PUBLIC PROSECUTOR A P Vs. GANAPAVARAPU VENKATA NARASAYYA

JUDGEMENT

(1.) The sole accused in the case was tried for an offence under Section 7 and 2 (ix) (j) read with section 16 (1) and Rule 29 of the PREVENTION OF FOOD ADULTERATION ACT, 1954 and the rules framed thereunder in C. C. No. 163/67 and acquitted by the 1st additional Munsif Magistrate, Visakhapatnam The appeal is by the Public Prosecutor.

(2.) It is alleged that when P. W. 1 along with P. W. 3 visited the shop of the accused at door No, 21-29-3 in Ganneru Veedhi, Visakhapatnam on 29-8-1966 at about 12-30 P. M, the accused was in his shop and had exposed redgram dhall and some other food articles for sale. Suspecting the redgram dhall to be adulterated, he called the mediator P. W. 2 and in his presence he purchased 350 grams of redgram dhall from the accused form 0-31 ps. after serving a notice copy of which is Ex. P. 1. In token of paymeat. he obtained the receipt, Ex. P. 2. Ex. P. 3 is the statement of the accused recorded by P. W. 1 in the presence of P. Ws. 2 and 3, The redgram dhall which was purchased was put into three clean empty bottles They were sealed and affixed with lables No, 344 for purpose of identification. One snch bottle was delivered to the accused and one sent to the Public Analyst under the original of Ex. P. 4. The Public Analyst issued the report, Ex. P. 5 sta'ing that the sample was mishranded as it contains artificial water soluble yellow colouring matter derived from coal tar. The third bottle was sent to the court In support of the complaint, the Food Inspector, P.W.1 Sanitary Maistry, P. W. 3 who accompanied P. W. 1 to the shop of the reused as also the mediator, P. W. 2 were examined. P. W. 4 is the Food Inspector who has filed the present complaint, The accused denied the offence and stated that the Food Inspector never visited his shop and never purchased any redgram dhall from him and never gave any sample to him, When examined, P. W. 2 the mediator turned hostile ai>d stated that the samples were not drawn in his presence, He bad admitted having signed, Ex. P. 2, the receipt passed bv the accused for the purchase of 'the sample and Ex. P. 3 the statement of the accused recorded by P.W.1, The learned Magistrate came to the con 'usion that there was no independent evidence to prove the sale effected by the accused and to the taktng of samples by P. W. 1 and on that account, acquitted the accused.

(3.) The learned Publi Prosecutor very strenuously urges that what all Section 10 (7) of the Act requires is that the Food Inspector shall call one or more persons to be present at the time when action under Clause (a) of Sub-section (1), Sub-Section (2) sub-section (4), or Sub-Section (6) is taken by him. This has been complied with in this case by purchasing redgram dhall from the accused and putting the sample in Ibiee different bottles and preparing the mediator nama in the presence of P. W, 2. Merely because P. W. 2 has turned hostile the accused cannot be acquitted. The evidence of P. Ws. 1 and 3 and Exs. P 2 and P. 3 prove the offence against the accused beyond all reasonable doubt. I find myself in agreement with this contention No doubt P. W, 2 has stated that the samples were not taken in bis presence but he admits having affixed his signature to Ex. P.2 the receipt given by the accused ia token oi having received the price of redgram dhall sold to P.W.1, He has also signed the statement of the accused which is Ex. P, 3, A perusal ot the said to documents discloses that P.W.1, P.W.3 and P.W.2 were present when notice Ex. P. 1 was served on the accused and when the accused sold the redgram dhall to P. W. 1 and received 0-31 P.1 towards the purchase made by P.W.1. Ex. P.3 also discloses that this dhall was purchased by P. W. 1 in the presence of P. Ws. 1 to 3 and was put in three different bottles and sealed and labelled and that one such bottle was given to the accused and one sent to the public araiyst. This was admitted by the accused in Ex. P. 3, and in token thereof he has affixed his signature. Even now P. W. 2 also admits his signature. In his deposition before the Court also he admits his presence in the shop. The only twist he gives in his statement is that he does not speak to the samples being taken in his presence. He states that he was asked to sign by P.W.1 while producing the three sealed bottles before him. The evidence of P.Ws.1 and 3 is not subject to any infirmities. None have been pointed out by the learned counsel for the accused nor were any noted by the Magistrate. The version of P. Ws. 1 and 3 is not rendered untrne on account of P. W. 2 turning hostile; Their version receives considerable support from Exs. P. 2 and P.3 Ex. P. 2 and P.3 were put to the accused in his S. 342 Cr. P, Ct examination, He has not cbossn to give any explanation thereof, except denying P. Ws. 1 to 3 having come to bis shop and having taken any sample. . He does not offer any explanation as to the circumstances under which he affixed his signature to Exs; P. 2 and P. 3. He merely says that be does not know about those matters. This can hardly be treated as satisfactory explanation of the evidence appearing against him. On this evidence, I am constrained to come to a conclusion that the sale of redgram dhall was effected by the accused in favour of P. W.1 that he made out three samples and sealed them and sent one such sample to the public analyst. From Exs. P. 4 and P.5 it is clear that the public analyst having received the sample sent by P.W.1 found the same adulterated and misbrandedi According to his report, the sample was found to have contained artificial water soluble yellow colouring matter derived from coal tar, and he was of opinion that the sample was misbranded. On this evidence it must be held that the offence against the accused has been made out beyond any doubt. The prosecution under the Prevention of Food Adulteration Act cannot be thrown out merely because one of the mediators has turned hostile. The Magistrate must still examine the other evidence and if the other evidence is acceptable, there is no reason why the accused should not he held guilty. The requirements of Section 10 (7) do not postulate the throwing out of a complaint merely because one of the mediators has turned hostile at the trial. Once on the evidence it is found that the requirement as to the presence of atleast one independent witness at the time when the Food Inspector takes the action contemplated under Sub-Sections 2, 4 and 6 of Section 10 is complied with, then the complaint cannot bp thrown out on the ground that such independent witness has turned hostile at the trial. In this case, I am convinced that P. W. 2 was present at all material times in the shop of the accused. Therefore, the finding of the Magistrate is set aside and the accused is found guilty of the offence under Sections 7 and 2 (ix) (j) read with section 16 (1) and rule 29 of the Prevention of Food Adulteration Act.