FOOD INSPECTOR Vs. K K NARAYANAN

JUDGEMENT

(1.) THIS appeal when came up for hearing before the learned single Judge (R. Basant. J.), his Lordship referred the matter to the Division bench for answering the following questions: (i) Whether Section 10 (7) of the Prevention of Food adulteration Act is mandatory. (ii) Whether the fact that one of the witnesses called by the Food Inspector to witness the sampling is an employee of the vendor would vitiate the proceedings against the vendor or the warrantor on the ground that the person called to witness the sampling is not an independent witness as insisted by Section 10 (7 ). "

(2.) THE first accused sold peas dhal to the Food Inspector on 28. 11. 1987. At the time of sampling, PW2 an employee of A1 was called as witness and he signed the mahazar and other documents. THE sample, on analysis by the Local (Health) Authority, was found to be adulterated (Ext. P12 ). THE sample contained 14. 6% of inedible grain (Kesari dhall), consumption of which is injurious to health. Sale of a mixture of Kesari dhal (Lathyrus Sativus) is prohibited under Rule 44 (e) of the Prevention of Food Adulteration Rules, 1955. On second analysis by the central Food Laboratory also it was found to be adulterated by Kesari dhal by 12. 22% (Ext. P3 ). At the time of taking sample itself Ext. D1 bill was produced to show that the first accused had purchased the above from the second accused, a wholesale dealer. THErefore, charge sheet was issued on 18. 9. 1989 stating that as per Ext. P12 report peas dhal contained Kesari dhal and it is violative of Section 2 (1a) (a) and Rule 44 A (e) of the Prevention of Food Adulteration rules, 1955.

(3.) NOW we will look into Section 10 (7) of the Prevention of Food Adulteration Act, which reads as follows: "10. Powers of food inspectors:- (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. . . " In the section the word 'independent' is not used. The only obligation is to call one or more persons to be present at the time when sample is taken and take his or their signatures. The intention of the above section is to ensure the regularity of the action of the Food Inspector and to confirm that the sample was taken from the very same shop. If a peon or a subordinate of the Food Inspector who comes with the Food Inspector stands as a witness there is likelihood of tampering. Therefore, it was held that independent person should be called. Here PW2 was called to sign the mahazar and he was an employee of the shop. He was not a subordinate to the Food inspector. There are plethora of decisions wherein it is stated that persons called as witness could not be subordinate to the Food Inspector. It was also held that if a doctor accompanied the Food Inspector, the doctor can be called as witness as he is not a subordinate to the Food Inspector. Here PW2 was an employee of A1 and A1 has no dispute that sample was not taken from his shop. In fact, A1 during his examination also admitted that sample was taken from his shop by the Food Inspector and there is no dispute. In such circumstances, we are of the opinion that mandate of Section 10 (7) is satisfied here. We also make it clear that it is obligatory to the Food Inspector to call witnesses as mentioned in Section 10 (7) who are not subordinate to him and as held by the supreme Court, the obligation is to call the witness and if he accused to came and sign, that will not make the entire process faulty. But, when the question of sampling is disputed, presence of independent witnesses corroborating the evidence of Food Inspector becomes important. It is obligatory on the part of the Food Inspector to comply with Section 10 (7) but its non-compliance will not vitite the proceedings if regularity of the action of the Food Inspector in sampling the food article is otherwise proved. In fact, in this case, sampling from his shop was not at all disputed by A1. As far as Food Inspector is concerned, employee of R1 is an independent witness.