M.C.JAIN, J. - (1.) THIS is an appeal by the Municipal Council, Sri Ganganagar, against the judgment dated 8 81973 passed by the Magistrate, First Glass, Sri Ganganagar, whereby the accused respondent was convicted of the offence under sec. 7/16 of the Prevention of Food Adulteration Act, 1954.
(2.) THE prosecution case in brief is that the Food Inspector Veer Singh checked the accused-respondent Naresh Kumar on 18-11-1970 at about 8 30, a.m., when he was proceeding on a cycle carrying cow milk. He purchased 660 ml. milk for 0.85 p. for analysis vide receipt Ex. P/1. THE sample was put into three bottles in equal quantity and 18 drops of formalin were put in each bottle and thereafter the bottles were packed and sealed. It was all done in the presence of 'motbirs' Om Prakash and Ram Chandra. Memo Ex P/2 was prepared on which signatures of the accused respondent and the 'motbirs' were obtained. Form VI was prepared in duplicate. A copy thereof was given to the accused and the other copy is Ex. P/3. THE Food Inspector delivered one of the sealed sample bottles to the accused and one was sent to the Public Analyst, Bikaner, for analysis. THE specimen impression of the seal along with the memo was sent to the Public Analyst through registered letter. THE third copy of Form VI is Ex. P/4. One of its copy was sent along with the sample. On receipt of the report of the Public Analyst Ex P/5, it was found that the milk was adulterated by reason of its containing about 16% of added water. THE fat contents were 5.0% and the solid non-fat contents were 7.1% THE Food Inspector submitted all the papers to the Chairman, Municipal Council, Sri Ganganagar, for consent and obtained his consent Ex. P/6. THEreafter a complaint was presented by him in the Court of the Magistrate, First Class, Sri Ganganagar. THE learned Magistrate tried the accused. THE prosecution examined two witnesses Veer Singh and Ramchandra. THE accused denied the prosecution case and in his statement under sec. 342, Cr.P.C., he stated that analysis was not done properly and the sample was tempered. He moved an application on 24 2 1973 for sending the sample to the Director, Central Food Laboratory, Calcutta, but the same was rejected on the same day on the ground that the accused appeared on 31.3.1972 and the sample was taken on 18.11.1970. THE sample of milk does r?ot remain fit for analysis and two years are over since the sample was taken, so the application was rejected on the ground that there is no sense in sending the sample to the Director for analysis. THE learned Magistrate after trial and hearing, acquitted the accused on the ground that compliance of section 10 (7) of the Prevention of Food Adulteration Act, 1954, has not been made. THE witness Ramchandra has not supported the statement of the Food Inspector and the other independent witness Shri Om Prakash has not been examined. THE acquittal was also recorded on the ground that the consent Ex.P/6 is not valid, the reason being that the offences under which the prosecution was sanctioned were not the offences under the Prevention of Food Adulteration Act. In the written consent the offences stated were under section 16 (1) (a) (g) (i) 16 (1) (a) (g) (ii). Dis-satisfied with the judgment of acquittal the Municipal Council has preferred this appeal after the grant of leave to appeal. I have heard Shri B.R. Arora, learned counsel for the appellant, and Shri M.L. Garg, learned counsel for the accused-respondent, and perused the record of the case. The learned counsel for the appellant first contended that in view of the statement of the Food Inspector it stands proved that the compliance of section 10 (7) of the Prevention of Food Adulteration Act was made. According to the Food Inspector the sample was purchased in the presence of Om Prakash and Ram Chandra and all formalities were completed in their presence. Thus, they were associated in the proceedings right from the very beginning. He urged that even Ramchandra, who has not supported the prosecution, has admitted his signatures on Ex P/2. 2 form VI and Memo Ex.P/3 Ramchandra, no doubt, has stated that when he reached near the Food Inspector, milk was already there in the bottles and he does not know from whom the milk was taken, but he admitted that at that place the Food Inspector and Naresh Kumar were there along with one more person, whose name he does not know. According to him his signatures were obtained to verify that the bottles were sealed in his presence. The learned counsel submitted that, it appears, no permission to cross-examine this witness was sought, but that will be of no consequence and the statement of Ramchandra does not bind the Municipal Council. There can be no valid reason to discard the testimony of the Food Inspector. The evidence of Ramchandra ought to have been appreciated on the basis of Ex.P/2 and Ex.P/3 along with the statement of the Food Inspector. He also urged that the steps for the production of Om Prakash were continuously taken by the complainant. Despite service of summons he did not appear. Thereafter warrant was issued, but the warrant returned unserved, so his evidence was closed. Under these circumstances it cannot be said that the other witness was with held by the complainant He referred to some case law pointing out that if compliance of section 10 (7) is proved by the statement of the Food Inspector, non-production of any 'motbir' does not vitiate the trial. The learned counsel for the accused-respondent on the other hand submitted that Ram Chandra has not been declared hostile and as such his statement should be taken to be true and according to his statement, he was not associated from the stage of purchase of sample and putting the sample in clean dry bottles in equal quantity and then putting 18 drops of formalin in each bottle. When he has not been so associated, compliance of sec. 10(7) was not made and on this ground the learned Magistrate was justified in not acting upon the sole testimony of the Food Inspector. He very much emphasised that the statement of Ramchandra cannot be considered to be hostile to the complainant when no permission has been sought to cross-examine him. The first question that emerges for consideration is as to whether the statement of Ramchandra binds the complainant when he has not been declared hostile or when