M.M. Ismail, J.
(1) This is a criminal revision filed against the conviction and sentence of the petitioner under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954, and when this case came up for Admission on 2nd May 1967, I admitted the case only on the ground of alleged non-compliance with section 10(7) of the said Act.
(2) When the case was taken up in the forenoon, the counsel for the petitioner was nto present, and Mr. Safeer, appearing for the State, very fairly assisted me to go through the record and decide the case. Section 10(7) of the Act prior to its amendment in 1964, provided that the Food Inspector when taking any action under clause, (a) of. sub-section (1), sub-section (2), sub-section (4) or sub-section (6) shall, as far as possible, call nto less than two persons to be present at the time when such action in taken. In view. of the use of the words as far as possible'., there was a difference of opinion as to the provisions of the section being mandatory or directory. However now the section has been amended by the Prevention of Food Adulteration (Amendment) Act No 49 of 1964, and the amended section reads as follows :-
'WHEREthe 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-bis or their signatures.'
After this amendment the position is clear, namely, that the provisions of this sub section are mandatory and non-compliance with the same will render the conviction illegal.
(3) In this particular case there has been no independent witness examined on behalf, of the prosecution to the effect that such witness was present at the time when the simple was taken One Harbhajan Singh was examined as a defense witness and the learned Additional Sessions Judge, observed with reference to his evidence as follows -
'EVENHarbhajan Singh. antoher attesting witness of the inventory Exhibit P. C examined by the appellant in defense, while mak ing the writing R to B did nto mention that fact. His statement that the sample was taken in the absence of the appellant is thus obviously false and it is proved beyond doubt that be has been work. over by the appellant.'
This certainly cannto be taken to be the evidence in fulfillment of the requirements of section 10(7) of the Act. For one thing, this Harbhajan Singh was examined as a defense witness and he was nto examined as a prosecution witness in support of the prosecution. Secondly, even his evidence does nto make it clear that he was present at the time when the sample was taken. Looking from any point of view, it is clear that in this case no independent witness was present at the time when the sample was taken as required by section 10(7) of the Act and consequently there has been a failure to comply with the mandatory requirements of that section. In view of this, the conviction cannto be sustained. thereforee, I reverse the orders of the Courts below, set aside the conviction and acquit the petitioner herein,
(4) I must record my thanks to Mr. Safeer for assisting me to dispose of this case in the absence of the counsel for the petitioner in spite of my waiting till the after noon.