RAM MANOHAR Vs. STATE

JUDGEMENT

(1.) The Municipal Corporation of Delhi filed a challan against the petitioner herein for an offence under sections 7/16 of the Prevention of Food Adulteration Act (hereinafter called as the Act) for the alleged sale of adulterated chillies powder. According to the prosecution, the petitioner was selling chillies powder at 1/20 Moti Nagar, Delhi on 25-2-1969. The Food Inspector of the Corporation purchased a sample of the chillies powder from the petitioner and after following the procedure prescribed under the Act, he sent a portion of the chillies powder to the Public Analyst who sent a report to the effect that the chillies powder was adulterated inasmuch as there was 4.54 excess in total ash per cent, 6.64 per cent ash insoluble in dilute Hcl and there was presence of excess in matter to the extent of 50 per cent and in addition, it was dyed with artificial coal tar dye. The prosecution examined 3 witnesses in the trial Court of whom one was a formal witness who merely proved his authority to file the complaint. The other two witnesses consisted of the Food Inspector, Shri R.K. Maun, who purchased the sample of the chillies powder from the petitioner, and another Food Inspector, Shri Balwant Singh, who was present at the time of the said purchase and who also attested the several documents prepared at that time. Another witness by name Raj Kumar, who was also said to be present at the time of the purchase was cited as a prosecution witness but was not examined, as he had left the job which he was holding on the date of the offence and his whereabouts were not known. The two Food Inspectors who were examined in the trial Court testified to the purchase of the chillies powder from the petitioner and also proved the various documents which were prepared at that time and which bore the thumb mark of the petitioner. The petitioner, when examined under section 342 Cr. P. C., denied that he sold any chillies powder to the Food Inspector and stated that the premises bearing No. 1/20, Moti Nagar was in the occupation of one Gur Prashad, that he himself was only a vegetable vendor who was selling the vegetables on the pavenment near the premises No. 1/20, that the Food Inspector seized some chillies powder from the shop of Gur Prashad and that on the request of Gur Prashad's wife, he merely affixed his thumb impression on some papers only as a witness. He examined 10 defence witnesses. D.W. 8 Gur Prashad, who stated that he was the owner of the shop No. 1/20 Moti Nagar, that he was absent from his shop when the Food Inspector seized some chillies powder from the shop, that the Food Inspector subsequently demanded some bribe from him for not prosecuting him and that he gave Rs. 400.00 to the Food Inspector by way of bribe. He proved Ex. D. W. 8/A which, according to him, was a note sent by P. W. 2 to him asking him to meet him at a certain place. D. W. 10, Shri D. R. Nanda, is an handwriting expert. He stated that he compared the handwriting in Ex. D. W. 8/A with the specimen handwriting of P.W. 2 taken in the Court and express his opinion that P. W. 8/A was in the handwriting of P. W. 2. The other defence witnesses stated that they were present when P. W. 2 seized some chillies powder from the shop of D.W. 8 and that the petitioner was merely asked to affix his thumb impression to certain documents prepared at that time as a witness. On a consideration of this evidence, the learned trial Court convicted the petitioner for an offence under sections 7/16 of the Act and sentenced him to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs. 1,000.00 and in default to undergo rigorous imprisonment for a period of four months. The petitioner preferred an appeal to the Court of Sessions against his conviction and the sentence passed against him, but the learned Additional Sessions Judge confirmed the conviction as well as the sentence and dismissed the appeal filed by the petitioner except for a slight modification in the default sentence which he reduced to two months. The petitioner has filed the present revision petition against his conviction and the sentence passed against him.

(2.) The learned counsel for the petitioner objected to the legality of the seizure of chillies powder by the Inspector on three grounds, namely:

(3.) The omission to examine Raj Kumar, the only non-official witness, who was present at the time of the purchase has been properly explained by the prosecution and no adverse inference can be drawn from the omission on the part of the prosecution to examine him. Although in the normal course the prosecution is expected to examine atleast one of the non-official witnesses who was present at the time of the purchase of an article of food from a vendor, the law does not require that in every case such a person should be examined in Court. The law only requires that one or more persons should be present at the time of the purchase of the article and that his or their signatures should be obtained on the documents of seizure. The contention based upon sub-section (4) of section 10 of the Act is wholly untenable. That sub-section reads as follows :