Muni Lal Verma, J.
1. The respondent was convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called the Act) and was sentenced to six months' rigorous imprisonment with a fine of Rs. 1.000/- in default to further suffer six months' rigorous imprisonment by the learned Magistrate First Class. Pathankot. He appealed against his conviction and sentence to the Court of Session, Gurdaspur. and the learned Additional Sessions Judge. Gurdaspur, allowed the appeal, set aside his conviction and sentence, and acquitted him. The State of Punjab, therefore, preferred this appeal against the aforesaid acquittal of the respondent.
2. In short, the prosecution case is that on 29-7-1967 at about 6.15 A. M. Shri Kewal Krishan, Food Inspector, accompanied by Dr. M. L. Tandon, raided the premises of the respondent where he was exposing 5 Kilos of cow's milk for sale in a container. Shri Kewal Krishan served the necessary notice upon him indicating his intention to purchase milk for purposes of analysis. He then made whole of the milk homogeneous and purchased 660 milliliters from it from the respondent on payment of 75 Paise as its price. The said milk of the sample was divided into three equal parts and poured into three dry and clean bottles. Shri Kewal Krishan added 16 drops of formalin as preservative into each of the said bottles and then the said bottles were stoppered, labelled, fastened and wrapped in thick paper separately. One of the said bottles was given to the respondent.
The second sealed bottle, containing Sample of the milk, was sent to the Public Analyst. Chandigarh, who. after due analysis of the milk, found that the said milk was deficient in milk solids not fat by 1.4 per cent. The third sealed bottle, containing milk of the sample, had been retained by Shri Kewal Krishan in his office. On receipt of the necessary certificate from the Public Analyst that the aforesaid milk was adulterated. Shri Kewal Krishan made complaint under Section 16(1)(a)(i) of the Act. The learned Magistrate, after trial, convicted and sentenced him, and his appeal against his conviction and sentence succeeded as stated above. We have heard the arguments and examined the record.
3. It has been ruled in the judgment of the Supreme Court recorded in Laxman Kalu Nikalie v. The State of Maharashtra : 1968CriLJ1647 that
It is now the settled law that the powers of the High Court in an appeal against the acquittal are not different from the powers of the same court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Session and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge, must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption, and this presumption must also receive adequate consideration from the High Court.
This rule was again Lald down in Keshav Ganga Ram Nayge v. State of Maharashtra. : 1971CriLJ798 .
4. Shri Kewal Krishan and Dr. M. L. Tandon supported the prosecution story in its entirety. They have unanimously deposed that at 6.15 A. M, on 29-7-1967 they went to the premises where the respondent had exposed 5 Kilos of cow's milk for sale and Shri Kewal Krishan purchased 660 millilitres out of the said milk after duly stirring the same, from the respondent as sample for analysis on payment of 75 Paise as its price and obtained receipt Exhibit P. B. from him. They added that Shri Kewal Krishan divided the said milk of the sample into three equal parts and poured the same into three dry and clean bottles and added 16 drops of formalin in each of the said three bottles by way of preservative.
It is in evidence that these bottles were corked sealed and packed and one of the said bottles was given to the respondent and the second bottle was duly sent to the Chemical Analyst, Chandigarh, while the third bottle had been retained by Shri Kewal Krishan in his office. The aforesaid statements of Shri Kewal Krishan and Dr. M. L. Tandon read consistent. The learned Additional Sessions Judge recorded acquittal of the respondent with the finding that the mandatory provisions of Sub-section (7) of Section 10 of the Act had not been complied with, most probably, thinking that Shri Kewal Krishan and Dr. M. L. Tandon were not independent witnesses while Mohinder Pal. another witness of taking of the sample, had not been examined. True, it appears from Notification No. 6508-ASOI-H.BII-66/28861. dated the 13th October. 1966 that Dr. M. L. Tandon being Medical Officer, Primary Health Centre. Gharota had powers of Food Inspector but. then there can be no presumption against his veracity or against the truthfulness of Shri Kewal Krishan merely on ground that they held powers of Food Inspector under the Act, It has been observed by the Supreme Court, in Babu Lal Hargovindas v. The State of Gujarat. : 1971CriLJ1075 that
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 he similar to an attesting witness to a 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. 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.
