MAHMOOD Vs. STATE OF U.P.

JUDGEMENT

(1.) Revisionist Mahmood has been convicted under Sec. 7/16 of the Prevention of Food Adulteration Act and sentenced to rigorous imprisonment for six months and a fine of Rs. 1000.00 in default of payment of fine to undergo rigorous imprisonment for four months.

(2.) According to the prosecution the revisionist was found selling adulterated buffalo milk on 5-11-1977 at about 9 A.M. at Cane Centre. Garina, Police Station Howana and a sample was taken by the Food Inspector. Vide the Public Analyst's report the sample was found to have 7.5 per cent fat content as against the prescribed 6 per cent and non-fatty solid content 8.3 per cent as against the prescribed 9 per cent. Thus there was an excess of 1.5 per cent in the fat content and a shortage of .7 per cent in the non-fatty solid content. Pending trial the sample was also sent to the Central Food Laboratory. According to their report the fat content came to be 7.7 per cent and the non-fatty solid content to be 8.5 per cent. Thus on this report the fat content excess increased to 1.7 per cent while the non-fatty solid content deficiency was reduced to .5 per cent. The courts below have found the prosecution case proved and convicted and sentenced the revisionist.

(3.) Two points were pressed in revision. Firstly the Food Inspector did not comply with Sec. 10(7) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The pertinent facts in this respect are these. The notice in form 6 and the receipt for the price of the sample bear the signatures of Dharam Pal Singh and Prem Chandra Kulshresth as witnesses. The Food Inspector spoke of obtaining the signatures of two witnesses. He admitted during the cross-examination that both these persons were attached to the Primary Health Centre, Mawana, where he was posted as Food Inspector. Dharam Pal Singh was a vaccinator while P.C. Kulshresth was a T.H.E. (T. Head Educator). He admitted that Kulshresth had gone with him but Dharam Pal Singh met him on the spot. The accused's case was that his milk was checked but it was not for sale and he was taking it to the dairy. The learned counsel contends that as both the witnesses were attached to the Primary Health Centre to which the Food Inspector was attached, they cannot be regarded independent and there was, therefore, a failure to call independent witnesses. In Ram Lubhaya Vs. Municipal Corporation of Delhi and another, 1974 FAC 102 , the Supreme Court Laid down that the obligation of the Food Inspector was to call one or more persons to be present when he takes action. Therefore the argument that one of the persons called was not independent, cannot bear on the legality of compliance of Sec. 10(7) of the Act, it can only effect the credibility of the witness. In the present case there was no cross-examination of the Food Inspector to show that Dharam Pal Singh was not an independent witness. It is not possible to agree that the every one attached to the Primary Health Centre must be held to be non-independent as a witness for the purposes of Sec. 10(7) of the Act. Dharam Pal Singh was admitted to be a vaccinator whose duties would ordinarily have no concern with the Food Inspector. The other witness Kulshresth admittedly had accompanied the Food Inspector. No further material was elicited to clinch that Dharam Pal Singh could not be regarded as an independent witness and that drafting him as a witness when other independent persons were admittedly available should be regarded as non-compliance of the provisions of Sec. 10(7) of the Act. All the more so when considering the admission of the accused that he was taking the milk and sample was taken, the only defence was that the milk was not being sold but was being taken to the dairy. He had also stated that he had been doing milk business for the last about two months only. In the circumstances, I find no force in the contention that the prosecution or trial or conviction is bad because of non-compliance of Sec. 10(7) of the Act.