Gurdev Singh, J.
This is a State appeal against the appellate order of Shri E. F. Barlow, Sessions Judge, Bhatinda, dated 10th February, 1960, by which he acquitted the respondent, Sadhu Singh, a milk-seller, of an offence under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954.
(2) On the morning of 6th February, 1959, Y. R. Malhotra Food Inspector, while on duty within the municipal limits of Bhatinda City, took a sample of buffalo milk that the respondent, Sadhu Singh, was offering for sale. The sample was divided into three parts, one of which was sent to the Public Analyst in a duly sealed bottle. The Analyst reported (vide Exhibit P. E.) that the sample in question was adulterated with skimmed milk and water, as it was deficient of 46 per cent of the minimum amount of milk fat and 19 per cent of the milk solids. Sadhu Singh was, accordingly, prosecuted under Section 16(1)(a) of the Prevention of Food Adulteration Act; 1954, and it was alleged that he had once been previously convicted for a similar offence on 6th of October, 1958, when he was sentenced, by a Magistrate First Class of Bhatinda, to pay a fine of Rs. 100/-. Sadhu Singh pleaded not guilty.
While admitting that 3/4th Seer of buffalo milk was taken from him by the Food Inspector, Y. R. Malhotra, on the morning of 6th February 1959, he complained that the sample was taken in a garvi, no payment was made to him, and that one of the triplicate samples was never given to him by the Food Inspector. In the course of the trial it was urged that the provisions of Sub-section (7) of Section 10 of the Prevention of Food Adulteration Act were not complied with by the Food Inspector, as the sample was not taken in presence of two respectable persons of the locality, and in accordance with the rule laid down in In re Raju Konar, AIR 1959 Mad 118, the conviction was bad. The learned Magistrate, relying upon the evidence of the Food Inspector, Y. R. Malhotra, P.W. 1, and that of Raunaq Ram P.W. 2, and Hans Raj, P.W. 3, whose signatures appeared on the memo, Exhibit P. C., held that there had been no violation of the provisions of Sub-section (7) of Section 10, read with Sub-section 1(a) of that Section of the Prevention of Food Adulteration Act, as it was proved that the sample had been taken by the Food Inspector in presence of Raunaq Ram and Hans Raj.
Accordingly, he rejected the defence contention and convicted Sadhu Singh under Section 16(1)(a) of the Prevention of Food Adulteration Act. In view of the provisions of Sub-Section (2) of that Section and the admission of Sadhu Singh that he had been previously convicted, the learned Magistrate sentenced him to one year's rigorous imprisonment plus a fine of Rs. 2000/-, the minimum sentence prescribed under the Act for a previous offender. In default of payment of fine, Sadhu Singh was ordered to undergo six month's rigorous imprisonment.
(3) Sadhu Singh appealed to the Sessions Judge, Bhatinda, who, disagreeing with the trial Court, held that the memo Exhibit P. C. upon which the learned Magistrate had relied, was the one that was prepared under Section 11 of the Prevention of Food Adulteration Act, and was, consequently, no evidence of the fact that the provisions of Section 10(1)(a) read with Section 10(7) had been complied with. He was of the opinion that the memo, Exhibit P. D., was the one that was prepared at the time the sample taken, and since it did not bear the signatures of two witnesses who were alleged to have been present at the time the sample was taken, Sub-section (7) of Section 10 had not been complied with. Holding that the provisions of Sub-Section (7) of Section 10 were mandatory and there had been flagrant violation of the same, the learned Sessions Judge accepted Sadhu Singh's appeal and, setting aside his conviction and sentence, acquitted him. It is against this order that the State had come up in appeal.
(4) In assailing the order of the learned Sessions Judge, the Assistant Advocate General has urged:
(a) that there was no violation of the provisions of sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, 1954, and
(b) that, in any case, non-compliance with this provision of law neither affected the validity of the action taken by the Food Inspector, nor vitiated the trial of the respondent.
(5) The sample of milk was taken by the Food Inspector in pursuance of powers conferred on him under Sub-Section (1) of Section 10 of the prevention of Food Adulteration Act, 1954, hereinafter referred to an the Act. The relevant portion of this provision reads as follows:
'10. Powers of Food Inspectors.
