R.N. Misra, J.
1. petitioner is a retail grocer near the bus stand at Sundergarh town. On 11-11-1974, the Food Inspector (P.W. 1) made a statutory purchase of til oil from him after serving notice under Ext. l. He obtained a receipt in evidence of the sale under Ext. 2 and as he suspected adulteration, he got it analysed by the Public Analyst. Ext, 3 is the report of the Public Analyst showing that the sample til oil was adulterated. He obtained sanction under Ext. 4 and petitioner was prosecuted under Section 16(1)(a) of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Act').
2. The defence of the petitioner was that he was not selling til oil as food but only for the purposes of massaging on the body. When P.W. 1 asked for purchase of til oil he told him that he had til oil meant for massage.
3. Prosecution examined three witnesses in all - P.W. 1 is the Food Inspector, P.W. 2 is the Sanitary Inspector while P.W. 3 is a peon attached to the office of P.W. 1. The learned Magistrate accepted the prosecution case and convicted the petitioner for the charge framed against him and sentenced him to undergo rigorous imprisonment for six months and pay a fine of Ks. 1,000/- or in default suffer rigorous imprisonment for a period of two months. On appeal, the learned Additional Sessions Judge upheld the conviction and sentence. This revision application is directed against the confirming appellate decision.
4. It is not disputed that P.W. 1 made a statutory purchase and on analysis the sample has been found to be adulterated. Three questions have mainly been canvassed in support of the petitioner:
(i) There has been no compliance of Section 10(7) of the Act. Therefore, the prosecution is vitiated.
(ii) The defence story that the petitioner told P.W. 1 that he did not have til oil fit for human consumption should have been accepted as it has been duly proved as a fact.
(iii) No reliance should have been placed on Ext. 5 for proof of the charge.
5. Section 10(7) of the Act provides:
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, call one or more persons to be present at the time when such action is taken and take his or their signatures.
Admittedly action was taken in this case under Section 10(1)(a) and, therefore, the provision of Sub-section (7) applied. Sub-section (7) underwent an amendment by Central Act 49 of 1964 with effect from 1st of March, 1965. Before amendment, the sub-section provided:
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 time when such action is taken and take their signatures.
Even prior to the amendment there was consensus in judicial opinion that compliance with the provisions of Sub-section (7) is indispensable. There could, however, be exceptional circumstances for bringing a particular case within the exception covered by the words 'as far as possible'. Courts took the view that obedience to such mandatory direction where it is possible to do so seems to have been intended as a unbreakable rule and the only condition which could admit of an exception was, when the prosecution established that it was not possible.
The provisions contained in the subsection are by way of a safeguard against the abuse of the wide powers vested in the Food Inspector or in the matter of entry, search and seizure and, therefore, it is intended to be complied with. The Supreme Court in a recent case dealt with the legal position after the amendment in the case of Ram Labhaya v. Delhi Municipality : 1974CriLJ672 . After quoting the sub-section, the Court observed:
There can be no doubt that one or more Dersons must mean one or more independent persons. The legislative history of Sub-section (7) further shows that at the least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the sub-section. Prior to its amendment by Act XLIX of 1974, subsection (7) ran thus:
Where the Food Inspector takes any action under Clause (a) 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.By the amendment of 1964, the words as far as possible were deleted. This deletion naturally lends plausibility to the contention that the provisions of Section 10(7) are mandatory and it has been so held in Food Inspector, Corporation of Calicut v. Vincent ILR (1966) 2 Ker 551 and Ram Sarup Tara Chand v. State .
We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the subsection, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We ore, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to call one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses....
In the instant case, there is no evidence that P.W. 1 made an attempt to call anybody from the locality. On the other hand, in cross-examination he has clearly admitted that he did not call any member of the public at the time of collection of the sample. There is positive evidence to show that such persons were available. In fact, there were many persons in the shop itself at the time when the statutory purchase was being made. P.W. 2 who accompanied the Food Inspector and is himself a Sanitary Inspector of Food categorically stated in his cross-examination that at the time when samples were being taken there were five to seven persons in the shop. D. Ws. 1 and 2 who are neighbouring shopkeepers have themselves stated that they were pressent and besides them there were also others. It is true that P.W. 3, the peon attached to the Food Inspector, has said that no outsider was present at the time of drawing samples. I am, however, not inclined to accept that evidence in view of a more responsible officer like P.W. 2 admitting the presence of outsiders and D. Ws. 1 and 2 clearly deposing that outsiders including themselves were present. Again this is not a case where P.W. 1 took steps to call any outsider and yet nobody was prepared to come and witness his statutory action. On the authority of the decision of the Supreme Court referred to above, in the instant case the prosecution must be taken to be vitiated.
6. The next contention of the petitioner is that when P.W. 1 wanted to buy til oil he clearly told the purchaser that he had only til oil fit for massage i.e., external use and not for human consumption. Each of the prosecution witnesses when suggested has denied this fact. P.W. 1 has said that the accused on his asking told him that til oil was sold as edible oil. P. Ws. 2 and 3 have also made similar statements. It is true that the accused in his statement and his two witnesses have supported the defence stand. I am not however, prepared to disbelieve the prosecution witnesses particularly in view of the fact that the two courts below have acted on it.
7. The last contention of petitioner's counsel is that no reliance should have been placed on Ext. 5. Ext. 5 is a list of articles sold in the shop of the petitioner. Therein he has mentioned til oil as Item No. 3. It Is true that the document has been written out by a prosecution witness and the petitioner has signed in his own hand in that list. Petitioner's stand is that he is not able to read and write Oriya. There is no evidence to show that what was written in Ext. 5 was ever read over to him and that the petitioner admitted the contents to be true. Again, the document has never been put to the witnesses though according to the prosecution it is sufficiently implicating. Keeping all these aspects in view, I am prepared to accept the contention of petitioner's counsel that Ext. 5 should not be relied upon as an admission and a substantial piece of evidence to support the prosecution case.
8. Undoubtedly the offence if established is serious. Food adulteration has become a social menace in this country and Parliament Ls anxious to eradicate food adulteration by providing stringent punishment for the adulterer, Learned Additional Government Advocate is right in these submissions and I am also prepared to accept the same provided the charge is established beyond doubt. The facts that the offence is serious and the consequence is disastrous do not relieve the prosecution of proving its case beyond reasonable doubt as in any other case. On the other hand, it is appropriate that the prosecuting agency takes adequate care to comply with the requirements of law and does not allow such anti-social offences to go unpunished for technical lacunae.
9. I must hold for the reasons already indicated that the prosecution is vitiated and the petitioner must be acquitted. Accordingly I allow the revision application, set aside the conviction and sentence imposed on the petitioner and cancel his bail bond.