BASANTU Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Basantu, son of Ram Pati, aged 40 years, resident of Lalganj, Police Station Deogaon Bazar, district Azamgarh has filed this appeal against his conviction under Section 7 (v) read with Section 16 (1) (a) (ii) of Prevention of Food Adulteration Act by Sri B. K. Rathi, learned Vth Additional Sessions Judge, Azamgarh on 13. 10. 1977 in Sessions Trial No. 543 of 1976. Appellant was sentenced to undergo one years R. I. a fine of Rs. 1000/- was further imposed upon him; in default he was to undergo three months R. I. ; he was further convicted under the same provisions for exposing for sale Kasri Dal (lathyrous Sativus) and 'sentenced to two years R. I. and a fine of Rs. 2000/- in default, he was to undergo three months R. I. Appellant is a grocer in Lalganj. On 4. 12. 1975 In connection with special drive Sri Jagdamba Prasad Singh, Food Inspector (P. W. 1) posted in Palahani block in Azamgarh District under orders of Dy. C. M. O. (H) raided shop of appellant at 2. 00 P. M. alongwith a Sub-Inspector of Police Sri Achaybar Misra (P. W. 2 ). Appellant was found exposing for sale various food stuffs. Food Inspector disclosed his identity and served notice in form No. 6 (Ext. Ka-1) on appellant; he purchased 750 gms. Arhar ki Dal for Rs. 1. 70 P. 600 gms. Matar Ka Besan for Rs. 1. 30 P and 450 gms Haldi. He obtained separate receipts for payment of price of three articles vide Ext. Ka. 4 to Ka. 6. Each item of aforesaid articles was divided into three equal portions and such part was filled in phial. Labels were affixed on each phial on which necessary endorsements were made and signatures of appellant on each label were procured. Each phial was sealed. One sample phial of each item was made over to appellant regarding which Food Inspector prepared separate memos Ext. Ka. 7 to Ka. 9. Four copies of memorandum in respect of each item were prepared each memoran dum was impressed with the sample seal vide Ext. Ka. 10 to Ka. 12. Remaining two phials of each sample and three copies of the memoran dum were deposited in the office of Dy. C. M. O. (H) on the very date i. e. 4. 12. 1975. One phial of each sample was sent by special messenger to Public Analyst for analysis on 6. 12. 1975 by Sri Chandrama Rai, clerk of the office of Dy. C. M. O, (H) (P. W. 3 ). Report of Public Analyst about all items were received in the office of Dy. C. M. O. (H) which are Ext. Ka. 25 to Ka. 27. Sample of Arhar Ki Dal was found coloured by coalter Metanil, use of which was prohibited. Matar Ka Besan was found containing Kasari flour (lathirus sativus) which contains poisonous substance injurious to human health vide Ext. Ka. 26. Sample of Haldi was found coloured with lead chromate use of which was prohibited. Thus, all the three samples were found adulterated. Food Inspector was directed to launch prosecution against appellant by Dy. C. M. O. (H) vide orders Ext. Ka. 13 to Ka. 15. Food Inspector sent copies of the reports of Public Analyst Ext. Ka. 25 to Ka. 27 to the appellant by registered post on 21. 1. 1976 vide postal receipts Ext. Ka. 16 to Ka. 18. Complaints Ext. Ka. 19 to Ka. 21 were submitted against appellant after procuring necessary sanction for prosecution Ext. Ka. 22 to Ka. 24 respecti vely from Dr. P. B. Ghosh, Dy. C. M. O (H), Azamgarh. Appellant in his statement, denied the sampling; he expressed ignorance about findings recorded by Public Analyst; he alleged his ill-will with Inspector. Prosecution examined three witnesses in support of their case viz Food Inspector Jagdamba Prasad Singh (P. W. 1) who narrated prosecution story and proved documents Ext. Ka. 1. to Ka, 24 aforesaid; second witness who happened to be present at the time of sampling was Sub-Inspector Sri Achaybar Misra (P. W. 2) who signed Ext. Ka. 1. Chandrama Ral (P. W. 3) is clerk of the office of Dy. C. M. O (H), Azam garh, who received these samples and sent them to Public Analyst through special messenger on 6. 12. 1975 and made over reports to Food Inspector on 20. 1. 1976. However, he could not tell the date when these reports were actually received in the office of Dy. C. M. O (H ). No evidence was adduced in defence. Learned trial Judge recorded conviction and sentences aforesaid. Aggrieved by this decision, appellant had filed this appeal. I have heard learned counsel for parties and perused the record. First contention put forward on behalf of appellant was that Section 10 (7) which mandates presence of one or more person at the time of sampling and their signatures, has not been complied with in this case and proceedings are vitiated. It was further pointed out that Food Inspector, in his statement, wrongly alleged that independent witnesses were not present at the time of sampling. It was conceded by Sri Achaybar Misra (P. W. 2) in his cross-examination that when they reached the shop of appellant, some customers were there. Under these circumstances, infraction of aforesaid provisions cannot be countenanced. In this connection reliance was placed upon Shanti Prasad v. State (1978 Alld. Crl. Reports 492) in which it was observed that when independent persons were available and no attempt was made to keep them as eye witnesses and only person who was amenable to the influence of Food Inspector was kept as eye witness, it amoun ted to violation of mandatory provisions of law. It appears in that case Food Inspector did sampling in the presence of one Deo Dutt, from whose shop also a sample had been seized by Food Inspector at that very time. One Shyam Sunder was admittedly present, but not required to attest the transaction and so aforesaid observations were made in that case. Learned trial Judge rightly found that Section 10 (7) of the aforesaid Act has been duly somplied in this case. Sri