STATE OF ASSAM Vs. JAGAT SINGH

JUDGEMENT

(1.) This criminal revision was suo motu initiated by this Court against the judgment of acquittal dated 15/12/1988 passed by Shri M.M. Sarkar, Chief Judicial Magistrate, Guwahati, in Case No. 1213C/87.

(2.) Jagat Singh, the respondent herein, was prosecuted under section 16(1)(a) of the Prevention of Food Adulteration Act, hereinafter the Act, for alleged sale of adulterated Dohi in his restaurant at Ganeshguri in Guwahati. In that case, the prosecution has examined only one P.W., namely the Food Inspector, to prove the charge against him. Section 10(7) of the Act requires a Food Inspector to call one or more persons to witness his taking of the sample for analysis and this requirement implies that the prosecution has to examine such persons at the trial to prove that the sample was actually taken from the accused. The witness (Food Inspector) stated in his deposition that though he called persons to witness his collection of the sample, none agreed to come to him. The prosecution did not produce the inspection note. The witness also staled that after institution of the case, the local Health authority served a copy of the report of the Public Analyst by sending it in a registered post. The learned Chief Judicial Magistrate, who tried the case, held that in such a case, it would be unsafe to rely on the evidence of the Food Inspector that he called the persons to witness at the time of taking of sample but none agreed to come, unless that fact is corroborated by the no tings in the inspection note. He, therefore held that the prosecution failed to prove the collection of sample from the respondent beyond reasonable doubt. Secondly, he found that the prosecution has failed to prove that a copy of the report of Public Analyst which they have sent by registered post was served on the respondent. He, therefore, held that the prosecution has also failed to comply with the requirement of section 13(2). On these two grounds, he acquitted the respondent.

(3.) Mr. B.B. Narzary, learned Public Prosecutor contends that the fact that the Food Inspector called persons to he witness of his collection of the sample but none agreed to come, is a sufficient compliance of section 10(7) of the Act. In support of this contention, he relied on Ramlabhaya v. Municipal Corporation of Delhi1. There it was held that as the Food Inspector could not. compel the presence of the witnesses, the prosecution was relieved of its obligation under section 10(7) and therefore, non-compliance did not vitiate the trial and that as the Food Inspector was not in the position of an accomplice, his evidence alone, if believed, can sustain the conviction. It was further held that these, however, are not to be understood as minimizing the need to comply with the salutary provision of section 10(7) which was enacted as safeguard against possible allegation of excesses or unfair practices by the Food Inspector. The other case relied on by Mr. Narzary is Public Prosecutor v. Thatha Rao2, wherein it was held that the provisions of section 10(7) are not mandatory but that does not mean that the Food Inspectors are given free hand to bypass them. In the instant case, the trial Court had doubts, as the respondent has denied the taking of the sample from him. Mr. J.M. Choudhury, learned counsel appearing for the respondent has exhaustively met the contentions of Mr. Narzary. He maintains that section 10(7), though not mandatory, has to be complied with to the satisfaction of the Court and stated that Rule 9(e) of the Prevention of Food Adulteration Rules, hereinafter the Rule the Food Inspector has the duty to maintain a record of all inspections made and action taken by him in taking of sample and seizure of stocks and to, submit the copy of such records to the Health Officer or the Food Health Authority as contemplated in this behalf. In view of this rule, he maintained that the prosecution must produce the inspection note to substantiate the evidence in regard to the manner of taking the sample. To support this contention, he relied on the state of Assam v. Radha Oillndustrie. There it was held that where the evidence for taking the sample in a pure bottle was found to be shaky and doubtful and no record is maintained by the Food Inspector as contemplated by Rule 9(e) in respect to his taking of the sample the report of the Public Analyst based on such sample cannot be acted upon. The second case relied on by him is the State of Assam Y., Lok Nath Saha4 wherein it was held that where the Food Inspector could not give the names of persons whom he requested to become witnesses and the Food Inspector failed to secure presence of one or more persons as witnesses, the trial Court has rightly given the benefit to the accused. In the instant case, the prosecution has examined the Food Inspector as the sole prosecution witness. In his evidence, he staled that he called persons to witness for his taking of sample but those persons did not agree to come. The fact that he called the persons to be witnesses must have been recorded in his inspection note which he has to maintain under Rule 9 (e). The inspection note which he submitted to Health Officer should, therefore, have been produced as it would reveal whether he in fact, called persons to witness his taking of the sample but those persons did not agree to come to him. That would have corroborated the evidence of the Food Inspector and satisfied the trial Court. Section 10(7) of the Act is the provision to safeguard against the vindictive prosecution. I, therefore, hold that in a case where the prosecution has examined only the Food Inspector, who in his evidence claimed that he called persons to witness his taking of the sample but that those persons did not agree to come, his evidence on that point must be corroborated by production of the inspection note unless it is admitted by the accused. Non-production of inspection note in such a case would give -rise to adverse inference and that would vitiate the trial. The first contention of the learned Public Prosecutor, therefore, has to fail.