Anantanarayana Ayyar, J.
1. In C. C. No. 545 of 1963 the Food Inspector of Guntur Municipality filed a complaint against Pasala Jogi of an offence under Section 16(1) read with Section 7(1) of the Prevention of Food Adulteration Act (Central Act XXXVII of 1954) (hereinafter referral to as the 'Act'). The case came to be tried in the Court of the learned Additional District Munsif-cum First class Magistrate, Guntur. The latter acquitted the accused. The learned public prosecutor filed this appeal against the order of acquittal.
2. The prosecution case, supported by three witnesses, is to the following effect. The Food Inspector (P.W. 1) alone with a Sanitary Maistry stopped the accused who was taking milk in a sealed can on a tricycle for sale. P. W. 1 called a Panchayatdar namely, P. W. 2, who was the owner of a tea stall nearby and then purchased one and half Ibs. milk for Rs. 0-45 np. for analysis and observed the necessary precautions by way of putting in three bottles and sealing them etc. The report of the Public Analyst showed that the milk contained 27 percent of added water.
3. When examined about the seizure of the milk from him, sampling etc., the accused admitted the truth of the evidence of the witnesses. He did not examine any defence witnesses.
4. The learned Magistrate acquitted the accused on the following grounds;
(1) There was breach of provision in Section 10(7) of the Act as the complainant failed to call two persons to be present though they must have been available. P. W. 1 contented himself by calling one person to be present.
(2) Accused is after all an employee who brings milk from the milk simply society for sale. It is impossible to conclude that the accused did adulterate the milk after it was supplied to him for sale.
5. Ground No. 1:--Section 10(7) of the Act runs as follows:
'Where the Food Inspector takes any action under Clause (a) of Sub-section 2, Sub-section 4 or Sub-section 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.'
6. Section 103 of the Criminal Procedure Code runs as follows:
'Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.'
The learned Magistrate has found that, besides P. W. 2, there were other people available whom P. W. 1 could have called to be present if he wanted to comply with the requirement of Section 10(7) of the Act. Tt is a finding of fact which is supported by evidence. So, I see no reason to differ from it. The question is whether accused has to be acquitted of the offence because of this contravention though he has admitted the sale of milk by him to P. W. 1 and the truth of the prosecution evidence in that matter. Section 103(1) Cr. P. C. is stricter than Section 10(7) of the Act because it does not contain the words 'as far as possible'. In Radha Kishan v. State of Uttar Pradesh, : (1963)IILLJ667SC , it was observed as follows:- (at page 824)
'So far as the alleged illegality of the seach is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165 Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences, no further consequence ensues.'
Applying that principle, the illegality will not vitiate the seizure altogether. Only the evidence has to be carefully examined regarding the seizure. In the present case, the fact of the seizure of the milk from the accused and the accused's sale of the milk are beyond dispute. Therefore, in the light of the decision of the Supreme Court, the seizure itself does not become illegal. The seizure of the milk is not vitiated.
7. The learned Advocate for the respondent accused has relied on various decisions. In In re, Haju Konar : AIR1959Mad118 the accused refused to sell the milk when requested by the Sanitary Inspector (P. W. 1) and the latter took the accused to a Police station and seized a sample in the presence of the Section 1. and several constables. But, he did not make any attempt to comply with the provisions of Section 10(7) of the Act by taking the attestation of two persons present in a document to be prepared for the seizure. The learned judge (Somasundaram, J.) observed as follows:
'There is no doubt that the milk which the accused (Petitioner) was carrying in his can contained 23 per cent of added water as certified by the Analyst in his report, Ex. P. 3 and therefore it is adulterated milk.' (at page 119)
''.. .. .. I am satisfied that the milk is adulterated. But still for the deliberate disobedience of the mandatory provisions by the Sanitary Inspector I have to reluctantly set aside the conviction and sentence and acquit theaccused.'
It is not clear from the decision as to whatexactly was the plea of the accused and inparticular whether the accused admitted thefacts proved against him.