The utmost, that can be urged, is that having regard to human nature, as it is, since Kewal Krishan had conducted the raid and had taken sample of the milk, he was, may be sub-consciously interested in the success of the case. But it would not. by itself, be a ground, much less just, to doubt the correctness of the statement made by him. Similarly, the circumstance that Dr. M. L. Tandon who enjoyed the powers of the Food Inspector under the Act. had associated with Shri Kewal Krishan. or even might have supervised the raid in going to the premises of the respondent, from where sample of the milk had been taken, would not by itself, be a ground for doubting his veracity. The circumstances that Shri Kewal Krishan and Dr. M. L. Tandon had the powers of Food Inspectors under the Act and both of them were associated in the raid may. at the most, demand scrutiny of their statements. There is no suggestion, much less any evidence, to show that Shri Kewal Krishan or Dr. M. L. Tandon had any score to settle with the respondent or that they had any cause or motive to make false statement against him. Their presence at the time of taking of sample of the milk from the premises of the respondent is not disputed.
The defence version, as disclosed by the respondent in statement under Section 342, Criminal Procedure Code, and supported by his witnesses viz Munshi Ram (D. W. 1). Fakir Chand (D. W. 2) and Rasila Ram (D. W. 3) was that the sample of the milk was taken from the shop of the respondent in his absence when his servant was present there, and that Dr. M. L. Tandon had threatened him to thumb-mark the papers else he would be handed over to the Police and, therefore, he (respondent) had thumb-marked the same. The said defence version cannot be. however, accepted for various reasons.
Firstly the said defence version when put to Shri Kewal Krishan and Dr. M. L. Tandon. P. Ws. was negatived by them emphatically. Secondly. no question, suggesting that Munshi Ram. Faqir Chand and Rasila Ram. D. Ws., or any one of them was present at the time of taking sample of the milk, was addressed to Shri Kewal Krishan or to Dr. M, L. Tandon during their cross-examination. No explanation for omission to cross-examine them with regard to presence of the said D. Ws. or any one of them at the time when the sample of the milk had been taken, is forthcoming. The thumb-impressions of the respondent appear on notice Exhibit P. A, which had been served by Shri Kewal Krishan on him before taking of sample of the milk and on receipt Exhibit P. B, by means of which the respondent had received 0.75 ps. in cash from Shri Kewal Krishan as price of the milk taken by way of sample and also on Exhibit P.C. which had been prepared by Shri Kewal Krishan at the spoil and by means of which one of the bottles containing sample of the milk had been given to the respondent. The explanation of the respondent that he was made to thumb mark the aforesaid documents Exhibits P. A.P. B. and P.C. by Dr. M. L. Tandon is not acceptable because if it were so, the respondent must have made some report or complaint to the authorities superior to Dr. M. L. Tandon and Shri Kewal Krishan or even to the Magistrate concerned before his prosecution. He did not do so. As indicated above, no question, suggesting that Munshi Ram, Faqir Chand and Rasila Ram D. Ws, or any one of them was present at the time of taking of sample of milk was put to Shri Kewal Krishan or Dr. M. L. Tandon during cross-examination. Even the names of the aforesaid witnesses were not disclosed by the respondent in his statement under Section 342 Criminal P.C.
I am. therefore, not satisfied that they (the aforesaid D. Ws.) were, in fact, present at the time when sample of the milk was taken from the premises of the respondent. The offence punishable under Section 16(1)(a)(i) of the Act is grave one and the punishment provided for the same is deterrent. Therefore, it is no wonder that the respondent could prevail upon the aforesaid D. Ws, and had secured statements from them favourable to him. The defence version is of usual type and appears to have been put forth under the strain of necessity being convenient, and not because there is any truth in it,
Under the circumstances of the case, as soon as it is held, as I do. that none out of Munshi Ram. Faqir Chand or Rasila Ram was present at the time when Shri Kewal Krishan had taken milk by way of sample from the premises of the respondent, the defence version falls to the ground, and I have no hesitation in rejecting the same as false. It may be noted that even the defence version reads consistent with the prosecution case that milk of the sample was taken from the premises of the respondent. Now even if the defence version that the respondent was not present at the time of the taking of the sample and his servant was present there at that time is taken to be correct for the sake of argument though not conceding it to be correct it would render no assistance to the respondent, because the respondent was responsible as employer, for the act of his servant in selling or exposing the adulterated milk for sale as pure article. The provisions of Sections 7. 16 and 19 of the Act which are relevant for the purpose read as under:
7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute.
(i) any adulterated food.
