FATEH BAHADUR SRIVASTAVA Vs. STATE

JUDGEMENT

(1.) This is a revision against the judgment of Sri Kamleshwar Nath, Sessions Judge, Lucknow, convicting and sentencing the revisionists to six months rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to undergo further rigorous imprisonment for six months, under Section 7/16 of the Prevention of Food Adulteration Act.

(2.) On 18-7-1977, Food Inspector R. K. Srivastava (P. W. 1) took sample of refined groundnut oil from the shop of Shiva Mangal Prasad Misra accused (D. W. 1) at which Fateh Bahadur Srivastava accused (D. W. 2) was sitting. At that time the owner of the shop was not present. After necessary proceedings the sample was sent to Public Analyst who reported that it contained 31% cotton seed oil and, therefore, it was adulterated. After obtaining the necessary sanction both the accused were prosecuted. P. W. 1, R. K. Srivastava Food Inspector and P. W. 2 Keshav Prasad his Orderly were examined as eye-witnesses. The accused denied the charge. Both the accused entered the witness box as D. W. 1 and D. W. 2. Their defence was that they purchased two tins of refined groundnut oil (Triputi Brand) from M/s. Banarsidas panna Lal and both the tins were kept in sealed condition when the Food Inspector opened one of them and took the sample. When the accused requested the Food Inspector to seal both the tins the request was turned down. When the accused moved an application for impleading Banarsidas as accused that application was not decided. The learned Magistrate believed the prosecution case and sentenced the accused to six months rigorous imprisonment and Rs. 1000/- as fine under Section 7/16 of the Prevention of Food Adulteration Act. The matter went up in appeal which was dismissed. Hence this revision. Exhibit Kh. 4 is cash memo of Banarsidas Panna Lal by which two tins of refined groundnut oil (Triputi Brand) were purchased at the rate of Rs. 170/- per tin. Each tin weighed 15 Kg. 400 grammes. In the stock Register Ext. Kha. 5 at item No. 6 there is an entry showing that on 6-7-1977 two tins were purchased from M/s. Banarsidas Panna Lai for Rs. 340/- and payments were subsequently made to the aforesaid firm by the accused. D. W. 2 Fateh Bahadur Srivastava has stated on oath that out of the two tins purchased through Ext. Kha. 4, one of the tins was opened and sampling was done. According to him both the tins were in sealed condition and when he protested that both the tins should be sealed, the Food Inspector did not listen to him. The learned appellate Judge did not discuss the defence evidence. The learned Magistrate has not given any reason for disbelieving the statement of D. W. 2 Fateh Bahadur Srivastava accused-revisionist whose statement on oath is corroborated by the aforesaid two documents. There is no presumption that whatever the complainant states on oath is correct and what accused states on oath is wrong. Without any bias the statements of D. Ws. and P. Ws. should be appraised with the help of well known principles of appraisal of evidence. As already indicated, no reason has been assigned for disbelieving D.W. 2, Fateh Bahadur Srivastava and the documents filed by him. In this context it may be stated that in the original memo Ext. Ka. 1 which was issued to the accused there is no signature of Kesho Prasad (P. W. 2). In Ext. Ka. 1, which is carbon copy and is on the file of the court, there is signature of Kesho Prasad. This makes the presence of this Orderly of the Food Inspector doubtful. However, in this memo it is not mentioned that the witnesses present there refused to give evidence under the circumstances of case the sweet say of the Food Inspector that the witnesses refused to give evidence cannot be accepted. In a case reported in 1982 LLJ 259 Prem Narain v. State, S.K. Kaul, J., observed that it is true that Section 10 (7) of the Act is directory but it is the duty of the Food Inspector to make sincere efforts to procure independent witnesses and if no independent witness is prepared to give evidence this fact should be mentioned in the memo that is prepared at the spot. Since nothing like that was done in that case so the learned Judge observed that due to failure to make sincere efforts to procure independent witnesses, conviction could not be sustained when it was based on the evidence of the Food Inspector and his peon alone,

(3.) It is now well established law that provisions of Section 10 (7) of the Act are directory. But to say this is not to say that Food Inspector need not observe these provisions. It is in his own interest to take independent witnesses else his solitary statement is liable to be rejected, if the witnesses refuse to give evidence it should be noted in the memo. Non-observation of the provisions of Section 10 (7) will not affect legality of action of Food Inspector but only weight of his evidence. What weightage should be given to his solitary statement on oath supported by the documents filed by the accused and attending circumstances and on the other side there is the testimony of the Food Inspector and his peon whose presence is doubtful with a false explanation that witnesses refused to give evidence i.e. no effort made to call independent witnesses. Under the circumstances of the case rejection of defence evidence and documents without giving any reason and believing two interested P. Ws. was unwarranted. So it has been established that two tins were purchased by the accused from Banarsidas and out of one of them sample was taken after opening the sealed tin. Section 19 (2) of the Act lays down that a vendor shall not be deemed to have committed an offence pertaining to the sale of the adulterated or misbranded article of food if he proves that he has purchased the article of food in a case where Hence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer, and that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it- Proviso to Section 14 of the Act lays down "provided that a bill, cash memo or invoice in respect of the sale of any article of food given by a manufacturer or distributor of or dealer in any, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor etc. under the section." However, at the bottom of the cash memo Ext. Kha. 4 the required warranty is printed. In view of all the above, I hold that the order of conviction is illegal and cannot be maintained.