A.D. Koshal, J.
1. The petitioner was convicted by the Chief Judicial Magistrate, Jullundur, of an offence under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) for selling adulterated cow's milk, and was sentenced to rigorous imprisonment for six months and a fine of Rs. 1,000/-, the sentence in default of payment of fine being further rigorous imprisonment for six months. Against the judgment of the learned Magistrate he filed an appeal which was dismissed by Shri Harbans Singh, Additional Sessions Judge. Jullundur on the 26th of September, 1970 except in so far as the sentence awarded in default of payment of fine was reduced to rigorous imprisonment for three months. The petitioner has therefore, come up in revision to this Court.
2. The conviction was based on the testimony of Food Inspector Madanjit Singh (P.W. 1) and Harbans Lal Halwai (P.W. 3) read with the report of the Public Analyst (Exhibit P.D.). The said two witnesses stated at the trial that a sample of milk was taken by the Food Inspector from the petitioner at 8.10 A.M. on the 29th of June, 1968, when the latter was intercepted on the G.T. Road outside Jullundur Cantonment Railway Station while carrying 100 kilograms of cow's milk for sale. They added that the sample was divided into three parts, each one of which was sealed into a separate bottle. The Food Inspector further stated that one of the bottles was sent to the Public Analyst whose report (Exhibit P.D.) declares that the sample sent to him was deficient in non-fatty milk solids to the extent of 21 per cent of the minimum prescribed standard.
The sample of milk was said to have been taken by the Food Inspector in the presence of Harbans Lal Halwai (P.W. 3) and Octroi Moharrir Jit Ram (P.W. 2) who did not support the prosecution and deposed that the Food Inspector had brought the petitioner to the Octroi Post where he (Jit Ram) signed the recovery memo at the instance of the Food Inspector and that the latter had stated at the time that the sample of milk had already been secured from the petitioner Jit Ram (P.W. 2) was declared hostile to the prosecution and was cross-examined by the Food Inspector when he stated that the Food Inspector was accompained by Harbans Lai (P.W. 3).
3. The stand of the petitioner at the trial was that he was stopped on the G.T. Road by the Food Inspector who took his thumb-impressions on a number of papers although he (the petitioner) was not carrying any milk at the time. This stand was supported by Paramjit Singh (D.W. 2), a brother of the petitioner, but not by Laxmi Chand (D.W. 1), the only other witness examined in defence.
4. The first contention raised on behalf of the petitioner is that the Food Inspector had not complied with the provisions of Sub-section (7) of Section 10 of the Act which runs thus:
10(7). 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 call one or more persons to be present at the time when such action is taken and take his or their signatures.
inasmuch as neither of the two persons whose signatures were obtained at the time the sample in question was secured from the petitioner was an 'independent witness'. Reliance in this connection is placed on State v. Sadhu Singh and Rameshwar Dass Radhey Lal v. The State .
In the first of these cases Gurdev Singh, J. with whom Shamsher Bahadur, J. agreed, observed with reference to Sub-section (7) of Section 10 of the Act:
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 witnsesses, 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.
This is how in Rameshwar Dass Radhey Lal's case . (supra) Narula, J., interpreted and applied the above observations of the Division Bench:
Even Ram Niwas P.W. 4 is not the kind of witness who would fall within the qualifications ascribed to a proper witness by the Division Bench of this Court in Sadhu Singh's case . Admittedly Ram Niwas is also a Dairy keeper from whom sample had been obtained by the Food Inspector. He was prima facie under the influence of the Food Inspector and was not a proper witness to be associated for the purposes of satisfying the requirements of Section 10(7) of the Act. The criticism of Mr. Bipon Behari Lal Advocate against Ram Niwas being a stock witness of the Municipality for prevention of food adulteration case, may or may not be conrect. Of course the witness cannot be congratulated on the evasive attitude he took in reply to questions out to him about the previous occasions on which he had given evidence for the prosecution in such cases. Be that as it may, the mere fact that at the time the witness was himself at the mercy of the Food Inspect-torate disqualified him from acting as a proper witness under Section 10(7) of the Act particularly when no second witness had been called in. I am not only bound by the judgment of the Division Bench in Sadhu Singh's case. but I am also in respectful agreement with the ratio of that judgment. Following the same, I hold that the prosecution of the petitioner is vitiated in this case on the additional ground that the disputed sample was obtained without complying with the mandatory requirements of Section 10(7) of the Act.