X X X X
16(1). If any person
(a) whether by himself or by any other person on his behalf ....stores, sells or distributes, any article of food....
(i) which is adulterated ....he shall ....be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with a fine which may not be less than one thousand rupees.
X X X X :
19(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated ....article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
X X X X X X
5. All these provisions of the Act were considered in : 1961CriLJ747 regarding Sarjoo Parshad v. The State of Uttar Pradesh and it was observed that 'every person, be he an employer or an agent is prohibited from selling adulterated food and infringement of the prohibition is by Section 16 penalised.' It has further been observed in the said authority that 'an owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food.' AIR 1961 Assam 128 (SB) regarding Dr. Nirmal Kumar Purkayastha v. Narayan Chandra Saha is also to the same effect. In view of the aforesaid provisions of the Act and the authorities referred to above, the respondent cannot escape the criminal liability for the sale of the adulterated milk from the premises owned by him by representing that he was not present at the time when the milk had been taken by Shri Kewal Krishan from his servant for purposes of analysis.
Sub-section (7) of Section 10 of the Act reads as under:
(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).
6. The purpose of the safeguard provided by Sub-section (7) of Section 10 of the Act is that the act of the Food Inspector in taking sample of the article of food should be above suspicion and free from any doubt and as such the witness or witnesses collected by him to attest the taking of sample of article of food should be independent and disinterested so as to inspire confidence. But then contravention of Sub-section (7) of Section 10 of the Act does not per se vitiate the prosecution. An essential test in the event of non-compliance of the requirements of Sub-section (1) of Section 10 is that no prejudice is caused to the accused.
Relying on three judgments of this Court recorded on September 9. 1970, in Criminal Appeal No. 973 of 1967 (Punj) regarding Punjab State v. Lakshmi Narain recorded on January 9. 1970 in Criminal Revn. No. 1033 of 1968 (Punj) regarding Kanshi Ram v. State of Haryana and recorded on February 2, 1970. in Criminal Revn. No. 1158 of 1968 (Puni) regarding Ram Pal v. The State, the learned Counsel for the respondent maintained that the winesses who had been associated by Shri Kewal Krishan while taking sample of the milk were not independent and thereby he failed to comply with the provisions of Sub-section (7) of Section 10 of the Act and as such the order of acquittal, recorded by the Additional Sessions Judge, was correct. The facts of the aforesaid cases, relied upon by the learned Counsel for the respondent were, however, different.
In Lakshmi Narain's case, supra, Dharam Chand who was admittedly one of the witnesses regarding the taking of the sample, had negatived the prosecution case. He maintained that no formalin was added to the milk of the sample in his presence nor any bottle containing sample of milk had been handed over to Lakshmi Narain. The statements of Dr. Bakhshish Singh and Shri J. S. Dhameeja, Executive Magistrate, who were the other witnesses regarding taking of sample of the milk were contradictory on material points casting doubt about the taking of sample of milk from the can of Lakshmi Narain. The statement of Shri J. S. Dhameeja was found inconsistent with the statements of other witnesses viz. Dr. Bakhshish Singh and Shri Roshan Singh (Food Inspector) with regard to presence of the other witnesses viz. Dharam Chand and Gurdas Ram. when sample of milk had been taken. Then there was no evidence that the sample of the milk was representative one or that the milk had been properly stirred before sample had been taken from it.
In Kanshi Ram's case, supra. Ram Chand who was the attesting witness of taking of the sample was a milk vendor and as such he was under the influence of the Food Inspector (Shri Dharam Pal). Then the statements of Ram Chandar and Dharam Pal were discrepant respecting the appearance of other persons including Babu Ram when the sample of the milk had been taken. In Ram Pal's case supra, no witness other than Shri R. B. Survaria. Food Inspector, had been examined. Although he (Shri Survaria) admitted that several persons were Present when sample of the milk had been taken but he did not associate anyone of them while taking sample of the milk. The only witness who attested the taking of sample of milk was Sat Pal. He (Sat Pal) himself was a milk-vendor and his shop had been raided a few months earlier and he had not been prosecuted. So he could not be said to be independent witness and then he too was not examined in the aforesaid case.
