Bhopinder Singh Dhillon, J.
1. Briefly stated, the prosecution case is that Harbux Rai, Municipal Food Inspector, (P.W. 1) intercepted the respondent on 27th of May, 1967. While he was carrying about 5 kilograms of cow's milk for sale, at Batala. The Food Inspector served the respondent with notice Exhibit P.A. and purchased 12 chhantaks of cow's milk from the respondent after making him payment of 0.66 Paise against receipt Exhibit P.B. which was executed by the accused-respondent. The Food Inspector, after dividing the sample of the milk into three bottles and after adding necessary formaline as preservative sealed the bottles at the spot, in the presence of Inderiit a Halwai and Jugal Kishore. P.Ws. One sealed bottle of the sample was given to the respondent against receipt on seizure memo Exhibit P.C. which was also attested by Jugal Kishore and Inderjit P.Ws, in whose presence the sample was seized. The public Analyst, vide his report Exhibit P.D. found that the fat in the milk was less by 8 per cent and solid not-fat was less by 7 per cent, from the prescribed standard.
2. Prosecution produced Harbux Rai Municipal Food Inspector, (P.W. 1) and Jugal Kishore (P.W. 2) and closed the case. The learned trial Magistrate found that the defence plea that the respondent was taking the milk for offering the same at Gurdwara Khanda Sahib, was false. He also recorded a finding that the respondent did sell the cow's milk and came to the conclusion that the prosecution case against the accused was proved beyond all reasonable doubt and, therefore, convicted the accused under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 and sentenced him to six months rigorous imprisonment and a fine of Rs. 1000/- in default of payment of which the accused respondent was further ordered to undergo rigorous imprisonment for six months.
3. In an appeal, filed by the respondent, the learned Additional Sessions Judge, acquitted the accused following a decision of this Court reported as State v. Sadhu Singh A.I.R. 1962 Funj 548 : (1962) 2 CriLJ 779 holding that the Food Inspector failed to comply with the mandatory provisions of Section 10(7) of the Prevention of Food Adulteration Act 1954, inasmuch as none of the two witnesses was an independent person in whose presence the sample was taken. The learned appellate Court formed the opinion that Inderjit being a Halwai and Jugal Kishore being a petty shopkeeper, could not be termed as independent witnesses and, therefore, came to the conclusion that the provisions of Sub-section (7) of Section 10 of the Act had not been complied with. The learned lower appellate court also relied on an unreported Single Bench decision of this Court in Criminal Revn No. 1038 of 1967 (Pun) Jai Singh v. The State of Punjab, decided by R.P. Khosla J. on 6.3.1968.
4. After hearing the learned Counsel for the parties, we are of the opinion that the order of the learned lower appellate court is liable to be set aside. Section 10 of the Prevention of Food Adulteration Act, 1954, prescribes the power of the Food Inspector. Under Sub-section (1)(a)(i) of Section 10 of the said Act, the Food Inspector is empowered to take sample of any article of food from any person selling such article. Sub-section (7) of Section 10 provides that where the Food Inspector takes any action under Clause (a) of Sub-section (1) he shall call one or more persons to be present at the time when such sample is taken and should take his their signatures. This provision has been made in the Act with a view to ensure that the sample is taken in the presence of independent persons so that the court at the time of the trial is sure that the sample was taken as alleged by the prosecution. The said provision is all-important in a case where the taking of the sample and the sealing thereof is disputed by the accused person. But the moment an accused person admits that sample was taken and that the said sample after having been divided into bottles was sealed in his presence and one of the bottles so sealed was handed over to him, there does not remain any significance of this sub-section. In the present case the respondent accused in his statement under Section 342 Cr.P.C. admitted that sample was taken from him and that the said sample was transferred into three bottles, formaline was added and all the three bottles were sealed, out of which one bottle of same was given to the respondent. In this view of the matter, the view of the learned lower appellate court that provisions of Sub-section (7) of Section 10 of the Act have not been complied with cannot be sustained especially when we find that the Food Inspector while taking the action under Clause (a) of Sub-section (1) of Section 10 did associate Jugal Kishore and Inderjit and got the necessary documents signed from them. Merely because Inderjit was a Halwai and Jugal Kishore is a petty shopkeeper, it is no ground to hold that they are not independent witnesses.
In the case reported in Sadhu Singh's case (Supra) it was held on the facts of that case that Ronak Ram and Hans Raj P.Ws. in that case were not reliable witnesses. Ronak Ram was a milk seller who was also apprehended simultaneously with the accused of that case but no sample was taken from him and instead he was made a witness against the accused afterwards. The other witness Hans Raj was admittedly a subordinate of the Food Inspector. In those circumstances it was held that the Food Inspector failed to comply with the provisions of Sub-section (7) of Section 10 of the Act. In the present case, the testimony of Jugal Kishore, who supported the prosecution has not been disbelieved on any ground except that he is a petty shopkeeper. This in fact is no ground to disbelieve his testimony especially when the respondent admits that the sample was taken and sample after having been transferred into three bottles and after necessary formaline having been added was sealed and sample bottle was given to the respondent. The respondent at no stage doubted that the sample was in any way tampered with. In any case, the respondent had his own sample with him and he was at liberty to have his sample sent for analysis. In the reported case referred to above, the plea taken by the accused was that sample was taken in a garbi and no payment was made to him and that one of the sealed sample bottles was not given to him. In view of this stand taken by the accused the statement of the witnesses in whose presence the sample was taken had to be scrutinized minutely whether the sample was taken in accordance with the provisions of the Act. On the facts of that case their Lordships disbelieved the statements of Raunaq Ram and Hans Raj P.Ws. on the grounds which have already been referred to above.
5. So far as the decision in Criminal Revision No. 1038 of 1967 (Punj) is concerned, no doubt in that case the accused had admitted the taking up of the sample, but the learned Single Judge did not give any reason as to why the case of the prosecution could be thrown out on the ground of non-compliance of the provisions of Sub-section (7) of Section 10 of the Act. There is no discussion of this aspect of the case in the judgment at all. In our opinion, that decision is not the correct interpretation of the provisions of the Prevention of Food Adulteration Act and we are inclined to hold that in a case where the taking of the sample and the sealing of the sample are not disputed by the accused person, provisions of Sub-section (7) of Section 10 of the Act lose all importance but in a case where it is disputed by the accused person it becomes necessary to scrutinize the evidence of the witnesses associated with the taking of the sample under Sub-section (7) of Section 10 of the Prevention of Food Adulteration Act and it would depend on the facts of the case whether the statements of the said witnesses have to be relied upon.
6. Mr. Kang, the learned Counsel for the respondent contended that since the case is quite an old one and also the fat is less by 8 per cent and solid not-fat by 7 per cent, being of negligible quantity, the appeal should not be accepted. We are unable to agree with this contention of the learned Counsel. The trial court rightly came to the conclusion that the accused was guilty and was rightly convicted. The learned lower appellate court illegally interfered with the judgment of the learned trial court and in no case can it be said that the percentage of fat and solid not-fat in the present case is negligible.
7. For the reasons recorded above this appeal is accepted. The order of the learned lower appellate court is set aside and that of the trial court is restored. The respondent is on bail. He should surrender to the bail bonds and be taken into custody to undergo the remaining period of imprisonment.
C.G. Suri J.
8. I agree