(1) A Food Inspector shall have power-
(a) to take sample of any article of food from...
(i) any person selling such article;
(ii) xxx xxx (iii) xxx xxx (b) to send such sample for analysis to the Public Analyst for the local area within which such sample has been taken. (c) xxx xxx
(6) Sub-Section (3) of Section 10 enjoins upon the Food Inspector taking the sample to pay its price to the seller. Sub-Sections (4), (5) and (6) enable a Food Inspector to seize adulterated or misbranded articles and material employed for purposes of adulteration. Then comes Sub-Section (7) on the interpretation of which the decision of this appeal depends. It runs as follows:
'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 when such action is taken, and take their signatures'.
(7) On a plain reading of this provision of law, it is clear that a Food Inspector is required to secure the presence of at least two persons at the time he takes a sample of any article of food for analysis from any person selling that article, unless it is not possible to secure the presence of such witnesses to the taking of sample. It is further enjoined upon him to obtain the signatures of the witnesses present at the time of taking the sample on the relevant memo. The use of word 'shall' in this sub-section leaves no doubt that the provisions of sub-section (7) of Section 10 are mandatory, and no merely directory, and it is the duty of the Food Inspector to comply with the same unless it is impossible to secure the attendance of two persons at the time he takes a sample or does any of the acts under Sec-Sections (1), (4) and (6) of section 10 of the Act. The law does not vest discretion in him to associate or not to associate two persons at the time of taking the sample, but it must be due to circumstances beyond his control that his failure to call two persons to witness the taking of sample would be excused. Accordingly, when in a particular case a sample is not taken in the presence of two persons, it would be for the prosecution to satisfy the Court that it was not on account of any desire to circumvent the provision of sub-section (7) of section 10 of the Act but due to the non-availability of witnesses of some such cause.
(8) Before the Prevention of Food Adulteration Act XXXVII of 1954 was enacted by the Parliament, various States had enacted their own laws on the subject, usually known as the Pure Food Acts. A provision similar to that embodied in sub-section (7) of Section 10 of the present Act (the Prevention of Food Adulteration Act 1954) was contained in the Rules framed under the Punjab Pure Food Act, 1929, by which the Food Inspector was required to take samples in the presence of at least two independent persons. A similar provision existed in the rules framed under the Pure Food Acts of other States as well. The legislature, apparently, attached a good deal of importance to this salutary provision of law as a safeguard against victimization, chicanery and unfair conduct of a Food Inspector. Consequently, it gave statutory recognition to the rule requiring the attendance of at least two persons at the time of taking sample etc., by incorporating it in the body of the Prevention of Food Adulteration Act of 1954. This clearly indicates the importance which the Parliament attached to the presence of at least two independent persons at the time the Food Inspector takes a sample or performs any other act referred to in sub-sections (1), (4) and (6) of Section 10 of the Act.
Such a provision was all the more necessary in view of severe punishment provided for offences relating to adulteration of food, under the Central Act. Under section 16 of this Act, a first offender is liable to imprisonment for one year, or Rs. 2000/- fine, or both. The penalty laid down for the second offence is imprisonment for two years and fine which is unlimited. At the same time, it is enacted under clause (g)(ii) and (iii) of Section 16 of the Prevention of Food Adulteration Act, 1954, that in absence of any special and adequate reasons, which must be expressly stated in the judgment of the Court, a second offender shall be awarded a minimum sentence of one year plus a fine of Rs. 2000/-, and for the third and subsequent offence the minimum sentence prescribed is two years and a fine of Rs. 3000/-. When such heavy punishment is prescribed under the proper, that some safeguards against high-handed action of a Food Inspector should be provided by law, and the legislature rightly embodied the same in sub-section (7) of Section 10 of the Act.
In this context, it is duty of the Court to see that the salutary rule contained in this sub-section is not flouted or disregarded at the whim or the sweet will of a Food Inspector, and before the failure to call two independent persons at the time a sample is taken by a Food Inspector, or he does any of the acts referred to in sub-secs. (1), (4) and (6) is excused, the Court should be satisfied that it is for adequate reasons.
