- (1.) HEARD learned counsel for the applicants and the learned AGA.
(2.) THE applicants are being prosecuted for an offence under S.7/16 of the Prevention of Food Adulteration Act. Three contentions have been raised by the learned counsel for the applicants for the prayer that the aforesaid prosecution of the applicant be quashed. Firstly, he contended that the applicants are running a restaurant business and therefore, there is no sale of the Besan in question which was kept for preparation of eatable in the restaurants. The said contention of the learned counsel for the applicants is bereft of any sound reasoning because Food Inspector after preparation of Form 6 paid the sale price of Rs.21. The said sale to the Food Inspector by itself constitute sale within the meaning of the sale under the PFA Act and is indicative of the fact that Besan was meant for sale. There is no requirement of the law that the sale to the Food Inspector is not covered within the definition of sale under the Prevention of Food Adulteration Act. The first contention of learned counsel for the applicant, therefore, is wholly meritless.
(3.) THE second contention of learned counsel for the applicant is that S.10(7) of the Prevention of Food Adulteration Act has not been complied with as no independent witness has come forward to be a witness of taking sample and sampling procedure. Firstly, the requirement of law is that the Food Inspector should make an endeavour to secure the presence of independent witnesses at the time of taking sample. It is not the requirement of law that unless the independent witnesses are present personally no sample can be taken. The contention of learned counsel for the applicant based on the said reasoning is not acceptable for the simple reason that if the independent witnesses refuse to be a witness of sampling the Food Inspector cannot eschew his legal responsibility of taking the sample. He has only to make an endeavour to secure the presence of independent witness but if they are not available or are not ready to be witness then taking of sample cannot be eschewed. Duty to take sample is not dependent upon disinterestedness and non availability of independent witness. Further in the present case the Food Inspector has mentioned that he had made efforts to secure the presence of independent witnesses but they refused to divulge the name and address and to be a witness of procedure of taking sample. For the twin reasons above the second contentions of the learned counsel for the applicant is also repelled.;