SYED JAFAR ALI Vs. NAVNITDAS

JUDGEMENT

(1.) This appeal filed after grant of special leave is directed against judgment dated 20.12.1982 passed by Shri S.C. Soni, Additional Chief Judicial Magistrate, Burbanpur in Criminal Case No. 812 of 1980 acquitting the respondent of offence under section 7 read with section 16 of the Prevention of Food Adulteration Act.

(2.) The appellant filed a complaint before the learned Additional Chief Judicial Magistrate alleging that on 12-3-1980 he took sample of buffalo milk from the respondent on payment and sent the same to the Public Analyst for examination. From the report of the Public Analyst, it was found that the said sample was adulterated. A copy of the report was sent to the respondent for exercising his rights under section 13(2) of the Act and thereafter, the complaint filed. During the trial, the appellant examined himself and one Narayan, Health Inspector of Municipal Office, besides one R.S. Mishra, Food Inspector, Khandwa and closed the case. Defence of the respondent was that neither he sold the milk sample nor was engaged in that business. He examined one Iqbal Khan, who was witness to Panchnama (Ex. P.3) to prove the same. The learned Addl. Chief Judicial Magistrate, on examination of evidence on record, held that notice (Ex. P.1), receipt (Ex. P.2) and Panchnama (Ex. P.3) are said to have been proved by the evidence of Narayan (P.W. 2), but Narayan does not appear to be a witness to these documents and his name had been interpolated subsequently. Relying on section 10(7) of the Act, the learned Additional Chief Judicial Magistrate found that it was not necessary to have more than two witnesses to these documents. He also found the writing different indicating interpolation. Under the circumstances, he held that evidence of appellant could not be relied upon without any independent corroboration. That is how the respondent has been acquitted.

(3.) After having heard the learned counsel for both sides, it is the considered view of this Court that the conclusion of the learned Addl. Chief Judicial Magistrate is correct and justified and, therefore, the appeal deserves to be dismissed. Under the Code of Criminal Procedure, a person entering into the premises for search or seizure, is required to do so in the presence of two independent persons. It is true that this rule does not apply to the cases under this Act, as specific provision is found therein. Sec. 10(7) requires these documents to be prepared in the presence of more than (one witness. Earlier this provision required at least two witnesses for these documents. A perusal of Exhibit P-1 would indicate that two witnesses had signed, but Later on Narayan (P.W. 2) also signed on its back. The word (Ex. P 2) written at the end of this document appears to have been written by some one else as it is in different hand writing Receipt (Ex. P-2) contains writings of at least two persons. It may appear that the names and addresses of the witnesses are written by Narayan (P.W. 2) and not the person who wrote the receipt. Similarly, Panchnama (Ex. P-3) contains the name of Narayan at the end written in different ink. The manner in which the name of Narayan has been written creates an impression that it was written subsequently. Narayan (P.W. 2) was asked whether he has signed these documents afterwards, but he denied. He, however, admitted that he works in the same municipality where the appellant is employed. Defence witness Iqbal is admittedly one of the witnesses to these documents. He has stated that when he signed the Panchnama (Ex. P. 3), the respondent was not selling the milk. He has also denied that the respondent had not signed these documents in his presence. There is no explanation as to why the appellant did not examine any independent person. Even if Iqbal Khan was not willing to depose in his favour, Sheikh Mohd. Khan the first attesting witness should have been summoned. There is no explanation why he was examined. It is, therefore, clear that oral evidence on record is conflicting. Documentary evidence is suspicious. If under these circumstances, the learned Addl. Chief Judicial Magistrate reached the conclusion that these documents cannot be taken to have been proved in accordance with law, the said conclusion cannot be said to be illegal or incorrect. It has not been disputed that in case these documents are excluded, the prosecution would be illegal and unjustified.