(9) In the present case, it has been contended by the learned Assistant Advocate General that there has been no violation of the provisions of sub-section (7) of Section (10) of the Act. In support of his contention, he relies upon the oral testimony of the Food Inspector, Y. R. Malhotra, P.W. 1, Raunaq Ram, P.W. 2, and Hans Raj, P.W. 3, Vaccination Inspector, as well as the documents, Exhibits P. B., P. C. and P. D., prepared by the Food Inspector on taking the sample from the respondent. Raunaq Ram and Vaccination Inspector Hans Raj P. Ws., no doubt, supported the assertion of the Food Inspector Shri Y. R. Malhotra, that the sample of milk from the respondent in their presence, but we find that the signatures of these two persons appear only on Exhibit P. C., while none of them signed Exhibit P. D., and the receipt, Exhibit P. B., was attested by P.W. Raunaq Ram alone.
(10) The learned Sessions Judge has held that the memo prepared under sub-section (1) of Section 10 of the Act was not Exhibit P. C., but Exhibit P. D., and since the latter was not signed by two witnesses, there was clear non-compliance with the provisions of sub-section (7) of Section 10. He is further of the opinion that Exhibit P. C. was prepared in compliance with the provisions of section 11 of the Act, and, thus, could not be taken into account for the purpose of ascertaining if the provisions of sub-section (7) of Section 10 had been complied with.
(11) The learned Assistant Advocate general has assailed these findings and contended that Exhibit P. C. was the document that was prepared at the time the sample was taken by the Food Inspector under sub-section (1)(a) of Section 10.
(12) Sub-section (1)(a) of Section 10 does not expressly state that a memo has to be prepared when a sample is taken by a Food Inspector, but when it is read along with sub-section (7) of the same section, which requires obtaining of signatures of at least two persons who are called to witness the taking of sample, it becomes abundantly clear that the Food Inspector has to draw up a memo about the taking of sample, and it is on this memo that the signatures of at least two witnesses have to be obtained. The rules framed under the Act do not prescribe any form for such a memo, though the rule 12 lays down that when a Food Inspector takes a sample of an article of food for purposes of analysis, he shall intimate such purpose, in writing in from (vi) to the person from whom he takes the sample. It was in compliance with this rule that Exhibit P. D. was prepared by the Food Inspector, which is not signed by any witness.
(13) Exhibits P. B. and P. C. are not on any of the forms prescribed under the rules.
(14) The procedure that has to be followed by a Food Inspector on taking a sample of food for analysis is laid down by Section 11 of the Act, the relevant portion of which runs as follows:
'When a Food Inspector takes a sample of food for analysis, he shall-
(a) give a notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample;
(b) except in special cases provided by rules under this Act, separate the samples then and three parts and mark and seal or fasten up each part in such a manner as is nature permits; and
(c)(i) deliver one of the parts to the person from whom the sample has been taken;
(ii) send another part for analysis to the Public Analyst; and
(iii) retain the third part for production in case and legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under sub-section (2) of Section 13, as the case may be.'
The notice of the intention of the Food Inspector to have the sample analysed, which is required to be given by the Food Inspector under clause (a) of sub-section (1) of Section 11 reproduced above, has to be in form (vi), as laid down by R. 12. This is the form in which Exhibit P. D. was prepared.
(15) The memo, Exhibit P. C., on which the Assistant Advocate General relies, is a mere record of the proceedings taken under Cls. (b) and (c) of sub-section (1) of Section 11 and serves as evidence of the fact that the sample to which this document relates was, after being divided into three parts, sealed in separate bottles, one of which was given to the respondent Sadhu Singh in the presence of the two attesting witnesses. That this was the purpose of the document, Exhibit P. C., becomes further clear from the acknowledgment appearing at the bottom of Exhibit P. C. by Sadhu Singh respondent himself. It reads as follows,
'Received one sealed bottle of the seized sample of milk buffalo.'
