in the instant case has caused no prejudice to the appellant. In this aspect of the matter, this contention is without force. The appellant's counsel has raised one other point i. e. the two oils are primary food and as such can be mixed together. This contention is not correct in view of the specific rule 44 (e).;