In the case in hand, as pointed out above, the fact of taking of sample of the milk from the premises of the respondent is undisputed and the presence of Dr. M. L. Tandon at that time is not challenged. He is a respectable and responsible witness being public servant of the status of medical officer. There is nothing in the record not even a suggestion to show that he had any motive or cause to make false statement against the respondent. His statement reads consistent with the statement of Shri Kewal Krishan and suffers from no infirmity which can cast any adverse reflection on his credibility. Therefore, the learned Magistrate was right in concluding that he (Dr. M. L. Tandon) was independent and respectable witness, and in the circumstances of the case it would be wrong to say that he was not independent witness simply because he enjoyed the powers of Food Inspector being Medical Officer posted as in charge of Primary Health Centre. Gharota. It is in evidence that besides that Dr. M. L. Tandon attested the taking of sample of milk from the respondent. Surrinder Kumar. Sanitary Inspector, and Mohinder had also been joined by Shri Kewal Krishan when he took sample of the milk.
Shri Kewal Krishan maintained that the said Mohinder was witness of the locality. No question, suggesting that he (Mohinder) was not witness of the locality or that he was inimical towards the respondent or that he was, in any way, under the influence of Shri Kewal Krishan, was addressed to him (Shri Kewal Krishan) during cross-examination. Therefore. it would not be correct to say that he (Mohinder) was not independent witness simply because he was not examined. It may be noted that Shri Kewal Krishan had given him up with the statement that he (Mohinder) had been won over by the respondent. There is nothing to doubt the said statement of Shri Kewal Krishan and I think he was not obliged to examine him (Mohinder) when he had reason to believe that he (Mohinder) had been suborned by the respondent.
It thus, follows from the above that it cannot be said that there had been non-compliance of the provisions of Sub-section (7) of Section 10 of the Act because Shri Kewal Krishan had taken or he did call the witnesses including Mohinder. when he took sample of the milk from the respondent. It may be noted that provisions of Sub-section (7) of Section 10 of the Act require the Food Inspector to call one or more persons to attest the taking of sample of article of food. It. however, does not put him under duty to examine all the witnesses who had attested the taking of sample of article of food. Non-production of such witness or witnesses without any explanation may give rise to inference that he or they might not be giving evidence favourable to the prosecution, but it (non-production of such witness or witnesses) is not per se ground for doubting the credibility of the other witness, much less to dismiss the prosecution case. '
It is. thus, clear that in the circumstances of the case when the taking of sample of milk from the premises of the respondent is not denied and the defence version even if the same is taken to be correct, renders the respondent liable for the offence by virtue of the provisions contained in Sections 7 and 16 referred to above, and the presence of Dr. M. L. Tandon at the time of taking of sample of the milk is undisputed and he cannot be justly said to be interested witness. I think the reasons, given by the learned Additional Sessions Judge were not justified and the acquittal of the respondent was not warranted and it has rather resulted in cross miscarriage of justice.
7. There is ample evidence that one of the three bottles containing sample of the milk had been duly sent to the Public Analyst. Chandigarh, who, on due analysis, found that it contained fat to the extent of 4.2 per cent. and, solids other than fat to the extent of 7.1 per cent. (vide his report Exhibit P. 1). The minimum prescribed stand and for the cow's milk is that it should contain fat to the extent of 40 per cent. and solids other than fat to the extent of 8.5 per cent. It is thus, clear that the milk of the sample was deficient to the extent of 1.4 per cent. in solids other than fat. As such, the Public Analyst had declared the same to be adulterated milk. There is nothing to doubt the aforesaid report of the Public Analyst. Therefore, it is amply proved that the respondent had sold adulterated milk and as such the charge under Section 16(1)(a)(i) of the Act was conclusively established against him. The offence was committed as back as on 27-9-1967 i.e., four and half years' ago. The respondent has suffered 3 days' rigorous imprisonment'. He had been on bail. The milk, sold by him was deficient to the extent of 1.4 per cent. in solids other than fat. In these circumstances. I think the minimum sentence may not be proper or called for and I feel that sentence of imprisonment already suffered by him with a fine of Rupees 1500/- will do.
8. Consequently. I allow this appeal, set aside the acquittal recorded by the learned Additional Sessions Judge and find the respondent guilty of the offence under Section 16(1)(a)(i) of the Act and sentence him to rigorous imprisonment already suffered by him with a fine of Rupees 1500/-; in default of fine he shall suffer rigorous imprisonment for six months. He is on bail. He is given one months time to deposit the amount of fine in the trial Court, failing which he shall surrender to bail and be sent to jail for serving the necessary sentence of imprisonment in default of fine.
Pritam Singh Pattar, J.
9. I agree.