Thus, the finding of the learned Sessions Judge that Exhibit P. C. was the document prepared under section 11(1) is perfectly correct. In fact, the Food Inspector, Shri Y. R. Malhotra, P.W. 1, himself stated at the trial that Exhibit P. C. was the receipt against which one of the bottles was given to the accused. So, this document, Exhibit P. C. was not the one that was required to be prepared under sub-secs. (1) and (7) of section 10, and it does not serve as evidence of the fact that the sample in question was taken from the respondent in the presence of two independent persons.
(16) Since to forms for memos are prescribed under Section 10(1) read with sub-section (7) and section 11, a composite memo relating to the taking of sample, its division into three parts and handing over of one of such parts to the person from whom the sample is taken, would meet the requirements of law, if it is attested by two independent persons; but in the present case Exhibit P. C. is not a memo of that type. In the first place, it does not state the name of the person from whom the sample to which this memo relates was taken. The mere fact that it contains an acknowledgment by Sadhu Singh respondent of his having received one sealed bottle of a sample of milk does not suffice to prove that it relates to the sample that was taken from him. In the second place, the memo, Exhibit P. C. is only a certificate of the fact that the sample which had already been taken (from the person whose name is not stated therein,) had been divided into three parts, and one of the bottles containing the sample had been delivered to Sadhu Singh.
There is no assertion in Exhibit P. C. that this very sample was taken from Sadhu Singh, or that it was given to the person from whom it was taken. The mere fact that a sample was handed over to Sadhu Singh is no proof of the fact that it related to the sample of milk taken from him, especially when in the present case the prosecution evidence discloses that 3 or 4 milk sellers were apprehended by the Food Inspector, they were all taken to one place, and then the samples were taken from each one of them. In these circumstances, the finding of the learned Sessions Judge that no memo about the taking of sample was prepared in accordance with the provisions of sub-section (1) of Section 10 read with sub-section (7) of the Prevention of Food Adulteration Act, 1954, cannot be disturbed.
(17) This brings us to the consideration of the question whether the non-compliance with sub-section (7) of Section 10 of the Act renders the entire proceedings void, and vitiates the trial.
(18) The provision in question has been enacted as a safeguard for an accused person, because the consequences of conviction for an offence under Section 16 of the Food Adulteration Act are likely to be grave, as a severe penalty is provided for the second and subsequent offences. The Court would insist upon the observance of such safeguards as they are not intended to be set at naught or disregarded at the sweet will or whim of the person concerned with apprehension of offenders and their prosecution; but at the same time it must be remembered that sub-section (7) of section 10 of the Procedure of Food Adulteration Act merely prescribes a procedure for taking samples of the articles suspected to be adulterated, and it will be unreasonable to hold that any non-compliance with this provision of law, however minor it may be, would render the prosecution based upon such taking of samples illegal.
The only case in which the non-compliance with the provisions of sub-section (7) of Section 10 of the prevention of Food Adulteration Act was held to vitiate the proceedings, that has been cited before us is a Single Bench decision of the Madras High Court, reported as in, AIR 1959 Mad 118, where Somasundaram J. ruled that the conviction of an accused person must be set aside in a case where it is proved that there had been deliberate disobedience of the mandatory provisions embodied in sub-section (7) of Section 10 of the Prevention of Food Adulteration Act. The other High Courts even, while insisting upon strict compliance with this provision of law, which is under discussion, held that it was an irregularity which per so does not vitiate the proceedings relating to the taking of the sample or the subsequent prosecution based thereon.
(19) In State of Mysore v. Udipi Co-operative Milk Society Ltd., AIR 1960 Mys 80, a Division Bench of that Court held that they did not accept the view that a contravention of Section 10(7) of the Prevention of Food Adulteration Act however trifling it was per se vitiated the prosecution. They observed:
'The essential test was one of prejudice to the accused, apart from the reliability of the evidence adduced.' The Madras decision in Raju Konar's case, AIR 1959 Mad 118 was distinguished as having no applicability to the facts of the case, with which they were dealing. It may however, be noticed here that their Lordships of the Mysore High Court had found as a fact that there was no violation of the provisions of Section 10(7).