no permission was sought to cross-examine him. In this connection it may be stated that the evidence of this witness has to be appreciated in the light of the other material on the record. If the evidence is found worthy of credence that alone it can be acted upon. Simply because permission to cross-examine was not sought it cannot be said that the prosecution is bound by whatever the witness has stated. Under section 154 of the Evidence Act, it is open to the party to put any question in the nature of cross examination after seeking necessary permission from the court and the court may allow in its discretion, such question which may be put in cross examination by the adverse party to a witness by that party who has called him. When no permission is sought and no cross-examination is directed, there is no such rule that whatever the witness has stated binds the party who has called. Reference in this connection may be made to a decision of Mysore High Court State of Mysore vs. Raju Shetty(l). In this connection it was observed as under:- "Ordinarily when a party puts a witness in box, he can be taken to represent to the Court that the said witness is expected to state the truth. On the ground of policy a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. It is entirely for the court to decide whether in given circumstances a witness has turned hostile and whether permission should be granted to the party calling him to crossexamine him Hence, even if a party calling a witness wants to treat him as hostile, his opinion as to the hostility or otherwise of the witness or the truth or otherwise of his evidence, is not final and not binding on the Court. The very object of taking evidence is to discover the truth as far as it is humanly possible for the presiding judicial officer to do. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, the Court on a consideration of his evidence is entitled to either believe or disbelieve him. The rule does not change if the evidence given by such a witness is adverse to the case of the party calling him. Even in such a case, the Court has the power and duty of deciding whether or not to believe him. It is, therefore, not right to proceed on the basis that whatever is stated by a witness which is not in favour of the case of the party calling him should necessarily be believed as if it were an admission made and finding upon the party calling him."
(3.) IN the light of the principle enunciated above the statement of Ram-Chandra can be judged and if it is found unworthy of credence having regard to the testimony of the Food INspector and the other material on record, such a statement would not in any way bind the complainant. It may be stated that Ramchandra has admitted his signatures on Form VI, Ex P/2 and Memo Ex. P/3. IN view of these signatures on these documents, it cannot be said that he is a truthful witness and his statement does not inspire confidence. Whatever he has stated, on that basis it cannot be found that the sample was taken in his presence. As regards the compliance of section 10(7) I find the statement of Veer Singh truthful and credible and nothing has come out in his cross examination so as to detract from the truthful character of his statement. According to him Om Prakash and Ramchandra both were called and in their presence the sample was taken and other formalities were completed. The sample was purchased and was put into the three bottles in equal quantity and three bottles were packed and sealed. IN Babulal Hargovindas vs. State of Gujarat (2) their Lordships of the Supreme Court observed that the provisions of Section 10(7) being salutary should be complied with by the Food INspector, This however does not mean that the evidence of the Food INspector who is not an accomplice, that he had complied with the requirements of law by calling a panch witness and taking his signature cannot be accepted without corroboration especially when the panch has admitted his signature. In Shri Ram Labhaya vs. Municipal Corporation of Delhi (3) observations made in the case of Babu Lal Hargovindas vs. State of Gujarat ( supra) received the approval of the court and the Court observed that this ought not to be understood as minimising the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against the possible allegations of excesses or unfair practices by the Food Inspector, and further it was held as under:- "While taking action under any of the provision mentioned in sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, 1954, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. However, regard ess of all circumstances, the non-presence of one or more independent persons at the relevant time would not vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to ''call" one or more persons to be present when he takes action. Where the Food Inspector did call the neighbour shopkeepers to witness the taking of the sample but none was willing to co-operate, he could not certainly compel their presence. In such circumstance*, the prosecution was received of its obligation to cite independent witnesses It is easy enough to understand that shop-keepers may feel bound by fraternal ties but no court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws." Reference may also be made to a decision of the Supreme Court Prem Ballab vs. The State (Delhi Admn.)(4). In this case his Lordship Bhagwati, J. observed as under: "It is unfortunately not an infrequent occurrence to find that panch witnesses turn hostile and go back upon what is stated in the panchnama in utter disregard of truth. This betrays lack of character and absence of civ c sense which not only result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity, This is a highly reprehensible phenomenon which has to be curbed in the larger interest of the administration of justice." ................................................................. "There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of cauion that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law If it were otherwise, it would be possible for any guilty person to escape punishment by restoring to the device of bribing panch witnesses. The conviction of the appellant cannot, therefore, be assailed as infirm on the ground that it rested merely on the evidence of Bhanot and Bhatnagar." ;