DISTRICT FOOD INSPECTOR Vs. SURAJMAL AMARCHAND AND ORS.

JUDGEMENT

(1.) THE second Respondent, Shri Dalichand Jain, has been acquired of charge under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act, 1954, shortly, 'the Act', on two grounds, namely, that the seller of the sample could not be shown to be an employee of the accused firm and that the Food Inspector had not followed the mandatory provision by calling at least one witness at the time of taking sample. Both the findings are challenged in this appeal by the Food Inspector.

(2.) AS regards the seller, the evidence of P.W. 1 is that when the Food Inspector, P.W. 1 entered the shop, M/s. Surajmal Amarehand, the first Respondent, the second Respondent Dulichand Jain, a partner of that firm, was present in the shop, and on disclosure of the former's identity and purpose of taking sample of 'papad' the second Respondent agreed to accept notice but instead of taking it himself, he instructed his salesman, Umidmal Jain, to receive the notice and Umidmall accordingly received the same and signed the acknowledgment in presence of P.W. 1 and Babul Chandra Bezbarua, P.W. 2 Ext. 1(2) is Umidmall's signature. At that time the second Respondent was sitting in the gaddi. Umidmall sold 600 gram of papad sample to P.W. 1 at the price of Rs. 1.20 paise which P.W. 1 paid in cash. Umidmall also received one par of the sample as asked by the second Respondent and issued signed receipt, Ext. 2. Ext. 2(1) is Umidmall's signature. In cross -examination P.W. 1 stated that he did not know Umidmall earlier but only on that day on being told he knew that Umidmall was an employee of the first Respondent, M/s. Surajmall Amarchand He did not try to gather from other firms whether or not Umidmall was an employee of that firm. However, P.W. 1 clearly Stated in cross -examination that the second Respondent and Umidmall were sitting on the gaddi; that Ext. 2 showed Umidmall as a vendor and did not show the second Respondent or his firms as the vendor and that he paid the price to mal. P.W. 2 corroborates P.W. 1 by saying that when P.W. 1 introducing himself served the notice on the second Respondent the latter instead of taking the notice, Ext. 1, himself asked Umidmall to receive it, he belong an employee of the shop Umidmall sold the sample, received one part of the sample and signed the acknowledgment (Ext. 2) as well as the label on the sample. P.W. 2 also did not know the second Respondent and Umidmall earlier. Both of them were sitting on the gaddi.

(3.) IN face of the above evidence on record, the trial Court held that it was the duty of prosecution to show first that Umidmall Jain was an employee of the accused firm at that time, but that burden was not discharged. The Court observed that there must be some evidence to show that this Umidmall Jain was the employee and that no attempt was made by prosecution to prove this fact. To our mind the above finding is clearly erroneous as it has been arrived at by overlooking vital. pieces of evidence on record. Apart from the statements of P.Ws. 1 and 2 that both the second Respondent and Umidmall were sitting on the gaddi of the shop, Umidmall received the notice, sold the sample, and received the price and one part of the sample. To signed the notice (Ext. 1), and the receipt Ext. 2; in acknowledgement of receipt of the price and sample as instructed by and in presence of the second Respondent. There was, therefore, no justification for holding that prosecution failed to prove that Umidmall was an employee of the firm and for acquittal of the second Respondent on that ground.