SUNIL KUMAR Vs. STATE

JUDGEMENT

(1.) THE applicant Sunil Kumar has been convicted under Sec. 7/16 Prevention of Food Adulteration Act for breach of Rule 49 of the Food Adulteration Rules and sentenced to a fine of Rs. 500/- in default rigorous imprisonment for two months. THE char,ge on which he has been convicted was that he was exposing Namkin Samosas for sale in an open Parat uncovered by any lid, wire net or gauze net to protect it from dust, dirt or flies and other insects as required by Rule 49 (3). In past the food inspector had also taken some sample of certain Namkin articles from the shop but these were found by the public analyst to be in order. THE food inspector lad also prosecuted the revisionist for failure to produce a license but the courts below have exonerated him on that charge as the revisionist was able to show that] he did possess a license. This could hardly thave been otherwise for the revisionist's shop appears to be the well known Dal-mooth shop of Aligarh Kunjilal Dalsev Wale. THE defence that Samosas in the rough said in evidence to have been kept over the show case were not for sale and were kept separately there as the same had broken down, has been disbelieved by the courts below and I do not think that finding can be interfered with in revision.

(2.) THE learned counsel however relied upon the legal argument that the inspection by the food inspector is illegal as he did not call any independent public witness as required by Sec. 10(7) for this inspection. THE inspection memo shows that the only witness was Mahavir Singh, Sanitary Supervisor who belonging to the same department is virtually a subordinate of the food inspector and can not be regarded as an independent witness. THEre is substance in the contention. THE Supreme Court in Ram Labhaya v. Municipal Corporation Delhi, AIR 1974 SC 789 categorically laid down that the words one or more persons in Sec. 10(7) must mean one or more independent persons ;and the food inspector ought to try and secure the presence of one or more independent persons when he takes action under one of the provisions mentioned in the said sub-section as provisions of Sec. 10(7) are mandatory. It was elaborated in this decision that the obligation of the food inspector under Sec. 10(7) was only to call one or more independent persons. If he does this but the independent persons are not willing to cooperate the prosecution was relieved of the obligation under the provisions and non-compliance with it in such a case did not vitiate the trial. THE present is however, a case where there is no evidence whatever about any attempt to call any independent witness to the inspection and therefore, the mandatory provisions of sec. 10(7) must be held to have been violated. Nor can this violation be treated as inconsequential because the presence of independent witness might have had a bearing on the defence that the Samosas in question were broken ones and were set aside as not for sale. Babu Lal Hargovindas v. State of Gujrat, AIR 1977 SC 1277 and Prem Ballabh v. State, AIR 1977 SC 56 do not in any way detract from the decision in Ram Labhaya's case about the mandatory duty of the food inspector under Sec. 10(7). THE ratio of these decisions is merely that where independent witnesses were called it is not necessary that they should also support the food inspector at the trial and it is open to the court to believe the testimony of the food inspector alone because he is not an accomplice. THE contingency dealt with by these decisions did not arise in the present case.