G.K. Misra, J.
1. Thakurlal Satholia (since deceased) was convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced to a fine of Rs 300. As the appeal was filed by the son of the deceased, the appellate Court directed that he would not undergo any imprisonment in default of payment of fine, but the fine would be realised according to law.
2. On 28-2-63 P. W. 1, the Food Inspector of Cuttack Municipality, inspected the grocery shop of the accused in Buxi Bazar within the municipal area of Cuttack city, He purchased a small quantity of Arhar dal suspecting it to be adulterated. A sample of the Arhar dal purchased was seized in presence of two witnesses -- Vigilance Inspector (P. W. 2) and the Sanitary Inspector (P. W. 3). The sample was divided into 3 parts and sealed in three empty bottles one of which was handed over to the accused. Out of the two bottles taken by P. W. 1, one was sent to the Public Analyst who reported that the sample contained colouring materials yellow (Coaltar dye present) and who was of opinion that the sample was adulterated as aforesaid colouring matter was prohibited for use under the Prevention of Food Adulteration Rules. The prosecution was launched after obtaining sanction of the Chairman of the Cuttack Municipality.
The defence was one of denial. The accused pleaded that the sample sold to the Food Inspector (P. W. 1) was not of the very article sold by the accused, that the provisions of Section 10(7) of the Act had not been complied with and that the article sold was purchased by him in the same condition from the wholesaler.
3. Mr. Murty advanced two contentions:
(1) That the sample was taken without complying with the provisions of Section 10(7) of the Act. P. Ws. 2 and 3 not being independent witnesses, there is no reliable evidence that the article in the sample wa' purchased from the accused.
(2) The label on the bottle was not signed by the two witnesses and as such the seizure is illegal.
4. The second contention has no force. No provision was brought to my notice whereunder the label on the bottle in which the sample article was put is to be signed by any seizure witness. In this case the seizure list was signed by P. Ws. 2 and 3 and the provision of law was fully complied with.
5. The first contention requires closer examination. Section 10(7) of the Act, as it stood before the amendment, so far as is relevant, ran thus-
Where the food inspector takes any action under Clause (1) of Sub-section (1), 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.
Section 10(1)(a)(i) prescribes that a Food Inspector shall have power to take samples, of any article of food from any person selling such article in this case, P. W. 1 took such sample.
Under Section 10(7), the food inspector shall call not less than two persons to be present at the time when the sample is taken and take their signatures. P. W. 1 took thesample in the presence of the two witnesses P. Ws. 2 and 3 and took their signatures on the seizure list. Thus the elements of the section were fulfilled on its plain language.
6. Mr. Murty, however, contended that though the sub-section refers to the presence of two persons, those two persons must be independent witnesses. The contention has no force. A bare reference to Section 10(5) would make the position clear. It prescribes that the power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale, provided further that the food Inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, relating to the search or inspection of place by a police officer executing a search warrant issued under that Code.
Section 103 (1), Cr. P. C, in its terms prescribes that before making a search under this Chapter, the officer 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.
On a comparison of Section 10(5) with Section 10(7) of the Act, it would be clear that while in case of a search or inspection, the food inspector shall have to observe the procedure prescribed in Section 103(1), Cr. P. C. in case of Section 10(7) sample is to be taken in presence of two witnesses and not two respectable witnesses. The languages of the two sub-sections, read in juxta-position, make the difference in the legal requirement clear. Under Section 10(7) the witnesses need not be respectable and independent. It would be sufficient if in presence of two witnesses the sample is taken it need hardly be stated that it would be open to a court to believe or disbelieve those two witnesses. Every witness appearing before the Court must be reliable. For that no statutory provision is necessary It is open to a Court, of fact to disbelieve P. Ws 2 and 3 if they were unreliable. If otherwise they were reliable, their evidence cannot be discarded merely because they were servants of the municipality or were under influence of the Food Inspector. When making assessment of evidence. It is open to a Court to take into consideration the fact that those witnesses were in the influence of P. W 1 and should not be believed. That by itself is not a ground for saying that the provisions of Section 10(7) have not been complied with and the seizure is vitiated as being illegal
7. Even in respect of search and seizure under Section 103, Cr P C., failure to cause respectable persons to witness the search does not invalidate the search or seizure. It only affects the weight of evidence (See Sunder v. State of U. P., AIR 1956 SC 411). It would be difficult to hold that the seizure is illegal in the absence of two independent witnesses.
8. The expression 'as far as possible' in Section 10(7) indicates that where two witnesses are not available, it is open to the food inspector to take the sample in their absence. That shows that non-compliance with the provisions of Section 10(7) does not go to the root of the matter and does not affect the legality of the seizure.
9. As appears from the evidence of P. W. 2, in the shop at the time of seizure many other persons were present. It is accordingly contended by Mr, Murty that independent witnesses were available to be witnesses to the seizure and the evidence of P. Ws. 2 and 3 should be discarded. It has already been discussed that the two witnesses need not be respectable witnesses as referred to in Section 103, Cr. P. C. If such witnesses were available. It would suffice if they are reliable witnesses. The Courts below have closely scrutinised the evidence of P. Ws. 2 and 3 and have accepted their evidence as reliable. Nothing has been urged to take a contrary view. Neither any infirmity has been pointed out in their evidence.
10. Mr. Murty placed reliance on State v. Sadhu Singh, AIR 1962 Punj 548, in support of the contention that when two Independent and disinterested witnesses were not examined, a finding should be recorded that the sample was not properly taken and that on the basis of the finding that the sample was adulterated, a conviction should not be based. The observation of the Bench in para 26 of the judgment lends support to such a contention. I am unable to accept the opinion of their Lordships as laying down the correct law. As I have already said, the witnesses to the seizure must be reliable. They need not be Independent and disinterested. The section even goes so far as to say that there would be two witnesses to the seizure as far as possible. There may be a case where seizure witnesses would not at all be available. If in such a case, the seizure would be valid, it is difficult to lay down a general rule that witnesses under the influence of food inspector would not be relied upon any case. That is a matter which relates to assessment of evidence. It is open to a Court of fact to take such factor into consideration in accepting or rejecting the evidence of such witnesses Patna Municipal Corporation v Dular Chand. AIR 1964 Pat 565 supports my view.
11. No other point has been urged. The revision fails and is dismissed.