T.P. Naik, J.
1. The applicant (accused), Kapurchand, had been convicted by the Magistrate First Class, Jabalpur, under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) for having sold 12 chhataks of adulterated milk to N. B. Gujerathi (P. W. 1), Food Inspector of the Jabalpur Corporation, on 7-8-1957, and sentenced to pay a fine of Rs. 500/- or, in default, to suffer rigorous imprisonment for a period of three months. His appeal to the Sessions Judge, Jabalpur, was dismissed on 4-9-1958.
2. Gujerathi (P. W. 1), the food inspector of the Jabalpur Corporation, on 7-8-1957, purchased 12 chhataks of milk as a sample from the milk shop of the applicant situated at Lordganj, Jabalpur, for Rs. .47 n.p. The milk was represented by the applicant to be mixed milk of a cow and a buffalo. Ex. P-1 is signed by the applicant and specifies the purpose (e.g., for examination by the Public Analyst) for which the milk sample was obtained. Ex. P-2 is also signed by the applicant and is a receipt given by him acknowledging the receipt of one (out of the three) sealed bottle of the milk sample purchased from his shop.
Ex. P-3 is a receipt under his signature acknowledging the receipt of Rs. .47 n.p. as price of the milk sample sold. The milk was found to be adulterated as per report (Ex. P-5) of the Public Analyst. The Public Analyst has also been examined as P. W. 2 and he has testified to the fact that the milk was adulterated. On the aforesaid evidence, which has not been controverted, the conviction wan quite proper and was also not challenged before me on merits.
3. The only contention raised before me was that the trial of the applicant was vitiated as the provisions of Sub-section (7) of Section 10 of the Act, which were contended to be mandatory, were not complied with. That sub-section provides that where a food inspector takes a sample of any article of food from any person selling such article, which he is empowered to do under Clause (a) of Sub-section (1) of Section 10, 'he shall, as far as possible, call and less than two persons to be present at the time when such action is taken and take their signatures'.
Admittedly, no such witnesses to the taking of the sample were called, nor have any two persons signed the documents evidencing the taking of the sample of milk by the food inspector. The question that arises for consideration is whether the non-compliance aforesaid, if any, vitiated thetrial of the applicant. The learned counsel for applicant contended that the trial was vitiated and relied on a case reported in In re Raju Konar, AIR 1959 Mad 118.
4. In my opinion, the non-calling of at leasttwo persons to witness the taking of the sample did not vitiate the trial In the first place, the direction: 'call not less than two persons to bepresent at the time when such action is taken and take their signatures', is prefixed by the words: 'as far as possible', and consequently it is not absolute in its terms. It gives a discretion to the food inspector to call at least two witnesses ii the circumstances of the case permit it, of which he is made the judge. A mandate which, leaves it open to the mandated person to call or not to call witnesses at his discretion cannot be called a mandate properly so called at all.
It may also be noted that no penalty is prescribed for any non-compliance. The provision simply regulates the manner in which the food inspector is to exercise his power of taking samples, and an exercise of power in disregard or 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. Secondly, the requirement is that 'as far as possible' he shall call at least two-persons to witness the taking of a sample, and, nothing has been brought out in the cross-examination of the food inspector (P. W. 1) to establish that it was within his power to call any two persons and yet he did not do so.
From the trend of the cross-examination of this witness (P. W. 1) it does not appear that the applicant wanted to make any grievance of this fact. And, unless we know what were the circumstances under which the sample was asked for and given, it would not be possible to ascertain how far it was possible to call two persons to witness the taking of the sample as required by the Act. Thirdly, the purpose of the safeguard contained in Sub-section (7) of Section 10 of the Act is that the act of the food inspector in taking a sample should be above suspicion and free from any doubt. Consequently, where the precaution provided in the Act, e.g., the calling of two witnesses, is not taken, on the analogy of Section 103 of the Code of Criminal Procedure, the taking of the sample may have to be scrutinized with greater care and caution.
In the instant case, the explanation of the applicant of the circumstances under which the milk sample was taken and sealed by the food inspector (P. W. 1) has been found to be false. Besides, the applicant admits the receipt of Rs. .47 n. p. as the price of the milk sample and the passing of a receipt (Ex. P-3) therefor, and this could not be true if the milk sample had not been sold by him. Consequently, I am of opinion that his explanation for the signing of Exhibits P-1 and P-2 was quite false and there could be no manner of doubt that the applicant gave the milk sample which was, on analysis, found to be adulterated.
5. The conviction of the applicant is thus proper and it is maintained. The sentence calls for no interference.
6. The application for revision fails and isdismissed.