Court No. - 34
Case :- CRIMINAL REVISION No. - 43 of 1994
Revisionist :- Mool Chand
Opposite Party :- State And Other
Counsel for Revisionist :- A.N. Misra,Jeevanjee Srivastava
Counsel for Opposite Party :- A.G.A.
Hon'ble Sudhir Agarwal,J.
1. Heard sri Jeevanjee Srivastava, learned counsel for revisionist, learned A.G.A. for State and perused the record.
2. This criminal revision under Section 397/401 Cr.P.C., has been filed aggrieved by judgment and order dated 23.12.1993 passed by Sri Vijay Kumar Verma, IXth Additional Sessions Judge, Allahabad in Criminal Appeal No. 6 of 1991, Mool Chand vs. State, whereby appeal has been dismissed and judgement and order dated 08.01.1991 passed by Sri S.S.Mishra, Additional Chief Judicial Magistrate, Allahabad in Criminal Case No. 1085 of 1990, State vs. Mool Chand, whereby revisionist Mool Chand was convicted and sentenced to undergo one year rigorous imprisonment with a fine of Rs.2000/- under Section 7/16 (1)(A)(ii) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "Act, 1954") has been confirmed.
3. It is contended that there is a violation of Section 10(7) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”) as there was no independent witness. It has further been contended that there is no compliance of Section 13(2) of Act, 1954, inasmuch as there is no acknowledgment of service of Public Analyst Report and only basis that it was sent by registered post, service of acknowledgment has been deemed sufficient by Court below.
4. So far as non-examination of independent witness is concerned, I find that both the Courts below have recorded the finding that no independent witness was ready and, therefore, authorities proceeded further.
5. A similar aspect has been considered with reference to Section 10(7) of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “Act, 1954”) by one of us (Hon'ble Sudhir Agarwal, J.) in Nathoo Vs. State of U.P. 2016 (3) ALJ 610, as under:
“10. The objective of Section 10 (7) of Act, 1954 is to ensure that actual or genuine transaction of sale of sample and its formalities have been observed. The provision is mandatory in so much so that Food Inspector must make genuine efforts to get the corroboration of one or more persons present on the spot to witness his act of taking sample and completion of other formalities. Once such an effort has been made, but in vain, it cannot be said that there is any non-compliance of Section 10(7) of Act, 1954.
11. Section 10(7) was amended in 1964 and prior thereto there were words "as far as possible call not less than two persons". The words "as far as possible" were deleted by amendment of 1964. It was sought to be argued, therefore, that deletion means that if the independent witnesses do not corroborate the action of Food Inspector in taking sample etc., it shall vitiate the Trial.
12. A learned Single Judge of Kerala High Court in The Food Inspector, Palakkad Vs. M.V. Alu and another, 1991 Cri.L.J. 2174 considered it and in para 2 of the judgment said that sub-section (7) of Section 10 is only intended as a safeguard to ensure fairness of action taken by Food Inspector. What he is obliged to do is only to call one or more independent persons to be present and attest when he takes action. If independent persons were available and even then the Food Inspector did not want their presence or attestation, it could be said that he violated Section 10(7). If independent persons available did not care to oblige him in spite of his 'call', he cannot be said to have violated Section 10(7). The duty is only to make an earnest attempt in getting independent witnesses. If that earnest attempt did not succeed on account of refusal of independent persons, it cannot be said that Section 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable.
13. In another matter arisen from State of Uttar Pradesh itself, a three Judges Bench of Apex Court had occasion to consider this aspect in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and another, 1974(4) SCC 491 and in paras 5 and 6 thereof the Court said:
"5. We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the Sub- section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would 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. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. In Babu Lal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 it was held by this Court after noticing that Section 10(7) was amended in 1964, that non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. The Court observed that this ought not to be understood as minimizing the need to comply with the salutary provision in Section 10(7) which was enacted as a safeguard against possible allegations of excesses or unfair practices by the Food Inspector.
6. As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers 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."
14. From the above it is clear that Apex Court also took the view that what is important to attract Section 10(7) is that the Food Inspector at least should try to secure presence of one or more independent witness when he takes action under any of the provisions mentioned in Section 10(7). Once that has been done, evidence of Food Inspector himself, even if not corroborated by independent witnesses, can be relied if the Trial Court finds it otherwise acceptable. It is not to be discarded only for the reason that independent witnesses have not signed the sample and seizure documents.
