BHUIYADIN AND ANOTHER Vs. STATE

JUDGEMENT

(1.) Bhuiyadin and his son Bhola have been convicted under Sec. 7/16, Prevention of Food Adulteration Act and each of them sentenced to six months' R.I. and a fine of Rs. 1000.00, in default further R.I. for six months.

(2.) The prosecution case was that Bhola, the son owns a Parchun shop in village Madariapur Distt. Fatehpur and on 13-11-1978 at about 12 noon Bhuiyadin was found to be working as salesman on the said shop and was displaying some adulterated Saunf for sale. A sample of the Saunf taken by the Food Inspector was found to contain 2.8% inorganic extraneous matter, 5.2% organic extraneous matter and 1.1% insect damaged Saunf as against the prescribed maximum of 5% extraneous matter of which inorganic extraneous matter is not to exceed 2%. The maximum insect damaged Saunf permitted is 5% and the maximum proportion of edible seeds other than Saunf 1% also 5%. The sample was declared adulterated as the maximum extraneous matter exceeded the prescribed 5% and the inorganic extraneous matter also exceeded the maximum of 2%. Both the courts below have convicted the two applicants, Bhola as the owner of the shop and Bhuiyadin as the person actually offering for sale. The defence that the Saunf had been purchased by the Food Inspector from the wife of Mahadeo, another son of Bhuiyadin, and the signatures of Bhola and Bhuiyadin were obtained when they happened to come there has been disbelieved by the courts below.

(3.) Learned counsel for the applicants has attacked the sample taking of Saunf by the Food Inspector on the ground that Sec. 10(7) of the Act has been violated and no independent witnesses were called. The two witnesses to the sample taking were Sarju Prasad Verma and Satyendra Pal Singh, both departmental witnesses. The Food Inspector in his statement, however, gave out that there were 2-3 villagers present at the spot and he had asked them to become witnesses but they declined to be so. Normally this explanation would suffice for compliance with Sec. 10(7) because the obligation is only to call independent witnesses and not to secure them even if they declined. On the facts of the present case, however, this explanation seems to be unsatisfactory. The noticeable features are that the sample was taken from a village shop and appears to be appreciably free from extraneous seeds and insect damaged Saunf, the maximum prescribed limit for which is 5% and 5% but in this sample were only 0% and 1% only. The adulteration then only consists in organic and inorganic extraneous matter exceeding the prescribed limit. This is a matter bearing on the cleaning of the Saunf seeds before selling them and a little more effort would have made it good quality Saunf. Moreover, this kind of adulteration can be seen at a glance by the custody and can be removed by him with a very slight effort though this would mean some reduction in the weight. Further in a village shop where goods are unlikely to be kept in cover or dust proof containers some dust and other extraneous matter may enter the exposed stuff during the period of exposure also and may go to inflate the percentage of such matter. In this background this would seem to be on the face of it a very mild adulteration case. Yet we find that the Food Inspector prosecuted not only the father but the son Bhola also who is said to have arrived while the sample taking process was going on and in whose name the shop licence is said to have stood. With this picture when we find that one of the two departmental witnesses Satyendra Pal Singh, Vaccinator, who is the only one examined in court was the own son of the Food Inspector the prosecution begins to smack of a personal animus on the part of the Food Inspector against the accused. The mandate to call independent witnesses under Sec. 10(7) can certainly not be said to be fulfilled where the Food Inspector's own son is drafted as a witness even where the public witnesses decline. The other witness Sarju Prasad Verma, as already noted, was not examined and was a departmental employee described as D.H.W. care of Medical Officer, Bhitora. In the circumstances, I would hold that the Food Inspector by calling his own son as a witness in the circumstances of this case violated the provisions of Sec. 10(7) of the Act and the conviction is therefore, unsustainable.