Public Prosecutor V. Viswanatham Chetty, AIR 1960 Andh Pra 96, is a Single Bench decision, in which it was ruled that mere violation of or failure, to comply with the provisions of sub-section (7) of Section 10 of the Prevention of Food Adulteration Act would not, by itself, affect the legality or validity of the act of the Food Inspector, and non-compliance would be a curable irregularity, which would not vitiate the trial. The decision in Air 1959 Mad 118 was distinguished, but the learned Judges observed that carelessness or callousness in complying with the requirements of law on the part of a Food Inspector was unbecoming. In Kapoor Chand v. City of Jabalpur Corporation, AIR 1960 Madh Pra 179, T. P. Naik J., while holding that non-compliance with sub-section (7) of Section 10 did not vitiate the trial, went to the extent of observing that the provision regarding the calling of two persons as witnesses at the time of taking the sample was directory and not mandatory. The Madras decision in AIR 1959 Mad 118 was not followed.
(20) The question also came up for consideration before a Division Bench of the Kerala High Court in City Corporation of Trivandrum v. V. P. N. Arunachalam Reddiar, AIR 1960 Kerala 356. Their Lordships, while insisting upon the observance of the terms of this provision of law, held that the non-compliance was a serious irregularity, resulting in prejudice to an accused person. Thus, it will be evident that except for the Single Bench decision of the Madras High Court in Raju Konar's case, AIR 1959 Mad 118 referred to above, the consensus of opinion is in favour of the view that the failure to comply with the provisions of sub-section (7) of Section 10 of the prevention of Food Adulteration Act does not, by itself, render the proceedings of the Food Inspector invalid or vitiate the trial. After due consideration of the matter, we are in respectful agreement with this, and while we do insist upon compliance with the provision in question, we are unable to accept the contention that non-compliance with the provision relating to the taking of sample by a Food Inspector would render the act of the Food Inspector invalid or illegal, or that no prosecution could be successfully launched on the basis of such action.
(21) Provisions like those contained in sub-section (7) of Section 10 of the Prevention of Food Adulteration Act are intended as safeguards not only in the interest of an accused person but also to ensure purity of administration and to guard against victimization of innocent persons. When the law lays down such safeguards, they must be scrupulously observed by the persons concerned. If they are disregarded without adequate reasons, then the conduct of the person whose duty it is to comply with those provisions would certainly arouse suspicion against his bona fides, and, accordingly, the evidence relating to the taking of samples would have to be subjected to careful scrutiny so as to exclude the possibility of foul-play or victimization. In that event, the prosecution would, certainly, be at a disadvantage as suspicion against the conduct of the Food Inspector concerned may naturally create doubt about the correctness of the prosecution allegations, and the benefit of the same would go to the accused.
(22) A provision similar to that contained in sub Section (7) of Section 10 of the Prevention of Food Adulteration Act is to be found in Section 103 of the Code of Criminal Procedure, the relevant portion of which runs as follows:
'103(1) Before making a search under this Chapter, the officer or other person about to make it 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 and may issue an order in writing to them or any of so to do. xxx xxx'
On a comparison of these two provisions of law, it will be noticed that, in fact, section 103 of the Code of Criminal Procedure is more stringent. The expression 'if possible', which occurs in sub-section (7) of Section 10 of the Act has no place in Section 103 of the Code of Criminal Procedure.
It is well settled that non-compliance with Section 103(1) of the Criminal Procedure Code does not render the search illegal, nor does it vitiate the proceedings taken in respect of recovery of incriminating articles as a result of a defective search. It is needless to refer to the numerous decisions of various High Court as the question has been finally settled by their Lordships of the Supreme Court in Sunder Singh v. State of Uttar Pradesh, (S) AIR 1956 SC 411, where their Lordships observed:
'At the highest, the irregularity in the search and the recovery, in so far as the terms of Section 103 had not been fully complied with, would not affect the legality of the proceedings. It only affected the weight of evidence.
(23) It is true that in the case with which their Lordships were dealing, two persons were present at the time of the rickshaw-pullers and not respectable inhabitants of the locality. The observations of their Lordships quoted above, however, clearly indicate that they refused to accept the contention that a search conducted in violation of the provisions of Section 103 of the Criminal Procedure Code was illegal. In dealing with the provisions of Section 103 of the Criminal Procedure Code, their Lordships of the Judicial Committee observed as follows in Malak Khan v. Emperor, AIR 1946 PC 16:
'In their Lordships' opinion, the presence of witnesses at a search is always desirable, and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles, but their attendance at the search is not always essential in order to enable evidence as to search to be given.'
