S.D. Singh, J. - (1.) THIS application in revision arises out of a prosecution under Section 16 read with Section 7(1) of the Prevention of Food Adulteration Act (XXXVII of 1954) At about 7-30 a. m. on 25th March, 1965, the Food Inspector K. P. Batish of Hapur Municipality in district Meerut took a sample of milk from the shop of the applicant Ram Dass. He purchased 12 chhataks of milk for 51 n. p. and sealed and signed it in three phials, one of which was given to the applicant, the other retained in the office of the Hapur Municipality and the third sent to the Public Analyst for examination and report. The Public Analyst found, as is indicated by his report Ex. Ka. 3, that the sample was deficient in non-fatty solids to the extent of 21 %, the standard applied being that for mixed cow and buffalo milk the mixture of the two milks being supposed to be half and half. The applicant was consequently prosecuted under Section 16 read with Section 7(1) of the aforesaid Act. He was convicted by the Magistrate and sentenced to six months rigorous imprisonment and a fine of Rs. 1,000.00. He went up in appeal which was dismissed by the Additional District and Sessions Judge, Meerut. and hence this application in revision by him.
(2.) THE applicant denied that he sold any sample of milk to the Food Inspector, his allegation being, that there was milk placed in a can underneath his shop, that it belonged to one other milk seller who had come there and that the sample was taken by the Food Inspector from that can and documents prepared by him were in respect of the same and he merely signed them as a witness. The applicant did not examine any evidence in his defence. The prosecution evidence was considered by the Magistrate. It appears that when the sample was taken, two witnesses Shadi Ram and Nathi were required to sign the documents prepared at the time, including the receipt which was given to the applicant, but none of them was examined in the case. The oral evidence in the case consists of the testimony of the Food Inspector, K. P. Batish and one other person, Charan Singh, who is said to have been present when this sample was taken. Some arguments were advanced by the learned counsel for the applicant as to the requirements of sub- section (7) of Section 10 of the Prevention of Food Adulteration Act (referred to hereafter as the Act) and the amendments made therein under the Amendment Act 49 of 1964. Under sub-section (7), as it stood before the amendment, the Food Inspector was required to "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." Under the amended sub-section (7) the Food Inspector shall "call one or more persons to be present at the time when such action is taken and take his or their signatures." Under the law prior to the amendment, therefore, the Food Inspector was required to call not less than two persons as far as possible, while under the sub-section, as it stands after the amendment, he may call only one or more persons to be present at the time but the verb used in respect of them is "shall call" which means that it is now mandatory on him to call one or more persons when he takes sample; but nothing turns upon this interpretation of this Sub-section (7) so far the case against the applicant is concerned, for we have it in the evidence that two persons Shadi Ram and Nathi were called by the Food Inspector when he took the sample and he even took their signatures over the documents which were prepared at the time. One of these documents is the report which the Food Inspector submitted to the Medical Officer of Health, but it does not appear to bear any exhibit mark. Another document is Ex. Ka. 1 which is a notice in form no. 6 given to the applicant regarding the taking of the sample and another document is receipt Ex. Ka. 2 which the applicant gave to the Food Inspector for having received the price of the Milk and one of the phials containing the sample of the milk taken from his shop. If two persons were, therefore, called at the time the sample was taken and their signatures also taken by the Food Inspector, the requirements of sub-section (7) of Section 10 of the Act were fully complied with. Reliance was placed by the learned counsel for the applicant on Ganesh Lal Shaw v. Asansole Municipality, 1963 (1) Cri. LJ 658 (Cal), in which it has been observed that it is desirable that in a case of this nature the prosecution should examine all the search witnesses, if possible, to dispel all doubts about the manner in which the sample was taken, and about the place where, and the person from whom the sample was taken, in other words, to put the entire transaction above board. In that particular case also there were two witnesses of the taking of the sample; one of them was supposed to be one who always accompanied the Food Inspector. Only he was examined as a witness in the case in addition to the Food Inspector of course, and it was the evidence of this witness which was urged to be unreliable, but even so it was held that there was compliance with the provisions of Section 10, Sub- section (7) of the Act and the application in revision was dismissed. Even though, therefore, it was observed in the case that it was desirable for the prosecution to examine all the search witnesses as witnesses in the case, the evidence of only one of the witnesses was considered enough to support the statement of the Food Inspector, even though that witness was not supposed to be very independent.
(3.) IT has been observed by Das Gupta, J. himself in the aforesaid case itself that the point involved for decision in such cases is a pure question of fact. What has, therefore, to be seen in a particular case is whether on the basis of the evidence which has been examined in the case it can be believed that the sample which was found to be adulterated was taken by the Food Inspector or if the evidence produced is unreliable or shaky or of a doubtful nature. Even if the evidence is not altogether unreliable, if it is shaky or doubtful in nature, the Courts would certainly give the benefit of the same to the accused; but if the evidence establishes that the sample was taken from the shop of a particular dealer, then even though no witness has been called in the witness box in support of the statement of the Food Inspector, there is no reason why his solitary statement may not be believed. Normally the prosecution will no doubt examine one or more of the witnesses whose signatures are obtained on the documents prepared at the time of the taking of the sample, but if for some reason or the other the prosecution does not rely upon their statements, or does not find it possible to examine them as witnesses in the case, surely the prosecution case will not be thrown out on that account. The prosecution is entitled to urge that the truth of the allegations which are being made against an accused person may be judged on the basis of the evidence which is in fact examined in the case and if that evidence is satisfactory and there is no reason whatsoever to doubt the truth thereof, then the prosecution can very well urge that even though certain witnesses may not have been examined, the Court should record a finding of guilty against the accused.;