Mahendra Singh vs State of U.P.

V.N. Misra, J.—This is an application in revision by Mahendra Singh, whose conviction and sentence have been upheld by Shri Jain, IV Additional Sessions Judge, Nainital, u/s 7 read with Section 16 of the Food Adulteration Act.

The prosecution case was that on 13-12-1978 at about 10 a.m. Tilakrai, Food Inspector, visited village Tapera, which was in his jurisdiction and he found the applicant Mahendra Singh selling sweat-meats at his shop. Among the sweat-meats was a variety commonly known as ''Patina''. He suspected it to be adulterated and he gave a notice to the applicant in Form VI and purchased 750 grams of Paisa from the applicant in order to get it examined. He obtained a receipt from Mahendra Singh. Thereafter he divided the sample in three parts, kept it in bottles, which were sealed and one of these bottles was dispatched by the Food Inspector to the Public Analyst. The Food Inspector reported that the sample was colored by aura mine, which was a non-permitted coal tar dye and since such a dye had been used, the sweet-meat prepared was adulterated. The sanction was then obtained of the Chief Medical Officer, Neonatal, and after investigations the applicant was prosecuted and has been convicted as aforesaid.

In this case Tilakrai, Food Inspector, took two witnesses when he took a sample from the applicant. These two witnesses were Bhagwan Das and Shyam Sunder. Of these Bhagwan Das was examined as a witness, but Shyam Sunder was not examined. Since Shyam Sunder was not examined, it would seem that the only independent public witness was not examined and it was on the sole testimony of the Food Inspector and the Vaccinator that it was held that the sample was properly drawn. Section 10(7) of the Prevention of Food Adulteration Act provides that the sample should be drawn in the presence of at least one other person and this has been held to mean that the sample should be drawn in the presence of at least one independent witness. In this case, however, the sample was not proved to have been drawn in the presence of any independent witnesses. Section 10(7) was not, therefore, properly complied with and in such a case the applicant could not be convicted.

This revision is, therefore, allowed and the conviction of the applicant and the sentence imposed on the applicant are hereby set aside. The applicant is on bail and need not surrender. His bail bonds are hereby discharged. Stay order dated 22-7-1980 passed by this Court is hereby vacated.