Sanjeeva Row Nayudu, J.
1. This Criminal appeal by the State is directed against the Judgment and order of the Judl. 1st Class Magistrate, Adoni, acquitting respondents 1 and 2, (hereinafter referred to as the first accused and the second accused respectively) on charges under Section 16(1)(i) read with Section 7 of the Prevention of Food Adulteration Act, (Central Act XXXVII of 1954).
2. The facts of the case relating to this appeal are as follows: The Food Inspector attached to the Adoni Municipality examined in the case as P.W. 1, proceeded to the shop of the first accused who was a dealer in food-stuffs and provisions like ghee etc., and on 29-5-1957 at about 10 a.m. purchased one seer of ghee from the second accused paying Rs. 1-4-0. He obtained a receipt from the second accused marked as Ex. P-l in the case. The ghee that was sold to him was taken out of a tin of ghee which was lying in the shop. Having thus purchased the ghee in question and obtained the receipt Ext. P-1, P.W. l poured the ghee into three bottles in the presence of the second accused, and marked the bottles as Sample No. 28 and sealed all the three bottles with his seal. At the same time, P. W. 1 served on A-2 a declaration Ex. P-2, to the effect that the ghee was purchased for purposes of analysis.
He then delivered one of the sealed bottles to the second accused and the second one he sent to the Public Analyst for examination, and the third one which was kept with P. W. 1 himself, was later produced into the Magistrate's Court and marked as M. O. 1. It is the case of the prosecution that the first accused is a licensee for the sale of ghee in his shop No, 14/277 as per the yearly demand list prepared for the year 1957-58 and marked as Ex. P. 4. Ex. P. 3 is the report of the analyst who had examined one of the three bottles that was sealed and marked as sample No. 28 by P. W. 1 as above stated which established that the ghee sample contained 40 per cent of fat not derived from milk or cream and consequently was adulterated. The Public Analyst also found the said bottle marked as sample No. 28, to be properly sealed and fastened and that the seal was in tact and unbroken when he received it. A complaint was accordingly filed by the Food Inspector in the Court below, whose decision thereon is the subject of the present appeal.
3. In support of the prosecution, P. W. 1 the Food Inspector and P. W. 2 the Sanitary Maistry of the Municipality who was with P.W. 1, at the time of the purchase of the ghee in question and the sealing of the bottles, were examined.
4. The first accused in his defence stated that he was not present at his shop at the time of the incident At the same time he admitted that the shop was his and that ghee was sold in his shop. To the further questions put to the first accused, he stated that he has a licence to sell ghee, that he owns the shop in question, that the second accused is his clerk, and that he was not aware as to what was sold in the shop on the particular day in question. The second accused when questioned by the learned Magistrate stated that he did not sell any ghee to the Food Inspector P. W. 1. He however, admitted that he was in the shop of the first accused on that date and was his clerk. To both the accused, all the material facts appearing in the prosecution evidence against them nave been put, including the execution of the receipt Ex. P. 1 by the second accused. No explanation, however, has been offered by either of them in respect of that document.
It is pointed out by the learned Counsel for the accused that the learned Magistrate had stated towards the end of Paragraph 3 of his judgment that the second accused did not know English and that the signature purporting to be that of A-2 in Ex. P. 1 is in Telugu and, therefore, much value cannot be attached to Ex. P. 1, particularly in view of the denial of the second accused of the fact of his having sold any ghee at all to P. W. 1. In this connection it must be remembered that the specific attention of both the accused was drawn to the document Ex. P. 1. Of course, it would have been open to the second accused to have stated that the signature appearing to be his on that document, was not his. It was always open to him to have pleaded that even if the signature were his, as the rest of the document was in English and as he did not know English, he did not know what was contained in the document to which he has subscribed his signature. None of these pleas have been taken by the accused in their statements in spite of specific questions having been put to them. It is not open to Courts of law to assume that certain facts exist which were not spoken to or relied on either by the prosecution or by the defence.
