Reserved
Court No. - 17
Case :- CRIMINAL REVISION No. - 1950 of 2001
Revisionist :- Kalyan Singh
Opposite Party :- State Of U.P.
Counsel for Revisionist :- Dharmendra Singhal
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Suresh Kumar Gupta,J.
1. This criminal revision has been filed against the judgment and order dated 17.07.2001 passed by VIth Additional Sessions Judge in Criminal Appeal No. 42 of 2000 (Kalyan Vs. State) thereby confirming the conviction and sentencing passed by Additional Chief Judicial Magistrate-I, Aligarh in Case No. 1984 of 1994 (State Vs. Kalyan) under Section 7/16 of Prevention of Food Adulteration Act (hereinafter referred as P.F.A. Act), Police Station, Atrauli, District Aligarh to undergo rigorous imprisonment for six months and fine of Rs. 1000/- under Section 7/16 of P.F.A. Act passed on 08.05.2000.
2. Brief facts of this case are as follows-:
On 16.11.1983 at about 7.00 A.M. Sri S.K. Gupta, Food Inspector has taken the sample of milk from the revisionist, Kalyan Singh, who was found selling adulterated milk. Food Inspector had taken the sample and after completing all necessary formalities, he sent the sample to Public Analyst for test. The report of public analyst Ex. Ka.7 shows that sample of milk contained only 4.7 per cent milk fat and 7.1 per cent non fatty solid. So the milk fat is 22 per cent and milk solid fat is 21 per cent less than the prescribed standard, thus the sample was adulterated and a complaint filed against the revisionist-accused and revisionist-accused was summoned to face trial, who denied the allegations. The prosecution examined certain witnesses in support of the case.
3. The learned trial court after scrutinizing the circumstances, convicted the accused and directed him to suffer relevant punishment. This judgment and order of conviction and sentence passed by the Magistrate, was challenged by revisionist, before the Sessions Court, which is affirmed in the appeal.
4. I have heard Sri Dharmendra Singhal, learned counsel for the revisionist, learned A.G.A. for the State and perused the material available on record.
5. Learned counsel for the revisionist submitted that revisionist has been falsely implicated. He further submitted that there is also no compliance of under Section 13 (2) of the P.F.A. Act and Section 10 of the Act.
6. Though an attempt was made to argue that sample was not adulterated but it is difficult to accept the said submission. Definition of adulteration has contained in Section 2 (i.a) reads as under:-
(i.a) “adulterated” an article of food shall be deemed to be adulterated.”
(m)“if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.”
Clause (M) postulates a situation whereof article falls below the prescribed standard, even if it is not injurious to health nevertheless the quality /purity of article were falls below the prescribed standard, it would be treated as adulterated.
7. One of the arguments placed by the revisionist counsel is that there is no compliance of the mandatory provisions under Section 10 of the Prevention of Food Adulteration Act. Section 10 (7) of the Act provides that where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section(4) or sub- section 6, he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. This provision seems to be mandatory in nature. What is contemplated by section 10 (7) of the said Act is that the Food Inspector while taking action for taking sample of any food must call one or more persons to be present at that time. If the Food Inspector makes attempt to call one or more persons at the time of taking sample and the persons so called by him shows their unwillingness to be witnesses, the Food Inspector cannot be blamed in such situation and it will be deemed that the Food Inspector has made sufficient compliance of section 10 (7) of the Act. But where the Food Inspector does not make any such attempt, it would amount to violation of the mandatory provisions of section 10 (7) of the Act. Section 10 (7) of the Act seems to have significance due to the reason that the proceedings done by the Food Inspector may get authenticity during trial and the prosecution version may be believed. In absence of due compliance of the provisions of section 10 (7) of the Act a valid conviction cannot be recorded against the accused.
8. In 1981 AWC 174 (Sunil Kumar Vs. State) it has been laid down that provisions of Section 10(7) are mandatory. In ILR 1981 (2) Kerala 166 (Jose vs. Food Inspector and Anr.), the Kerala High Court has held that the provisions of Rule 17 are mandatory. In 2003 (4) MPLJ 279 ( Ramesh Khati vs. State of Madhya Pradesh) it has further been held that non-compliance of Rule 17 and 18 of Rules 1955 and of Section 13 of the Act, 1954 renders the whole prosecution faulty.
9. Learned counsel for the revisionist has also relied upon the judgment of this court in Devi Prasad Versus State of U.P. and Anr.
