Rajeshwari Prasad, J.
1. Both the petitioners have been convicted under Sections 7/16 Prevention of Food Adulteration Act. The sentence awarded to Sri A. K. Chakra-varty is that of a fine of Rs. 2,000 and in default to undergo rigorous imprisonment for one year. The sentence awarded to Sri A. K. Bhattacharya petitioner is also that of a fine of Rs. 1000 only and in default to undergo six months' rigorous imprisonment.
2. There is a private limited company in the town of Varanasi known as 'Healthway Private Ltd.' The business that it carries on is of manufacture and sale of milk powder known as 'Shishu Milk Food'. Petitioner Sri A. K. Chakra-varty is the Director and the petitioner Sri A. K, Bhattacharya is an employee thereof. He is a salesman according to the case of the prosecution. On 15th June 1964, the Food Inspector Sri Vijay Bahadur Srivastava (P. W. 1) obtained sample of milk powder which on analysis was found to be deficient. Petitioner Sri A. K. Chakravarty pleaded that when the sample was taken, he was not at Varanasi but was at Calcutta. The other petitioner Sri Bhattacharya pleaded that there was no sale of any sample in this case. The Food Inspector took the sample from the condemned stock stored in the godown. No price was received for the same. Nor was entry made thereof in the account books of the company. No regular receipt on the prescribed form, of the company was given for the same. It was also alleged that he was not the salesman of the company and consequently he had no authority to sell the same to the Food Inspector.
3. The conviction of the petitioner in this case is based solely on the testimony of the Food Inspector Sri Vijay Bahadur Srivastava (P. W. 1). No other witnesses were produced by the prosecution.
4. In support of the revision petition, it has been urged that the Food Inspector did not comply with the provisions of Section 10, Sub-section (7) Prevention of Food Adulteration Act and on that basis it has been urged that the conviction of the petitioners on the sole testimony ofthe Food Inspector should not be maintained.
5. There is force in the submission. Before, I deal with the actual implications of Sub-section (7) of Section 10 of the aforesaid Act, it should be useful to reiterate that in this case, the contention on behalf of the petitioners is that there was no sale as alleged by the prosecution and that at any rate, the prosecution had failed to establish any such sale. It is further the case of the petitioners that the sample was taken from condemned consignment in the godown. The question that directly arises in this case, therefore, is whether the prosecution has succeeded in establishing that there was a sale and, if so whether it related to an article which was not condemned and stored in the godown. It is in this light that the omission of the Food Inspector in not complying with Sub-section (7) of Section 10 has to be considered in this case. Sub-section (7) of Section 10 reads as follows :--
'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 tune when such action is taken and take their signatures.'
6. A plain reading of the above-subsection (7) of Section 10, makes it clear that the provision was intended to be mandatory in cases where it was possible to comply with the same. The exceptions to that mandatory rule are those cases where it is not possible to comply with that rule. The word used in the section is 'shall' and not 'may'. The other possible interpretation of the above rule of law is that the phrase 'as far as possible' governs the further clause 'not less than two persons to be present at the time.' It can be read to lay down that if it is not possible to call two persons, it is permissible only to call one person. In my opinion, in cases where there is no evidence to show that it was not possible to comply with the requirement of Sub-section (7) of Section 10, compliance with that sub-section must be made. It would be open to the prosecution to show that under the circumstances of the case, it was not possible to comply with that requirement, but in the absence of any circumstance to that effect, it cannot be said that it was intended to leave the matter entirely in the discretion of the Food Inspector to call witnesses or not to call witnesses when action was taken under Clause (a) Section 10 Sub-section (1) of the Act. It could not have been intended to give the Food Inspector a power to discriminate one case from another.
7. In the instant case, there is absolutely no evidence to show why it was not possible to call two witnesses at thetime when action was taken under Clause (a) of Sub-section (1) of Section 10. This being so, the testimony of the Food Ins-spector by itself loses its value to a great extent and the conviction of the petitioners on that testimony alone would not be warranted.
8. My attention has been invited to a Division Bench decision of this Court in the case of Municipal Board, Kanpur v. Mohanlal, 1960 All LJ 419. That case is clearly distinguishable on the basis that in that case there was evidence of the Food Inspector to show that he did try to get independent persons to witness the taking of the sample but none of them were willing to oblige and that he was forced to seek the assistance of the Municipal peon, who had accompanied him in that behalf. It was under those circumstances that importance was not attached to the omission of the Food Inspector in not complying with that rule of law. Eeference was also made to another Single Judge decision in the case of Mohd. Shafaat Husain v. State, (1959) All LJ 624. In that case on the evidence that was adduced by the prosecution, a finding was returned that the taking of sample had been successfully established. In view of that finding, the omission of the Food Inspector in not complying with Sub-section (7) of Section 10 loses its importance. In the instant case, as I have mentioned above, the question that has arisen is itself to the effect whether the testimony of the Food Inspector has proved the purchasing of the sample in the manner as alleged by the prosecution. That decision, therefore, also is not applicable on the facts of the present case.
9. Apart from absence of any independent witness to prove the taking of the sample and the sale, there is the further circumstance in this case, that the receipt which has been proved to establish the sale in question is not on the printed receipt of the firm nor are there entries of the amount in the firm's register which was said to have been paid by the Food Inspector. It was urged that it is usual that the Food Inspector carry their own receipt books and obtain receipts from sellers on the same. In the instant case, however, we find that other Inspectors also took sample on the same date from the said firm of other articles. The receipts granted for those purchases are receipts on the printed receipt forms of the firm. There does not appear to be any reason why on the same date, a receipt was given to the Food Inspector concerned, not on the printed receipt of the firm, but on other forms. The absence of witnesses and the absence of a receipt on the receipt form of the firm raises doubt about the correctness of the testimony of the FoodInspector. This being so, the conviction of the petitioners based on the sole testimony of the Food Inspector in this case cannot be upheld. The prosecution case, cannot be said to be free from reasonable doubt.
10. The petition in revision is allowed.Order of conviction of the petitionersunder Sections 7/16 Prevention of FoodAdulteration Act is set aside. The petitioners are acquitted. Fine if realisedwill be refunded.