The learned Magistrate after discussing the evidence in the case and after having repelled the objection that the master is not liable for the acts of his servants, under Section 7 of the Act, and having held that there was no difficulty in coming to the conclusion that there was a vicarious liability under the Act of the master for the acts of his servants and that if the facts proved that the servant had sold adulterated ghee at the shop of the master and on his behalf, the master as well as the servant would be liable for the offence, however, acquitted both the accused mainly on following grounds:
1. There was a material discrepancy in the testimony of P. Ws. 1 and 2 as regards the vessel in which the ghee was weighed.
2. The procedure prescribed under Section 10 of the Adulteration Act has not been followed by the Food Inspector because :
(a) he has not seized the stock of ghee presumably the balance of ghee that was left;
(b) No panchanama was prepared at the time of the purchase of the adulterated ghee and no attempt was made by the Food Inspector to take a panchanama;
(c) Section 10(vii) of the Act is a mandatory provision and in the absence of justifying circumstances, the failure to take a panchanama is fatal to the prosecution.
5. I shall now examine the reasons given by the learned Magistrate. As regards the discrepancy pointed out by the learned Magistrate between the evidence of P. Ws. 1 and 2, 1 have no difficulty in coming to the conclusion that there is no such discrepancy. P. W. 1 stated that the ghee purchased was put in a vessel belonging to the accused, but P. W. 2 mentioned nothing about it in his evidence. He merely stated in his cross-examination that they took a silver bowl along with them on that date to the shop of the first accused. This is far different from saying that P. W. 2 stated -
'that they took along with them a bowl and the ghee which P. W. 1 purchased was put in that bowl and weighed.'
Apparently the learned Magistrate was drawing on his imagination.
6. Now, as regards the second ground taken namely that the procedure prescribed under Section 10 of the Act has not been followed in that a panchanama was not recorded in the presence of mediators, there is a decision of this High Court reported in Public Prosecutor v. Narasimharaju, 1958 Andh LT 760 in support of the proposition that the non-compliance with this provision is a curable irregularity. Section 10(7) of the Act reads as follows:
'Where the Food Inspector takes any action under Clause (a) of Sub-section (1), 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.'
It is true that Section 10(7) uses the expression 'shall', which connotes compulsion in the English language, when employed in relation to second and third persons. There is no doubt that the intention of the Legislature in employing this expression is clear, namely that as far as possible, the authority taking action under Clause (a) of Sub-section 1. Sub-section 2, Sub-section 4, or Sub-section 6 shall call not less than two persons to be present at the time when the action was being taken and take their signatures. There is nothing to show that a panchanama should be prepared, although presumably the signatures of the two mediators are to be taken on a panchanama to be prepared at that time, or on some such document evidencing the purchase, seizure, sealing the samples etc.
Having regard to the language employed, there should be no difficulty in holding that the requirements in Sub-section 7 of Section 10 of the Act may be regarded as mandatory. But this itself is not sufficient, When a directory provision is violated, no notice is taken by the Courts; but when a mandatory provision is violated the further question that requires to he determined is whether the violation of the mandatory provision justified the total rejection of the seizure and the action taken by the Food Inspector under the Act on the ground that such seizure etc., are wholly illegal. Mere violation or failure to 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 persona as required under Sub-section 7 of Section 10 is available, then a much less degree of proof may be necessary to establish the seizure etc.
Where such a panchanama or other document is not taken, apart from the blame that would be attached to the Food Inspector for not performing a duty enjoined on him by the Act, a greater degree of proof may be required to justify the conclusion that the seizure in question was true. Hence, the view taken by the learned Magistrate that merely because a panchanama was not taken, that omission is fatal to the prosecution, is wrong; and as the learned Magistrate's order is based on this erroneous view of the legal scope and effect of the provisions of the Act, it requires to be set aside.
The other subsidiary grounds relied on by the learned Magistrate are, in my opinion, too trivial to affect the merits of the case. For instance, it is not obligatory on the part of the Food Inspector to seize the entire stock of ghee, although such a course would have been wise if the ghee was in fact adulterated a fact which was not known to the Food Inspector at the time. The seizure would no doubt have prevented the ghee being sold to any other person. But this has no bearing on the issue that had to he decided in the case.
