R.N. Aggarwal, J.
(1) Ram Murti and Pyare Lal respondents were tried in the court of Shri R.P. Punjab Magistrate First Class, Delhi. on the charge under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. The trial Magistrate found both the respondents guilty of the offence charged with an sentenced the first respondent to rigorous imprisonment for six months and a fine of Rs. 1.000- and in default of payment of fine to undergo rigorous imprisonment for two months, and the second respondent to rigorous imprisonment for one year and a fine of Rs. 2.000.00 and in default of payment of fine to undergo rigorous imprisonment for four months. Both the respondents, dissatisfied with their conviction and sentence went in appeal to the Sessions Judge. The appeal was heard by Shri Muni Lal Jain. Addl. Sessions Judge, on 9th June. 1966. The learned Additional Sessions Judge allowed the appeal of both the respondents and quashed their conviction and sentence. The Municipal Corporation of Delhi has come in appeal to this Court under Section 417 of the Criminal Procedure Code against the order of acquittal of the respondents passed by the Addl. Sessions Judge.
(2) The case of the complainant was that on 25th May, 1965 at 2.15 P.M., Shanti Nath, Food Inspector, Dina Nath, Food Inspector and Lekh Raj, Food inspector, went to the premises of Pyare Lal situate at 30 Lehna Singh Market, Sabazimandi, Delhi. Pyare Lal was at the relevant time engaged in the business of the sale of Haldi and other varieties of spices. Ram Murti respondent was the salesman-cum- sales inspector of Pyare Lal. Pyare Lal was doing the business under the name and style 'Kesri Haldi'. Shanti Nath. Food Inspector, disclosed his identity to Ram Murti and purchased 450 gms. of Turmeric (grinded) out of a bag containing about 20 or 25 seers of Turmeric, on payment of Rs. 1.13P as its price, for the purposes of analysis. The Food Inspector divided the sample in three parts and put it in three clean and dry bottles. The Food Inspector sealed the bottles and the sample was numbered as S. 2640. One part of the sample was sent to the Public Analyst, one part was given to Ram Murti accused and the third part was retained by the Food Inspector. The Food Inspector prepared the inventory Ex. P.3 with regard to the seizure of the sample. The taking of the sample was witnessed by Lekh Raj and Dina Nath, Food Inspectors.
(3) On the same date and at about the same time Lekh Raj Bhat. Food Inspector, purchased 450 gms. of Turmeric (grinded) out of a plastic bag containing one kilo. of Turmeric from Ram Murti. Lekh Raj divided the sample in three parts and put it in three clean and dry bottles and sent one part of the sample to the Public Analyst, one part was given to the accused and the third part was retained by the Food Inspector. The second sample was given the No. LR-2722. The taking of this sample was witnessed by the other two Food Inspectors. The Public Analyst analysed the sample No. S-2640 on 10th June. 1965 and found it to be adulterated with 10 per cent foreign extraneous matters of starches. Sample bearing No. LR-2722 was analysed by the Public Analyst on 12th July 1965 and he found the sample to be adulterated with foreign extraneous matters of starches to the extent of 10 per cent.
(4) On receipt of the reports of the Public Analyst, the Assistant Municipal Prosecutor filed two complaints against the respondents under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. Both the complaints were consolidated at the stage of the defense evidence and were disposed of by one judgment by the trial Magistrate as well as by the Additional Sessions Judge. Case No. 243/3 relates to sample No. S-2640 and case No. 213/3 relates to sample No. LR- 2722. Ram Murti respondent in his statement under Section 342 Criminal Procedure Code . in case No. 243/3 (sample No. S. 2640) admitted that the Food Inspector had taken the sample of turmeric from him on 25th May, 1965, at about 2.15 P.M. Ram Murti stated that he was the sales agent of Bhasin Masala Company and that he had nothing to do with Kesri Haldi Company. Ram Murti stated that on the alleged date and time he was carrying goods in a bag on a bicycle near Sabzimandi, Ghantaghar. The Food Inspector stopped him and took the sample from him. Ram Murti further stated that the Food Inspector did not pay to him the price of the sample. Ram Murti admitted that the Food Inspector had sealed the bottles in his presence but denied the delivery of any bottle to him. Ram Murti further stated that both the witnesses to the sampling were not present at the spot. Ram Murti further stated as follows : 'I am still a commission agent of Bhasin Masala Company. The Food Inspector asked me the name of Kesri Haldiwala which I did not know. He told me that it was Pyare Lal and that I should write it down and in case I do not write, he would get arrested. He got it writeen. under threat.'
