Basi Reddy, J.
1. This is an appeal by the State Government against the acquittal of the respondent of an offence under Section 16 lead with Section 7 of the Prevention of Food Adulteration Act, 1954 The accusation against the respondent was that on 28.5.1959 he hid sold adulterated ghee which had been kept in his retail shop at Door No. 1/187 in Kurnool and was, therefore, liable to be punished under the Act.
2. The plea of the respondent was one denial and he merely said 'I did not commit the offence'.
3. The learned Magistrate who tried the case acquitted the respondent on the sole ground that there had been a 'flagrant violation' of the provisions of Section 10 of the Act inasmuch as the Sanitary Inspector (P.W. 1) when he brought the ghee from the respondent for the purpose of sending it for analysis, did not call upon two persons to he present and witness the proceeding.
4. It is contended on behalf of the State that the learned Magistrate has fallen into a grave error in holding that there had been violation of the provisions of Section 10(7) of the Act and in acquitting the respondent on the ground that he had been prejudiced thereby.
5. The facts of the case, as spoken to by the Sanitary Inspector (P.W. 1), are as follows: The respondent runs a retail shop at Kurnool in the premises bearing No. 1/187 near the No I Town Police Station. On 26.5.1959, P.W. 1 and his 'maistries' went to the respondent his shop at 8 a.m. and demanded a sample of ghee. P.W. 1 told the respondent that it was intended for being sent for analysis. He served a notice on the respondent in the prescribed form and it is Ex. P1. It says:
Prevention of Food Adulteration Act, Form VI under Rule 12-Kurnool Municipality.
S/o. Ramia, 1/187.
I have this day taken from the premises of.situated at 1/187 samples of the food specified below to have the same analysed by the Pubic Analyst, Found selling pure ghee to the public.
Details of food.
Sd/ x x x x
Area Kurnool Municipality.
Dated 18.5.1959 at 8 a.m.
P.W. 1 swore that he called two persons who happened to be there to come and act as 'pan-chayatdars' but they refused to do so. Then he purchased one seer of ghee from the respondent, put it in three bottles and sealed them. He took a cash receipt (Ex. P. 2) from the respondent for having sold the ghee. It reads:
Sd: (in Telugu) Vendor.
Sd: Sanitary Inspector
One of the sample-bottles was handed over to the respondent; one was kept with P.W. 1 and the third one was sent to the Public Analyst for analysis. The Analyst sent his report Ex. P-3 stating that the sample contained 16 per cent of, foreign fat not derived from milk or cream as calculated from the Reichert value and was therefore adulterated. The following answers of elicited from this witness in cross-examination:
The shop is in main bazar. There are two or three hotels in the vicinity. No. 1 Town Police Station is ten yards away from the shop. There were illiterate persons in the shop. Hotels and other shops were functioning. Customers were visiting the shop of accused. Customers were boys and women. The two persons whom I called refused to come, 'Maistries' said that none else came. There were one or two constable in the police station. They said that they had no time to spare. I was in charge of that ward for one year. Mr. Subrahmanyam and K. Subbanna refused to act as 'panchayatdars.' They did not sign anything.
P.W. 2, the sanitary 'maistry' corroborated PW. 1 in all particulars. It will be seen from the evidence of these witnesses that P.W. 1 did make an attempt to get two 'panchayatdars' to witness the proceeding but they did not choose to co-operate with him. In such a situation, is difficult to see what P.W. 1 could have done. A Food Inspector has no power under the Act to compel persons to act as 'panchayatdars.' Sub-section (7) of Section 10 is in the following terms:
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 which such action is taken and take their signatures.
The above provision requires a Food Inspector to do no more than call two persons to witness the seizure and the sampling of food suspected to be adulterated. Moreover, the words 'as far as possible' occurring in Sub-section (7) of Section 10, indicate that this is a mere directory provision and not a mandatory provision, the contravention of which, would have the effect of rendering the seizure illegal and the subsequent prosecution invalid even if there be no prejudice. In this case, P.W. 1 did make a sincere attempt to comply with the requirements of the statute and he is not to blame it public co-operation is not forthcoming even to put clown anti-social offences like food adulteration. In these circumstances, it is surprising that the learned Magistrate should have persuaded himself into holding that there had been flagrant violation of the provisions of Section 10, The following remark of his in the course of his judgment, is wholly unwarranted and is grossly unfair to P.W. 1:
In the circumstances stated it could not have been difficult for P.W. J. to secure the presence of two persons to be present at the time of seizure of sample as required under Section 10 His explanation that he called two persons who pleaded inability to act as 'panchayatdars' cannot be accepted as a valid excuse to circumvent the mandatory provisions of Section 10.
6. Again, the learned Magistrate goes on to say that the supposed violation of the provisions of Section 10 had prejudiced the accused and he was therefore entitled to an acquittal. How the respondent in this case could have been possibly prejudiced by the absence of two 'pan-chayatdars' at the time of the seizure, passes one's comprehension, because, as already noticed, the respondent did not even plead that the stuff had not been sold by him to P.W. 1. In fact the receipt given by him, Ex. P-2, shows that he had sold the ghee to P.W. 1 for Re. 1/- as a sample and he had signed it, I have there fore no hesitation in holding that the lower Court fell into a grave error in holding that there had been a violation of the provisions of Section 10(7) of the Act and by reason of that the respondent had been prejudiced.
7. This Act has been passed in the interest of public health, and persons who infringe its provisions, are guilty of committing anti-social acts. It is in recognition of this, that the Legislature has prescribed severe punishments for offences under this Act. The subordinate Magistracy should realise this and try to carry out the policy of the Legislature instead of being astute to discover ways and means of throwing out cases under the Prevention of Food Adulteration Act. This is one of such cases. The offence with which the respondent was charged was proved to the hilt. The respondent had no defence worth the name. There was nothing irregular in the procedure followed by the Food Inspector. In spite of all this, the learned Magistrate has found a way to acquit the respondent. Small wonder, therefore, that 'the State has filed this appeal to set right the miscarriage of justice.
8. In the result, I allow this appeal, set aside the order of acquittal, convict the respondent under Section 16 read with Section 7 of the Prevention of Food Adulteration Act and sentence him to pay a fine of Rs. 200/- in default to suffer two months' rigorous imprisonment, I am not awarding the maximum punishment because the respondent appears to be a petty retail dealer and would not be able to pay a heavy fine.