FOOD INSPECTOR CHALAKUDY MUNICIPALITY Vs. PRABHAKARAN

JUDGEMENT

(1.) CRI. R. P. 96 of 1980 came up in the first instance before T. Chandrasekhara Menon, J. who referred it to a Division Bench and the Division Bench referred the matter to the Full Bench since a question of law of considerable importance touching the interpretation of Rule 9-A of the prevention of Food Adulteration Rules is said to arise in the revision. The same question arises in Crl. Appeal No. 284 of 1979, which came up originally before Kader, J. , and on reference by the learned Judge the Division Bench took Up the matter. That too was referred to a Full Bench by the Division Bench. In that case a further question arises, namely, the interpretation of Sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, 1954. It was argued before the Division Bench that in the light of the decision of the Supreme Court in Shah Ashu Jaiwant v. State of Maharashtra such a question arose for consideration. The questions that we have to decide in these cases may be formulated thus: 1. Is the obligation of the Food Inspector to take signatures of one or more persons called to be present at the time action was taken by him met by taking signature on the mahazar prepared by him? What would be the consequence if the Food Inspector fails to call one or more persons to be present or fails to take his or their signatures under Section 10 (7) of the Act? Whether the obligation of the Local (Health) Authority to forward a copy of the report of the result of analysis in Form III immediately after the institution of prosecution envisaged in Rule 9-A of the Rules discharged by sending it not necessarily on the same day Or the next day but reasonably soon thereafter?

(2.) THE first two questions are allied and therefore we consider them together. The obligation cast on a Food Inspector under Section 10 (7) to call one or more persons to be present at the time he lakes action is to lend credibility to his evidence and the obligation to have the signatures of those present to be taken is only to enable him to prove, if challenged, that the action was done by him in accordance with law. Since the Food Inspector functioning under the Act would necessarily be a person interested in getting conviction in the case it would be unsafe generally to rely on his sole evidence to enter a. conviction. Even if there are irregularities in the mode or manner of taking action under Section 10, when he deposes as a witness in court in support of the case charged by him he would not normally speak to a case of such irregularity. Any witness who is very intimately interested in the prosecution such as the peon of the Food Inspector who accompanies him, though he may have witnessed the action taken by the Food Inspector and may have even participated in such action by assisting the Food Inspector, cannot be an independent witness since his version would also be coloured as he would also be interested in furthering the prosecution case. That is the reason why the statute expects the Food Inspector to be prudent in calling proper witnesses to his action so that their evidence may be available to a court for assessing the regularity of his conduct in taking samples under the Act. It may happen that he may call witnesses to be present. But if he fails to take their signatures he may not be able to prove that they witnessed the action. If such persons are cited as witnesses it is likely that they may not support the prosecution, or even if they support, their evidence may be challenged as that of persons who were really not present at the scene. The requirement of Section 10 (7) is therefore one which prudence should dictate compliance with by a Food Inspector lest he runs the risk of the case being thrown out of court for want of independent evidence. The question argued before us by learned Counsel Sri. P. V. Avyappan in these cases is that the Section is mandatory and any violation of the provisions of the section, as for instance by failing to call independent witnesses or failing to take their signatures, could be fatal to the prosecution and there can be only one consequence, namely, that of acquittal of the accused.

(3.) LEARNED Counsel further con-lends that Section 10 (7) having not specifically referred to the papers on which the signatures of the witnesses are to be taken it must necessarily follow that these must be taken in all papers prepared by the Food Inspector on the spot. According to counsel such signature must be taken on the packets of the samples sealed by the Food Inspector after sampling, on the voucher prepared by the Food Inspector for the signature of the party selling the Food and the notice to be issued by him under Section 11 (i) (a) of the Act.