Ranganatha vs State

A.S. Pachhapure

The revisionist has challenged the concurrent findings of his conviction and sentence for the offence punishable under Sections 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 [hereinafter called as "the Act" for short].

The facts reveal that on 30.01.2003 at about 11.20 a.m., H.B. Shivakumar-P.W. 1, Food Inspector, Chitradurga Taluk visited the shop premises of the revisionist at Bharamasagara and found pockets of Parimala coffee Powder without mentioning the manufacturing date, expiry date, batch number and year of manufacture on the packets. Therefore, he seized the pockets in Form No. 6 and by sending one pocket to the chemical analyst for report, which is at Ex.P5 and secured the sanction EX.P6 and lodged a complaint against the revisionist.

The trial Court after recording the evidence of the prosecution and the statement of the accused convicted the accused for the aforesaid offence and ordered him to undergo imprisonment for 3 months and to pay a fine of `300-00. An appeal filed against the conviction was dismissed on merits. Thereby, the accused approached this Court challenging the conviction and sentence.

I have heard the learned counsel for the revisionist and also the learned High Court Government Pleader.

It is the contention of the learned counsel for the revisionist that the mandatory provisions of Section 10(7) of the Act have not been complied with and no proper sanction was obtained to prosecute the revisionist and therefore, he claims that the conviction and sentence recorded by the Courts below is illegal and erroneous. Further, he submits that the evidence of the Food Inspector alone without any corroboration cannot be a base for conviction.

The learned Government Pleader has supported the Judgment and Order of conviction and sentence.

So far as the compliance of Section 10(7) of the Act is concerned, it is the submission of the learned counsel that the provision is mandatory and if it is not complied and it is fatal to the case of the prosecution. The said provision is extracted hereunder for the sake of convenience:

Powers of food inspectors.-

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(7) 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.

As could be seen from the provision, it provides that the Food Inspector shall call one or more persons to be present at the time when such action is taken and take his or their signatures. Use of the word "shall" indicates that the provision is mandatory. But it is well-known and recently observed by the Hon'ble Supreme Court that in these days, no public witness want to be a witness in any criminal case just to avoid his own skin and make himself free from all botheration. Under the circumstances, solitary evidence of the Food Inspector is sufficient for recording the conviction against the accused/revisionist inspires confidence.

But, anyhow, it is necessary to note that a mandatory provision is incorporated in the statute and therefore, it was necessary for P.W.1 to seize the pockets in the presence of an independent witness and obtain his/her signature on the mahazar. Anyhow, as could be seen from the evidence, in the mahazar-Ex.P3, an endorsement is made by the Food Inspector that the persons present have refused to put their signatures so also he mentioned the reason that the revisionist also refused to put his signature on the mahazar. In the context of this endorsement on Ex.P3, if the evidence of P.W.1 is seen he states that at the time of drawing mahazar, 3-4 persons from the public were present. But, the revisionist and the said persons who were present at the time of mahazar refused to put their signatures on the mahazar. In the cross-examination, he admits that the shop of the revisionist is situated in a busy locality and a suggestion has been made that there was no difficulty for the Food Inspector to obtain the signature/s of the independent witnesses. He further submits that at a distance of about 50 ft. from the shop of the revisionist there is a Government Hospital. So, as could be seen from the evidence of P.W.1-Food Inspector, though the persons present at the shop refused to put their signatures, he did not make any endeavor to secure the independent witnesses from out-side. The scrutiny of his evidence does not reveal any such effort on his part to secure the independent witnesses.

Reliance is placed on the decision of the Kerala High Court, reported in The Food Inspector Vs. M.V. Alu and Another, , wherein it is held:

Sub-sec (7) of S. 10 of the Prevention of Food Adulteration Act (1954), is only intended as a safeguard to ensure fairness of the action taken by the 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 of attestation, it could be said that he violated S. 10(7). However, when independent persons available did not care to oblige him in spite of his "call", he cannot be said to have violated S. 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 S. 10(7) is violated. In such a contingency, nothing prevents the uncorroborated evidence of the Food Inspector being accepted, if found acceptable.

So, if the Food Inspector had made an earnest attempt to secure the presence of the revisionist and if he is not successful, it cannot be said that Section 10(7) of the Act is violated. But, in case if he does not do any such effort and in a casual way, makes an endorsement on the mahazar and states in his evidence that persons present did not agree to put signature on the mahazar itself is not sufficient to state that the provisions of Section 10(7) of the Act are complied.

