S.S. Dewan, J.
1. This revision is directed against the judgment of Sh. B. S. Nehra, Sessions Judge, Ferozepur upholding the conviction of the petitioner Under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the sentence of rigorous imprisonment for six months and a fine of Rs. 1,000/-; in default rigorous imprisonment for three months.
2. The prosecution case, briefly stated, is that on November 24, 1976 at about 9.00 a.m. Dr. K. L. Issar, exercising the powers of Food Inspector, intercepted the petitioner on the Mall road, Ferozepur, who was then carrying milk in a drum on his cycle. The Food Inspector bought 66 0 mls. of milk from the petitioner after paying its requisite price. The necessary documents were prepared at the spot. After adding the requisite amount of formaline the milk was duly sealed in three separate bottles. One of the bottles was sent to the Public Analyst, who vide his report, Ext. P.E., opined that the sample contained 3.4% of milk fat and 9.1% of milk solids non-fat and declared the sample to be deficient in milk fat by 24% of the minimum prescribed standard. The petitioner was thereafter prosecuted by the Food Inspector. The defence of the petitioner was that he was falsely involved in the case. The prosecution examined two witnesses, namely Dr. K. L. Issar, PW 1 and Karam Chand. Store-keeper as PW2. The learned Magistrate accepted the prosecution case and convicted the petitioner for the charge framed against him and sentenced him as indicated above. This revision application is directed against the confirming appellate decision.
3. It is not disputed that the Food Inspector made a statutory purchase and on analysis the sample has been found to be adulterated. The question canvassed in support of the petitioner is that there has been no compliance of Section 10(7) of the Act and, therefore, the prosecution is vitiated.
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 an unbreakable rule and the only condition which could admit of an exception was, when the prosecution established that it was not possible.
4. The provisions contained in the Sub-section (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 arid, 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 1974 FAC 102 : 1974 Cri LJ 672 (SC) (at p. 6?3 of Cri LJ). After quoting the Sub-section (, the court observed :-
There can be no doubt that, one or more persons 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 1964, Sub-section (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 S, 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 Swarup v. The State, .
5. In the instant case there is no evidence that the Food Inspector made from the locality. Karam Chand, who is admittedly an official witness, has admitted in his cross-examination that when the Food Inspector took sample from the petitioner, several persons had collected at the spot. There is thus positive evidence to show that some persons were available when the statutory purchase was being made. This is not a case where the Food Inspector took steps call any outsider and yet nobody was prepared to come and witness this 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. Undoubtedly the offence, if established, is serious. Food adulteration, has become a social menace in this country and Parliament is anxious to eradicate food adulteration by providing stringent punishment for the adulterator. Learned Assistant Advocate General 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 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 lacuna.
7. 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.