MOOL CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS revision is directed against the judgment of Sh. B. S. Nehra, Sessions Judge, Ferozepur upholding the conviction of the petitioner Under Section 16 (1) (a) (i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the sentence of rigorous imprisonment for six months and a fine of Rs. 1,000/-; in default rigorous imprisonment for three months.

(2.) THE prosecution case, briefly stated, is that on November 24, 1976 at about 9. 00 a. m. Dr. K. L. Issar, exercising the powers of Food Inspector, intercepted the petitioner on the Mall road, Ferozepur, who was then carrying milk in a drum on his cycle. The Food Inspector bought 66 0 mls. of milk from the petitioner after paying its requisite price. The necessary documents were prepared at the spot. After adding the requisite amount of formaline the milk was duly sealed in three separate bottles. One of the bottles was sent to the Public Analyst, who vide his report, Ext. P. E. , opined that the sample contained 3. 4% of milk fat and 9. 1% of milk solids non-fat and declared the sample to be deficient in milk fat by 24% of the minimum prescribed standard. The petitioner was thereafter prosecuted by the Food Inspector. The defence of the petitioner was that he was falsely involved in the case. The prosecution examined two witnesses, namely Dr. K. L. Issar, PW 1 and Karam Chand. Store-keeper as PW2. The learned Magistrate accepted the prosecution case and convicted the petitioner for the charge framed against him and sentenced him as indicated above. This revision application is directed against the confirming appellate decision.

(3.) IT is not disputed that the Food Inspector made a statutory purchase and on analysis the sample has been found to be adulterated. The question canvassed in support of the petitioner is that there has been no compliance of Section 10 (7) of the Act and, therefore, the prosecution is vitiated. Section 10 (7) of the Act provides: Where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4), or subsection (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. Admittedly action was taken in this case Under Section 10 (1) (a) and. therefore, the provision of Sub-section (7) applied. Sub-section (7) underwent an amendment by Central Act 49 of 1964 with effect from 1st of March, 1965. Before amendment, the Sub-section (provided: Where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4), or subsection (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures. Even prior to the amendment there was consensus in Judicial opinion that compliance with the provisions of Sub-section (7) is indispensable. There could, however, be exceptional circumstances for bringing a particular case within the exception covered by the words 'as far as possible'. Courts took the view that obedience to such mandatory direction where it is possible to do so seems to have been intended as an unbreakable rule and the only condition which could admit of an exception was, when the prosecution established that it was not possible.