- (1.) C. A. Rahim, J. This Revision is directed against the judgment and order dated 11-10-1983 passed by the 1st Addi tional Sessions Judge, Ghazipur, in Criminal Appeal No. 152 of 1983, uphold ing the conviction of the applicant under Section 7/16 of the Prevention of Food Adulteration Act but reduced the sentence from one year R. I. and a fine of Rs. 2000 to six months R. I. and a fine of Rs. 1000, in default to undergo four months R. I.
(2.) THE Additional Munsif-Magistrate Saidpur, convicted and sentenced the ac cused-applicant in the aforesaid manner by the judgment and order dated 13-5-1983 in Case No. 100/83. Sri P. N. Mishra, appearing for the accused-applicant has submitted that the identification of the salesman of the shop wherefrom the coloured PERA was pur chased by the Food Inspector on 17-10- 1979 at 3 p. m. has not been established. He has submitted that at first the complaint was lodged against Anil Kumar son of the ac cused-applicant. After about 1 1/2 years Anil Kumar was discharged and in his place the accused-applicant, his father, was figured as accused and the case proceeded against him. It has been submitted that the prosecution having failed to establish the identity of the salesman whether it was Anil Kumar or Ram Chandra, conviction cannot be sustained. It is the prosecution case that Ram Chandar was selling the food products in the shop before while disclosing his identity he told that he was Anil Kumar son of Ram Chandar and on that basis memo etc. were prepared according to the Rules if wrong (sic) Anil Kumar as accused but later on when it transpired that it was not Anil Kumar but his father was selling food products, his name was deleted and Anil Kumar was discharged.
(3.) LEARNED counsel has also submitted that compliance of Section 10 (7) of the Prevention of Food Adulteration Act has not been made in this case which has got particular relevance with the fact that iden tity of the salesman is disputed. Section 10 (7) of the Act provides that independent persons present at the spot should be called as witnesses. It is in evidence that some persons were present there. The Food Inspector has stated in his evidence that they were called to witness the fact of purchase but they did not agree. The learned counsel has rightly pointed out that in that case the Food Inspector should have noted in the memo the said fact of refusal, which he did not do, so according to him the evidence in this respect of the Food- Inspec tor is an after thought. In this connection he has referred the case Fateh Bahadur Srivastava and another v. State, 1983 Alld. Criminal Rulings 51 wherein it has been held that "if the independent witnesses are not prepared to give evidence such fact should be mentioned in the memo prepared on the spot failure of which the conviction is not sustainable. ";