Achaybar Misra, S. I. was not subordinate to Food Inspector and alleged that when they reached the shop, customers had already left and Food Inspector made attempt to call indepen dent witnesses but they refused to witness the transaction. Under these circumstances, mere fact that sampling was done in a town where witnesses could have been available, could not vitiate these proceedings, especially when testimony of Food Inspector has been fully supported by testimony of Achaybar Misra, Sub-Inspector. In Prem Ballabh and another v. State (A. I. R. 1977s. C. 57) it was pointed out that there was no rule of law that conviction cannot be based on the sole testimony of Food Inspector, Picking up of another witness was simply a rule of prudence and not rule of law. Had it been otherwise, it would be possible for any guilty person to escape punishment by bringing witnesses. The next contention was that Food Inspector was not competent to seize sample as he was posted in Palahani block, district Azamgarh and was incom petent to seize sample in Lalganj town. Food Inspector alleged that in con nection with special drive, he had gone to Lalganj under orders of Dy. C. M. O (H) Azamgarh. Copy of that order is not on record. It was held in Heera Lal v. State of U. P. ( 1981 A. C. C. 106) that Food Inspector of another area taking sample from offender of another area under direction of Dy. C. M. O (H) was not competent to do so and conviction and sentence were set aside. In that case Sri Dharam Deo Yadav, Food Inspector seized sample from apellant in Dohrighat district Azamgarh on 3. 12. 1975 at about 1. 20 P. M. when he was not Food Inspector of Dohrighat area but was Food Ins pector of Johanganj block. It was held that only Central Government or State Government could have empowered Sri Dharam Deo Yadav to seize sample of another area and the order of Dy. C. M. O (H) could not clothe him with such a right. No law to the contrary was cited before me and it is obvious from perusal of Section 9 of aforsaid Act that only Central Government or State Government was competent to specify local areas to which Food Inspectors were appointed. So, this contention is permitted to prevail. It appears that in his examination-in-chief, Food Inspector alleged to have sent all these samples in the office of C. M. O (H) Sri Chandrama Rai (P. W. 3) testified that these samples were sent through special messen ger to Public Analyst on 6. 12. 1975. That special messenger has not been examined in this case. Contention of learned counsel for appellant was that sample seals should have been separately sent by Food Inspector himself to Public Analyst. Mere printed form about specimen impression of the seals being sent separately by Food Inspector direct to Public Analyst was factually wrong and so this was another infirmity which went to the root of the matter. In Gaya Prasad v. State (1979 Alld. Crl. Reports, 497) it was found that compliance of provisions of Section 11 (1) (c) (ii) was obligatory. Aforesaid provisions makes it clear that it was duty of Food Inspector, who took sample to (a) send one of the parts of the sample to Public Analyst and (b) send remaining two parts to the local health authority. In this case Food Inspector sent all the three phials containing samples to Nagar Swasthya Adhikari and the samples which were analysed by Public Analyst are not sample sent to him by Food Inspector but by the office of Nagar Swasthya Adhikari and under these circum stances it was held in Gaya Prasad v. State (supra) that trial was vitiated. This is another infirmity which entitles appellant to an acquittal. The next infirmity is about non-observance of Rule 9 (i) under which Food Inspector was bound to send reports of Public. Analyst to appellant within 10 days of the receipt of samples. In his own statement. Food Inspec tor alleged that sample was received by him on 20. 1. 1976 and he sent copies of report to appellant on 21. 1. 1976 vide Ext. Ka. 16 to Ka. 18 which are postal receipts. This allegation was sought to be supported with statement of P. W. 3 Chandrama Rai. However, Sri Chattdrama Rai admitted that he could not tell the date of receipt of reports of Public Analyst in his office and a perusal of endorsement by Dy. C. M. O (H) Azamgarh Ext. Ka, 13, Ka. 14 and Ka. IS shows that these reports has already been received in that office prior to 13. 1. 1976 and 15. 1. 1976 and the allegation that these were received on 20. 1. 1976 was pulpably false. It was conceded by P. W. 3 that these samples were sent through special messenger in the office of Public Analyst on 6. 12. 1975. Report was drawn on 1. 1. 1976. It is not possible to accept that these reports remained lying in the office of Pubic Analyst uncared for upto 20. 1. 1976 when there is intrinsic evi dence on record to show that these were lying in the office of Dy. C. M. O (H), Azamgarh even on 13. 1. 1976. Under these circumstances, it cannot beheld. that these reports were sent by Food Inspector to appellant within 10 days of their receipt, as was obligatory under the rules. Lastly, there is nothing on record to show that appellant was informed by any authority under Section 13 (2) of the aforesaid Act that if he so desire he could apply to the Court within a period of 10 days from the date of receipt of the copy of the report to get sample analysed by Director, Control Food Laboratory. In Kesar Singh v. State of U. P. (1979 A. C. C. 316) it was observed that aforesaid provision was mandatory and its non-compliance vitiated the proceedings. Thus, the appeal is allowed. Conviction and sentences recorded against appellant are set aside. Appellant is on bail. He need not surrender to his bail bonds, which are discharged. Fine, if paid, shall be refunded to the appellant. .