7. In this case the evidence of P. Ws. 1 and 2 has not been in any way controverted, either by the accused's statements or by the defence evidence which consists of D. W. 1 who claims to have deposited a ghee tin in the shop of the first accused, a stranger to him, as a relation of his to visit whom he had come and whose house was found locked. There is nothing in his evidence to indicate that the ghee tin he was referring to was the tin from which the ghee was sold to P. W. 1. He also claims to have taken back the tin at 11 a. m, apparently in tact. In any case, he did not complain of shortage or that the tin was in any way tampered with or opened. On the face of it, his evidence is unworthy of credence and I have no hesitation in rejecting the same.
8. There seems to be a general impression that every act of a public officer performed in the discharge of his duties must be viewed with suspicion. This is a completely wrong approach. The normal presumption that all official acts are properly performed must he always recognised and given effect to in the absence of evidence to the contrary. In this case, it has been contended by the learned Counsel for the accused, that because the two mediators were not taken and a panchanama prepared, the seizure itself is covered with suspicion. In the absence of any proof or circumstances covering the seizure of the ghee in question, with doubt, there would he no justification for rejecting the prosecution evidence in support of the seizure. If it is the case of the accused that the whole thing was built-up against them, two questions would require to be answered satisfactorily. One is why should P. W. 1 pitch upon A-1 and A-2 for this purpose? Is there any motive? Learned Counsel for the accused fairly concedes that there is none. The second question to he answered is, if this was a built-up case, what prevented the Food Inspector to have brought into existence a panchanama signed by two persons as part of the building-up. It is very easy to cast aspersions on the conduct of public officers but it is rarely that people casting those aspersions, are able, even to a remote degree, to establish the same.
9. A decision of the Madras High Court reported in Raju Konar, In re, : AIR1959Mad118 , has been cited in support of the argument that as the provisions relating to the Panchanama and the mediators have not been complied with, the conviction of a person under Section 10(7) read with Section 16(1)(i) of the Act is not sustainable. I have examined this decision carefully. The facts of that case are totally different, as the seizure of milk which was proved to be adulterated was done at a police-station by stopping a milk-vendor who was proceeding on a road. If this decision is to be regarded as an authority for the proposition that because the provisions of Section 10 Sub-section (7) are mandatory and, therefore, a failure to comply with the same would ipso facto involve the setting aside of a conviction under Section 16(1) of the Act, I respectfully disagree with that decision.
I have already sufficiently made clear in the above paragraphs my reasons for holding that such non-compliance cannot be regarded as fatal at all to the prosecution. At the same time, I cannot but observe my concern of the failure of the Food Inspector in this case to comply with the plain provisions of the statute under which he purports to be exercising jurisdiction. Such carelessness, and it I may say so, callousness, is unbecoming of the conduct of responsible officers entrusted with the obligation of performing the duties of a public office. I fully endorse the observations of my learned Brother Mr. Justice Basi Reddy in 1958 Andh LT 760, in this behalf, strongly deprecating the practice of public officers, whether through negligence or through wilful default, failing to follow the clear provisions of the statute.
10. In the circumstances of the case, and having regard to the erroneous view taken by the learned Magistrate with reference to the provisions of the Act and as his appreciation of evidence is grossly perverse and unreasonable. I have no hesitation in setting aside the finding of acquittal in this case. I am satisfied, that both the accused are guilty of the offences with which they have been charged and accordingly find both the accused guilty under Section 16(1)(i) of the Act. In view of the fact that this is only a first offence, and at the same time bearing in mind that food adulteration has been on the increase in this country, and it certainly should be put down with a strong hand, in spite of the difficulties involved. I consider that a sentence of fine would meet the ends of justice, in this case. I accordingly sentence the first accused to a fine of Rs. 500/- and in default of payment of fine to suffer one month's rigorous imprisonment and sentence the second accused to a fine of Rs. 50/- and in default to undergo, one month's Rigorous Imprisonment. Order accordingly.