(24) Section 10(7) of the Prevention of Food Adulteration Act, 1954, not only requires the presence of at least two persons at the time a sample of any article of food is taken but also enjoins upon the Food Inspector to obtain the signatures of those persons. This clearly contemplates the drawing up of a memo regarding the taking of sample and its attestation by at least two persons who are present at the time the sample is taken. As found above, in the present case no memo evidencing the search, as required by sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, was prepared. This is certainly a breach of the provision, but applying the rule laid down by their Lordships of the Supreme Court in Sunder Singh's case, (S) AIR 1956 SC 411, which has been quoted earlier, we hold that his, by itself, would not vitiate the proceedings regarding the taking of samples, or affect the validity of the prosecution based upon such irregular action of the Food Inspector.
(25) Turning to the facts of the present case, we find that the Food Inspector, Y. R. Malhotra, P.W. 1, came across the town of Bhatinda carrying some milk for sale. He apprehended the respondent and took him to the crossing where three other milk sellers had been previously detained. No other person was present when the Food Inspector originally apprehended the respondent, but when he took the sample of milk from him after bringing him to the crossing, Hans Raj, Vaccination Inspector, P.W. 3, and Raunaq Ram P.W. 2, a milk seller, were present. The Food Inspector claims to have prepared three documents at the spot, out of which the receipt, Exhibit P. B., whereby Sadhu Singh acknowledged the Payment Rs. 0.33 nP., is attested only by Raunaq Ram, P.W. 2, while the memo, Exhibit P. D., prepared in accordance with R. 12 of the Rules framed under the Prevention of Food Adulteration Act is not attested by any of the witnesses in whose presence the sample is alleged to have been taken. The memo, Exhibit P. C., is no doubt attested by both these persons, but it only recites that the sample of Milk had been divided into three parts and sealed in three separate bottles. This is the memo which is required to be prepared under sub-section (7) of Section 10 of the Prevention of Food Adulteration Act. No explanation for not drawing up the requisite memo under this provision of law is forthcoming.
(26) The evidence of Raunaq Ram P.W. 2, and Hans Raj P.W. 3, regarding the taking of sample does not inspire confidence. Raunaq Ram is a milk Seller who was also apprehended at the crossing, but no sample of milk was taken from him, and instead he was made a witness against the respondent. Hans Raj P.W. is admittedly a subordinate of the Food Inspector. When the law enjoins that the sample be taken in the presence of two persons, it clearly contemplates that the evidence relating to the taking of sample must be above board, and the witnesses in whose presence the sample is taken should be independent and disinterested so as to inspire confidence. In the present case, we however, find that both the witnesses associated with the taking of the sample were under the influence of the Food Inspector. At the time and place where the respondent was apprehended and the sample was taken from him, there could have been no dearth of independent witnesses, but we find that no such person was taken into confidence or asked to witness the taking of the sample from the respondent. This conduct of the Food Inspector certainly creates doubt about his bona fides, and the fact that he omitted to prepare the relevant memo under Section 10(7) of the Prevention of Food Adulteration Act, further makes the entire prosecution case doubtful.
(27) For the foregoing reasons, we find no substantial or compelling reason to interfere with the order of acquittal and dismiss the appeal.
Shamsher Bahadur, J.
(28) I am inclined to take the view that on the evidence adduced in this case, Exhibit P. C. and the other documents were drawn up contemporaneously in presence of the two witnesses, yet strict compliance of the requirements of sub-section (7) of Section 10 of the Prevention of Food Adulteration Act, is lacking. There are daunting penalties provided in the Act and it is all the more necessary that full and not mere substantial compliance of the statutory requirements should be forthcoming. With all other aspects of the case so fully discussed by my learned bother I am in complete agreement. I concur in the order proposed by my learned brother that the appeal should be dismissed.
(29) Appeal dismissed.