(5) Pyare Lal accused in his statement under Section 342 Criminal Procedure Code . stated that Ram Murti was not his employee nor he had kept the goods at his shop on his behalf and that he had no knowledge of the taking of the sample. Pyare Lal further stated that he had been involved in the case at the instance of Bhasin Masala Company due to business rivalry. Both the respondents made more or less similar statements in their examination under Section 342 Criminal Procedure Code . in the other case. The respondents in support of their case examined DW. 1 Chanan Lal, DW.2 Budhha Singh, DW.3 Madan Lal, DW.4 Shri S. Roy, Public Analyst. DW.5 Radha Krishan Anand, DW. 6 Dr. C.P. Sharda, DW. 7 Pritam Dass and DW. 8 Sikander Lal Anand.
(6) The learned Additional Sessions Judge had acquired the respondents on two grounds (a) that the taking of two samples at a time from the shop of the respondents renders the prosecution case suspicious. and (b) that the requirements of Section 10(c)(7) of the Prevention of Food Adulteration. Act were not complied with and. thereforee, the conviction is not legal. On these two grounds the learned Additional Sessions Judge allowed the appeal and quashed the conviction and sentence of the respondents.
(7) IN. our view none of the two reasons given by the Additional Sessions Judge for acquitting the respondents is sound in law, Shanti Nath. Dina Nath and Lekh Raj Bhat, Food Inspectors, had gone to the shop of the respondent Pyare Lal where he carried on the business of selling chillies, masalas, Haldi, etc. The Haldi was found lyine in an open gunny bag and in plastic packets. Shanti Nath took sample of the Haldi from the open gunny bag and Lekh Raj took sample from the plastic packet. The factum of taking of the samples was not disputed. by Ram Murti, salesman. The plea taken by Ram Murti in defense was that he was not employed with Pyare Lal and that the samples were taken From him while he was taking Haldi in a bag on a bicycle near Sabzimandi. Ghantaghar. The plea in defense taken by Pyare Lal was that Ram Murti was not employed with him. Public Witness s Shanti Nath. Lekh Raj Bhat and Dina Nath deposed that the samples were taken from the shop of Pyare Lal at 30, Lehna Singh Market. The witnesses further deposed that Ram Murti, salesman-cum-sales inspector of the respondent Pyare Lal, was at the shop and the samples were taken from him. No question was put to the witnesses in cross examination that Ram Murti was not the salesman and that the samples were taken at a place other than alleged to by the witnesses. The Additional Sessions Judge was of the view that the lifting of two samples separately from the shop of the respondents on the same day and at the same time was unusual and that cast suspicion on the prosecution story. There appears to be no warrant for this finding. We have earlier observed that samples were taken by the Food Inspectors from different packings and there appears to be nothing suspicious about it.
(8) The next ground on which the Additional Sessions Judge had based the order of acquittal was that the provisions of Section 10(7) of Prevention of Food Adulteration Act, hereinafter called the Act, were not complied with and, thereforee, the conviction is not legal. Shri T.C. B.M. Lal. the learned Counsel for the Corporation contended that the Additional Sessions Judge was wrong in acquitting the respondents for the alleged non-compliance of Section 10(7) of the Act. Section 10(7) of the Act originally required that the Food inspector when he lakes action either under the provision of sub-section (1), (2), (4) or (6), should call as far as possible not less than two persons to be present at the time when such action is taken and take their signatures. The provisions of Section 10(7) were amended by Act 49 of 1964 and the amended provisions provided that the Food Inspector shall call one or more persons at the time when such action is taken and take his or their signatures. The provisions of Section 10 were the subject of interpretation in Babulal Hargovindas vs . State of Gujarat, : 1971CriLJ1075 . Their Lordships, while construing the requirements of Section 10(7). held-
'.. ... .there is nothing to indicate that the provisions of sub-section (7) of Section 10 have not been complied with. Even otherwise in our view no question of the trial being vitiated for non-compliance of these provisions can arise. 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 way minimising the need to comply with the aforesaid salutary provisions.'