8. In State v. Mohd. Ibrahim, : AIR1959Ker351 the accused was charged with selling orange crush adulterated with artificial swedener. The accused contended that he, prepared the drink from orange oil sold by a repated manufacturer. If was argued in the High Court that non-compliance with the provisions of Section 10(7) was, if at all, only an irregularity and that, in the absence of proof of any prejudice to the accused, a conviction should have been entered. The learned Judges held as follows: (at page 352)
'. .. . . .this is A case where the Food Inspector acted in flagrant violation of the provisions of the Act. Even this is to he treated as an irregularity. We are not prepared to say that the respondent was not prejudiced by the omission of the Food Inspector to act in accordance with law.'
The learned Judges disbelieved the version of the Food inspector that two persons could not be procured as witnesses, observed that he appeared to have acted in a slipshod manner and declined to interfere with the acquittal of the accused.
9. In Public Prosecutor v. Narasimharaju, 1958 Audit LT 760 Basi Reddy. J.. observed as follows: (at page 761)
'I am not prepared to say that in every case where there is non-compliance with this provision, the conviction would be invalid; in my opinion, it is a curable irregularity. But in the circumstances of this case, I cannot say that the order of the lower Court acquitting the accused for non-compliance with the provisions of Section 10(7) of the Act, was not justified.' He accordingly dismissed the appeal against the acquittal of the accused.
10. In Public Prosecutor v. Yiswanaiham, : AIR1960AP96 , the relevant facts were as follows. The Fond Inspector P. W. 1) purchased some ghee from A-2 in the shop of A-1 in the presence of Samilary Maistry (P. W. 2). A-1 admitted that the shop was his and that the ghee was sold in his shop. A-2 pleaded that he did not sell any ghee to the Food Inspector but said that he was clerk of A-I and was present at the shop. Sanjeeva Row Naidu, J., observed as follows: (at page 97)
'Mere violation or failure in comply with the aforesaid provision, in my opinion, would not by itself, affect the legality or the validity of the act of the Food Inspector, concerned. If a panchanama or other document containing the signatures of two independent persons as required under Sub-section 7 of Section 10 is available then a much less degree of proof may he necessary to establish the seizure etc . . . . Hence, the view taken by the learned Magistrate, that merely because a panchnama was not taken, that omission is fatal to the prosecution, is wrong ........'
The learned Judge set aside the acquittal and convicted the two acceused and impored sentences
11. In Public Prosecutor v. Venkataswamy, (1901) 2 Andh WK 90: (1902 (1) Cri LJ 641), the Sanitary Inspector (P. W. 1) deposed that he called two persons who happened to be there to come and act as Panchayatdars and that they refused to do so and thereby explained as to why he had not taken attestation of the panchayatdars in a document for his purchase of ghee from the accused. The learned Judge observed as follows: (at page 92 of Andh WR): fat p. 642 of Cri LJ)
'How the respondent in this ease could have been possibly prejudiced by the absence of two Panchayatdars at the time of the seizure, passed one's comprehension, because as already noticed, the respondent did not even plead that the staff had not been sold by him to P. W. 1.'
The learned Judge allowed the appeal, set aside the order ot acquittal and convicted and sentenced the respondent.
12. In Public Prosecutor v. T. Seshaiah 1963 (1) Audh WR 296 (AIR 1961 Andh Pra 25), a contention was raised by the accused that there was violation of provisions of Section 10(7) of the Act on the ground that no mediators were called in at the time of seizure. It appears that the accused denied the offence and raised various pleas. Munikannaiah, J. considered the various decisions which I have relerred to above and field as follows: (at p. 300 of Andh WR): Cat p. 28 of AIR)
'I am, therefore, of the view that while compliance with the provisions of Sub-secton (7) is indispensable, exceptional circumstances must be proved to the hilt for bringing a particular case within the proviso creating the exception by use of words 'as far as possible' for making out that the direction is impossible of compliance.'
On merits, the learned Judge observed as follows: (at p. 301 of Andh WR): (at p. 28 of AIR)
'Now, adverting to the facts of the instant ease, there is no evidence whatsoever on record to show that P.W. 1 the Food Inspector, made any effort in the busy locality, in which the shop of the respondent is situate, to secure the presence of two persons. .....When such is the case, I do not consider that when the prosecution has chosen to violate the directions in that sub-section, it is still open to it to sustain the conviction ignoring its provisions which are undoubledly mandatory in those circumstances.'