With very great respect to my learned brother Narula J. I regret I cannot subscribe to his view in all its aspacts. The desirability of the Food Inspectors associating with themselves disinterested persons while taking samples of food suspected to be adulterated cannot be overemphasised. But then the law does not declare in so many words or by necessary intendment that if none of the witnesses whose signatures are obtained by a Food Inspector under Sub-section (7) of Section 10 of the Act while securing a sample of food is wholly unconnected with the Food Inspector, their testimony cannot be acted upon, or that the action taken by the Food Inspector in securing the sample is rendered illegal and ineffective. In my opinion, all that the Division Bench intended to lay down in Sadhu Singh's case was that it should be the endeavour of a Food Inspector while taking a sample to associate with himself disinterested persons who would inspire confidence of the Court, and not that if the witnesses actually associated were not of that type, the securing of the sample would be struck down as violative of the provisions of Sub-section (7) of Section 10 of the Act. As it is the evidence of the Food Inspector alone has been held by their Lordships of the Supreme Court in Babulal Hargovindas v. State of Gujarat : 1971CriLJ1075 to be sufficient for a conviction. The following observations made by their Lordships in that case are instructive:
It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under Section 68 of the Evidence Act to prove the execution of the will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. The provisions of Section 10(7) are akin to those under Section 103 of the Criminal Procedure Code when the premises of a citizen are searched by the Police. These provisions are enacted to safeguard against any possible allegations of excesses or resort to unfair means either by the Police Officers or by the Food Inspectors under the Act. This being the object, it is in the interests of the prosecuting authorities concerned to comply with the provisions of the Act, the non-compliance of which may in some cases result in their testimony being rejected. While this is so we are not to be understood as in any Wav minimising the need to comply with the aforesaid salutary provisions. In this case however there is no justification in the allegation that the provisions have not been complied with because the Panch witness had been called and his signatures taken which he admits. In these circumstances the Courts were justified on the evidence of the Food Inspector that he had complied with the requirements and that the samples were seized in the presence of the Panch witness whose signatures were taken in the presence of the accused.
The Panch witness mentioned in the above observations had deposed in Court that the sample in question had not been taken in his presence but that he had signed on the two bottles of milk and wrappers when he was called by the Food Inspector. The situation in the instant case is certainly not as bad as that. Out of the two witnesses whose signatures were obtained by the Food Inspector under Sub-section (7) of Section 10 of the Act, one has fully supported the prosecution case and it is made out from his testimony as well as that of the Food Inspector that the sample of milk was taken from the petitioner while Jit Ram (P.W. 2) was also present. The requirements of Sub-section (7) of Section 10 were thus fully complied with.
5. The real question is as to whether the depositions of the Food Inspector and Harbans Lal Halwai (P.W. 3) are reliable and should be acted upon. To that question my answer unhesitatingly is in the affirmative. Even though it may be said that the Halwai would be expected to toe the line of the Food Inspector, there is no reason why the Food Inspector should falsely involve the petitioner in this case. The assertion of the defence is that no sample at all was secured by the Food Inspector. This assertion I refuse to believe in the absence of any cause for the Food Inspector to have animosity against the petitioner.
6. The only other contention raised on behalf of the petitioner is that the sentence awarded to him should be reduced. The sentence is the minimum provided by law for a first offence and although in proper cases a still lower sentence can be awarded, no factors such as would justify the adoption of such a course in the instant case have been made out. Finding the conviction to be well-based and the sentence not liable to be reduced, therefore. I dismiss the petition.