15. This Court also considered this aspect in Nagar Swasthya Adhikari Nagar Mahapalika Vs. Mohammad Wasim, 1993 All Criminal Cases 47. Here the Court further said that object of indicating Section 10(7) is to ensure that particular sample is taken from the accused. The object is to keep the act of taking sample above suspicion. Compliance of sub-section (7) of Section 10 is necessary only for satisfying the Court that requisite sample was taken as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking of such sample.
16. Once the efforts have been made by Food Inspector to call for one or more independent witnesses but none agreed or cooperated, then it cannot be said that there is any breach of requirement of Section 10(7) and it will not vitiate the prosecution at all. Here I am fortified by a decision of Madras High Court in Public Prosecutor Vs. Ramachandran, 1993(1) FAC 93.
17. The Apex Court in State of U.P. Vs. Hanif, AIR 1992 SC 1121 said that there is no such law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. His evidence is to be tested on its own merits and if found acceptable the Court would be entitled to accept and rely on to prove prosecution case.
18. Following the above authorities and taking similar view, this Court in Criminal Revision No. 976 of 1989 (Ramesh Chandra Vs. State of U.P.) decided on 11.12.2014 in para 18 of judgment said as under:
“18. It is the duty of Food Inspector to call one or more independent persons to be present at the time of taking sample and once that is done by him it is sufficient but if the witnesses are not ready to come forward and sign the documents the Food Inspector cannot compel them and, therefore, where the attempt has been made but failed, lack of signature by independent witness would not vitiate the trial.”
(Emphasis Added)
6. In the present case, prosecution has clearly proved that an attempt was made to get independent witnesses at the time of taking sample and seizure but since none came forward, hence, Food Inspector proceeded further. Hence the mere fact that independent witness is not there, proceedings would not vitiate.
7. Now, coming to question of non compliance of Section 13(2) of Act, 1954. Both the Courts below only on the basis that Public Analysis Report was sent by registered post, have deemed it to be a sufficient compliance of Section 13(2) though law is that unless evidence is produced to show acknowledgment of receipt by vendor, it cannot be said that there is compliance of Section 13(2) of Act, 1954 and mere evidence of dispatch of notice is not sufficient. This Court in Criminal Revision No. 254 of 1990 (Jugul Kishore vs. State of U.P.), decided on 12.10.2018 said as under:
"20. The principles discerned from the said authority, that in turn, is based on a decision of their Lordships of the Supreme Court and a Full Bench decision of the Punjab And Haryana High Court, clearly are to the effect that mere evidence of dispatch of notice under Section 13(2) of the Act, along with a copy of public analyst's report by the prosecution is not enough compliance, unless there is evidence produced to show acknowledgment of receipt, also. This, of course, would not apply to a case where service is admitted to the accused.
22. The requirement of Section 13(2) of the Act read with rule 9-B (or under the pre amended law rule 9-A) is not about dispatch of notice under Section 13(2) along with a copy of the public analyst's report but service or delivery of such notice and report that would constitute compliance with the mandatory requirement of Section 13(2) as held in Bidyadhar Jena (supra). The requirement about proving service, not just dispatch under the Act, would exclude the applicablity of the general law about good service, based on a presumption under Section 27 General Clauses Act and section 114 Evidence Act. The prosecution have to prove the fact of service by producing evidence aliunde, not just the dispatch of notice, in order to be in accord with Section 13(2). In the present case, admittedly, no acknowledgment card or other evidence, such as, a certificate of delivery of the registered postal cover by the postal department has been placed on record, which in the opinion of this Court would fall foul of the requirement of Section 13(2) of the Act read with the relevant rule in force, at the relevant time. Thus, in the opinion of this court there is no good compliance of Section 13(2) of the Act, for the prosecution's failure to establish service of notice along with a copy of report of public analyst upon the Revisionist envisaged under Section 13(2) of the Act."
8. Learned A.G.A. appearing for State could not dispute the aforesaid exposition of law.
9. In view thereof, since requirement of Section 13(2) of Act, 1954 is mandatory and its compliance has not been made in the present case, the otherwise findings recorded by Courts below cannot be sustained.
10. In the result, revision is allowed. Impugned judgments dated 08.01.1991 and 23.12.1993 are hereby set aside.
11. Certify this judgment to the lower Court immediately.
Order Date :- 31.7.2019 KA