“8.As the Food Inspector has to find out whether the milk being offered for sale is buffalo milk, cow milk or of any other animal's milk before he embarks upon the exercise of taking the sample. Milk has been defined in Rule A11.01.01. The evidence shows that the Food Inspector never cared to find out the nature of the milk from the applicant which was claimed to be carried by him. In this case it will not be possible to contend that the milk was offered for sale without any indication of its nature or class. Falling back on the note to apply the standard for buffalo milk if on making such an enquiry the vendor does not make any disclosure does not arise in this case since the legal onus was not discharged by him. This presumption under Schedule B of the Rules would arise only when such an enquiry was made and the vendor fails to disclose nature of his milk. On the other hand, if the Food Inspector did not make any enquiry about it the vendor voluntarily does not state that nature of his milk himself, as the case may be, there cannot arise any question of raising a presumption as referred to in Schedule B.
9. Section 11(1)(a) read with Section 2(i-a)(a) of the Prevention of Food Adulteration Act provides that the Food Inspector may take sample in bulk to be divided in three parts. Such taking of sample though not a sale in true sense but still shall be so treated in law because it is recognised as such. It is further indicated by these provisions that there must be a representation about the article sold.
10. In the instant case, there is no evidence on the record to indicate that when the Food Inspector purchased the sample of milk in dispute, he cared to ascertain the class or nature of that milk from its vendor. There is no legal obligation on the vendor to disclose the nature suo motu when any one wants to buy his milk. It will, therefore not be possible to say that the nature of milk is indicated as mixed or buffalo milk in those cases where the vendor maintains silence. There is no evidence of any attempt by Food Inspector to elicit the same from him. Only cases where notwithstanding such attempt, the vendor chooses not to disclose the nature of milk or is unable to disclose it, the presumption may be pressed into service and the milk will be tested with the standard prescribed for buffalo's milk.
11. As a matter of fact, the Food Inspector cannot be treated as customer because a customer undoubtedly commands the nature and quality of the article which he is going to purchase as a customer. Vendor is doing it under a legal obligation and he is required under the law to supply the article of the nature and quality as demanded by his customer. The case with Food Inspector, a public servant, is much different than an ordinary customer. The Food Inspector is under an obligatory duty to enquire from the vendor about the nature of the article carried by him or exposed for sale by a retailer, whole-seller or manufacturer. Thus in most of the cases where the nature of an article of Food by its visual examination cannot be ascertained, the Food Inspector is under obligatory duty to enquire about the same from its vendor. In the present case the contention appears to be that the Food Inspector has not fulfilled his obligation. He had failed, as argued by learned counsel for the applicant, to give a clear reply whether he had made any enquiry about the nature of article of food before taking this sample as indicated clearly by note (1) appended to Rule A.11,01.01. (Appendix B).
12. According to this Rule, the Food Inspector is required to find out as to whether the milk being offered for sale is (a) buffalo milk, cow milk or any other class of milk or (b) milk without any indication of any class. If the milk is offered for sale without any indication, even on enquiry, while analysing it standard for buffalo milk is to apply. The evidence shows that the Food Inspector never cared to find out what class of milk the applicant claimed to be carrying. Therefore, it would not be possible to contend that the milk was offered for sale without any indication of its nature and so he could fall back on Note 1 to this rule for following the standard of buffalo milk for analysing the sample. As the note does not apply to the facts of this case as discussed above the milk cannot be held to be adulterated. Judging it from the standard of mixed milk it conforms to that standard.”
10. It is the bounden duty of Food Inspector that at the time of taking sample, he should inquire about the milk whether what quality of milk carry by accused-appellant. If the quality of milk is not inquired then this prosecution cannot be taken that the sample of milk is milk of buffalo. On perusing the public analyst report, it transpires that as per the analyst report, report is prepared according to standard of buffalo milk. So in this case the entire proceedings regarding prosecution is vitiated and it is not safe to arrive inference that the milk, carried by the revisionist, was adulterated.
11. Learned counsel for the revisionist contended that neither compliance of Section 10(7) of P.F.A. Act is done by opposite party no. 2 nor by prosecution. So the whole proceeding is vitiated on this ground only. Under Section 10(7) of P.F.A. Act it is provided that whether the Food Inspector had taken any action under clause (a) of sub-section (1), sub-section (2), sub-section(4) or sub-section (6) he shall call one or more person to be present at the time when such action is taken and take his or their signatures. In this case, it is clear that place of occurrence is public place and there are several witness but Food Inspector did not call any witness, who were present on the spot. So in this case, compliance under Section 10(7) of P.F.A. Act is not done by Food Inspector. It is the mandatory provision to call public witness and obtain the signature at the time of taking the alleged sample. So on this ground accused-revisionist is also liable to be acquitted.
12. In the above circumstances, benefit of doubt go to the revisionist, hence revision is, accordingly, allowed.
13. Order of conviction and sentence is set aside and revisionist acquitted against the charge under Section 7/16 of P.F.A. Act. He is on bail and need not to surrender. His bail bond is cancelled and surety discharged. Fine if deposited, be returned.
14. The office is directed to transmit back the record of Lower Court with a copy of judgment and order of this Court for immediate compliance.
Order Date:- -28.02.2019 Vibha Singh