The High Court of Himachal Pradesh had an occasion to consider a case, wherein the Food Inspector associated P.W.3-Mehar Chand in the process of seizing the sample. Said Mehar Chand Lal was admittedly, an employee of the Health Department and, therefore, cannot be said to be an independent witness. No independent witness were available on the spot for being associated in the process of taking the sample and it was not the case of the prosecution that the Food Inspector had made any effort to secure some independent witness, but could not succeed. The Food Inspector admitted in his evidence that close to the shop of the accused there are four-five other shops including "Maniyari" shop and tailoring shop, who did not deal with the food articles, they could be the independent witnesses and could have been called upon by the Food Inspector to be present for taking the sample. It is under these circumstances that the High Court held that there is non-compliance with the provisions of Section 10(7) of the Act and it is fatal to the case of the prosecution.

It is not in dispute that P.W.1-Food Inspector did not go out-side the shop premises to secure independent witnesses though he admitted in the evidence that it was a busy locality and that there is a Government Office an a distance of about 50 steps from the premises of the revisionist. So, this inaction on the part of P.W.1 and a casual endorsement on the mahazar that the witnesses present there did not agree to sign despite his request cannot be said to be an earnest effort on his part to secure an independent witness for the signature on the mahazar.

The Apex Court in the case of Babu Lal Hargovindas Vs. The State of Gujarat, held that the trial is not vitiated on amount of non-compliance with the provisions of Section 10(7) of the Act, it may affect the evidentiary value of the evidence of the Food Inspector in given cases. If the Food Inspector is believed, his evidence alone can be relied upon to prove that the sample was collected in accordance with the law.

So, in the context of the principles laid-down by the Apex Court, even if there is non-compliance with the provisions of Section 10(7) of the Act, ultimately it is the evidence of the complainant-P.W. 1, it has to be looked into to find out as to whether it is proper to inspire confidence on the evidence of the Food Inspector so as to Award conviction.

Now as could be seen from the evidence of P.W.1-Food Inspector, he stated that on 30.10.2003 at about 11.20 a.m., he went to the shop of the revisionist and had purchased 9 pockets of Parimala Coffee Powder weighing 50 gms. each. He paid the charges of `5-00 per pocket and obtained the signature of the revisionist on the receipt. This fact is not disputed in the cross-examination of P.W.1 and the receipt has been produced at Ex. P2. There is signature of the revisionist on this document. Thereafter, P.W.1 prepared 3 sample pockets from the 9 seized pockets, each sample weighing 150 gms. and sent a sealed sample pocket to the analyst and the remaining 2 pockets to the Local Health Authority. The report of the public analyst has been produced at Ex.P5 and the sample sent was examined. It is opined by the public analyst that the sample is not adulterated, but misbranded as the pocked month, year or batch number is not printed/mentioned on the pocket. So, visit of P.W.1 to the shop premises of the appellant is not in dispute, so also taking of the samples. In such circumstances, when the evidence of P.W.1 can be relied upon, in the considered view of this Court, non-compliance of Section 10(7) of the Act is not fatal to the case of the prosecution.

The prosecution has examined P.W.3-Dr. P.S. Veerabhadrappa, to whom the request was made to grant sanction to prosecute the revisionist. He states in his evidence that on perusal of the records, he found that the coffee powder in the pockets stored by the revisionist was misbranded and therefore, he granted sanction-Ex.P6 to prosecute the revisionist. The perusal of Ex.P6 reveals the signature of P.W.3 and he has referred to all the facts pertaining to seizure of the coffee powder pockets and also the report submitted by the public analyst and having been satisfied from the material placed and from the said material has granted sanction. In the circumstances, I do not find any error or illegality in the sanction order-Ex.P6.

Both the Courts below have taken into consideration the facts and circumstances and have rightly come to the conclusion that the revisionist has committed an offence punishable u/s 16(1)(a)(i) of the Act and ordered minimum sentence provided. The scrutiny of the evidence and the findings of the courts below do not reveal any glaring error or inherent defects in the proceedings. In that view of the matter, I am of the opinion that the revisionist has not made out any grounds to warrant interference in the conviction and sentence ordered by the Courts below.

In the result, the revision petition is dismissed.