GARIBAN SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Although limited rule on the question of sentence only was issued in this base and it should be respected, yet feel it necessary in the interest of justice to hear and dispose of this case on its merits since, as will be evident, the authorities who have been vested with the powers under the Prevention of Food Adulteration Act, 1954, (hereinafter to be mentioned as 'the Act'J, have apparently launched the prosecution by contravening the provisions of the Act which calls upon the authority concerned to call one or more person to be present at the time when action under Sec. l0 of the Act is to be taken. The petitioner appears to be a petty shop-keeper dealing in Kirana articles including mustard oil in the Morcha Road, Patna City. It was on 27th July, 1976 that Sri R. P. Verma, a Food Inspector went to the shop of the petitioner along with Sri Indra Chandra Bhushan who was the other Food Inspector of the locality. According to the prosecution story Sri Verma after giving out his identity disclosed his intention to purchase mustard oil for the purpose of analysis by the expert, but the petitioner prevented him from doing so. A case under Sec. 16(i)(c) of the Prevention of Food Adulteration Act was started. Learned counsel appearing for the petitioner submitted that the sentence inflicted on the petitioner was the minimum provided under the Act and therefore, there was no scope to argue for any relief in this direction, but the entire matter requires a reconsideration for the simple reason that the authorities had taken action in this case by over stepping the requirements of the law, It was pointed out that with a view to ensure fairness of the act and to keep it above suspicion, a provision had been made under Sub-section (7) of Sec. 10 of the Act requiring the authorities concerned, before taking any action under Clause (a) of Sub section (1), Sub-section (2), Sub-section (4) or Sub-section (6) of Sec. 10, to call one or more independent person of the locality to be present at the time the actions were taken. Not only this, the sub-section lays down that the signature of such independent person should also be obtained. Evidently in this case the authorities have shown complete disregard to these provisions of the Act. No doubt the complainant Food Inspector, while making statement before the court, gave out that he had requested the persons who had come to the shop at that time to make purchases, to appear as witness in this case, but they did not agree to it. Learned' counsel for the petitioner has rightly submitted that by making such a statement an attempt had been made to show that provisions of the law had been complied with, but whenever such a matter had come up before the courts, it had always been held there must be evidence on record to show satisfactorily that a genuine attempt in this regard had been made. A scrutiny of the evidence on record will disclose that the Food Inspector had never made any effort to call an independent person of the locality and that being so, no order of conviction should have been passed in this case. In my view, therefore, an interference is required in the interest of justice.

(2.) In the result, the application is allowed. The orders of conviction and sentence are set aside and the fine, if realised, shall be refunded. Application allowed.