In an unreported decision in Criminal Appeal No. 37 of 1965 dated 8-2-1965, (AP) Venkalesam, observed as follows:
'The Sanitary Inspector, P. W. 1, deposed that even though be attempted to secure the services of mediators he could not do so. That evidence was given the lie direct by P. W. 3, the Sanitary coolie, that in fact two customers came to that shop, but P. W. 1 never requested them to act as mediators. In view of this evidence, the Food Department cannot expect the Court to accept their evidence. In these circumstances, the order of acquittal passed by the Magistrate is correct, and needs no interference.'
It does not appear from that judgment that the accused admitted the fact alleged against him regarding the adulterated article of food.
13. In Kapoor Chand v. Jabalpur Corporation, : AIR1960MP179 , no witnesses were called such as mentioned in Section 10(7) of the Act and the learned Judge held regarding that provision as follows: (at page 180).
The provision simply regulates the manner in which the Food Inspector is to exercise his power of taking samples, and exereise of power in disregard of the direction is not rendered ineffectual. The language thus shows that the provision for calling two persons as witnesses is directory and not mandatory, and consequently the irregularity in not complying with it in terms would not vitiate the whole trial.' But the learned Judges also observed that
'nothing has been brought out in the cross-examination of the Food Inspector (P. W. I) to establish that it was within his power to call any two persons and yet he did not do so.'
14. In State of Mysore v. Udipi Co-op. Milk Society, AIR 1960 Mys 80, it was held by a Division Bench of the Mysore High Court that a contravention of Section 10(7) of the Act did not per se vitiate the prosecution and that the essential test is one of prejudice to the accused apart from the reliability of the evidence adduced.
15. In the result, the decisions in : AIR1959Mad118 (supra) and : AIR1959Ker351 , (supra) held that the provision in Section 10(7) of the Act was mandatory. The former decision held that the failure to observe that provision would vitiate the trial though on merits the seizure of the adulterated foodstuffs from the accused is clearly proved by the evidence to be true. But it does not appear in that case that the accused admitted the seizure by the Food Inspector concerned from him (accused). In : AIR1960MP179 , it was held that the provision in Section 10(7) of the Act was directory and not mandatory. So far as the decisions in Andhra Pradesh are concerned, it has been held to the effect that the provision in Section 10(7) was not mandatory but, all the same, it was the duly of the officer who seized the articles to observe the provisions in Section 10(7) and, that if there was flagrant violation of that provision and if the trial Court acquitted a person on that ground, the High Court would not interfere with that acquittal. In view of the observation of the Supreme Court in : (1963)IILLJ667SC , the illegality of the seizure in not complying with the provisions in Section 10(7) of the Act has the result that the Court will be inclined to examine carefully the evidence regarding seizure and no further consequence ensues. But, in this case, the fact that the accused was in possession of the milk and that he sold it is admitted by him. So, there is no room to doubt the fact that the milk was seized from the accused and was sold by him. I, therefore, hold that the act of the Food Inspector in getting only one mediator and failing to get two mediators does not mean that the sale and seizure cannot be acted upon for the purpose of finding the accused guilty. The first ground it not tenable.
16. The learned advocate for the respondent-accused contends that the latter is entitled to the benefit of the proviso to Section 17(1) of the Act on the ground that it is clearly proved in the evidence that the accused took the milk with him in a sealed can and that, therefore, he exercised all due diligence to prevent the commission of offence. Section 17 deals with cases where an offence has been committed by a company and the liability of the person who, at the time of the offence, was in charge and was responsible to the company for the conduct of the business of the company. In this case, the accused is a vendor of the milk on bebalf of the company. In Sarjoo Prasad v. State of U. P. AIR 1961 SC 681, it was observed as follows: (at page 632)
'If the owners of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated Food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision unless he is shown to have guilty knowledge.'
This contention is not tenable. The second ground is also not tenable.
17. I find on the evidence that the accused is proved guilty of the offence as charged in the complaint namely, Section 16(1) read with Section 7(1) of the Act. The acquittal of the accused by the learned Magistrate is untenable. I, therefore, set aside the order of acquittal and allow this appeal.
18. It does not appear from the evidence that the accused had any previous conviction. He was a vendor who was selling milk which was contained in a sealed can. I consider that a sentence of fine will be sufficient to meet the ends of justice and accordingly I impose an amount of Rs. 25 (twenty-five only) and in default to rigorous imprisonment for fifteen days. Time for payment of fine is granted one month from the date of receipt of this order in the dial court.