(9) In another case Municipal Corporation of Delhi vs. Nathu Ram and the State, 1972 F.A.C.63, Hardayal Hardy, CJ. and V.S. Deshpande, J. held-
'THATthe provision of sub-section (7) of Section 10 of the Act prescribe only the manner in which the power of the Food Inspector to seize the sample of an article for examination to see whether it is adulterated is exercised. It is not in the power of the Food Inspector to ensure that members of the public would always be willing to act as witnesses to such a seizure. It was not the intention of the Legislature that the power of the Food Inspector could not be exercised at all unless and until he could secure the members of public to witness it. The power given to the Food Inspector was a substantive power conferred by the Legislature on him. He was, thereforee, entitled to exercise it. He was not to be prevented from doing so by circumstances which may be beyond his control such as the co-operation of the members of the public in acting as witnesses. He cannot be expected to do anything more than to try to enlist such co-operation. If he and two other witnesses say that he made an attempt to do so, that was sufficient compliance with the provisions of Section 10(7) of the Act. It could not be the intention of the legislature that somehow or the other he must succeed in getting such witnesses and that without them he could not exercise his power at all.'
(10) It is now a consistent view of this Court that provisions of section 10(7) are directory and not mandatory. Shanti Nath, Food Inspector, took the sample of turmeric from the respondent Ram Murti in the presence of Lekh Raj and Dina Nath, Food Inspectors. The inventory Ex. P. 3 with regard to the taking of the sample is witnessed by Lekh Raj and Dina Nath. Similarly, the proceedings with regard to the taking of the sample by Lekh Raj are witnessed by Dina Nath and Shanti Nath, Food Inspectors. Shanti Nath deposed that the proprietors of the adjoining shops gathered at the spot before the taking of the sample, that he asked them to witness the taking of the sample but they did not agree to do so. In cross-examination, Shanti Nath stated that there are residential houses above the shops, that he did not go to any residential house for calling witnesses. Dina Nath Food Inspector, deposed that before taking the sample, Shanti Nath, Food Inspector, had asked seven or eight persons for witnessing the sampling but they refused. In cross-examination, the witnesses stated that the Food Inspector had gone in the neighborhood for calling witnesses. Lekh Raj, Food Inspector, deposed that Shanti Nath had gone to a factory for calling witnesses but the employees working in that factory had refused to attest the sampling. In the connected case, the witnesses have similarly stated that an effort was made to join independent witnesses before taking the sample but no independent witness had come forward to witness the sampling. The statements of the Food Inspectors have to be weighed just like the testimony of any other witness. The mere fact that the Food Inspector happens to be an official witness will not by itself be enough to reject his testimony without there being any other reason or circumstance. We have carefully perused the testimony of Public Witness s Shanti Nath, Dina Nath and Lekh Raj Bhat and we find no cogent reason to disbelieve their statements. We have in the earlier part of the judgment mentioned that the respondent Ram Murti has not denied the factum of the taking of the samples from him. The plea taken by Ram Murti in defense was that he was employed as salesman with Bhasin Masala Company and that he had no connection with Kesri Haldi company owned by Pyare Lal and that the samples were taken from him by the Food Inspectors while he was taking turmeric in a bag on a bicycle near Ghantaghar, Sabzimandi. The defense taken by Pyare Lal was that Ram Murti was not employed with him and no sample was taken from his shop at 30, Lehna Singh Market.
(11) We have gone through the defense evidence and in our view it is wholly without substance. Public Witness s. Shanti Nath, Dina Nath and Lekh Raj Bhat, Food inspectors have in their statements in Court stated that they had taken the samples from the shop of Pyare Lal at 30. Lehna Singh Market and Ram Murti was the salesman-cum-sales inspector of Pyare Lal. In cross-examination, this part of the statement of the witnesses was not challenged. No suggestion was made to the witnesses that Ram Murti was not an employee of Pyare Lal and that the samples were taken at some other place. In the inventory Ex. P. 3 (case No. 24 3/3) and in the inventory Ex. Pb (case No. 213/3) Ram Murti had made a note that 'he is working as sales inspector with Pyare Lal'. The inventories are signed and thumb marked by Ram Murti. The accused in support of their defense examined a few witnesses. DW. 1 Chanan Lal. Partner of Bhasin Masala Company, deposed that he did not know Pyare Lal and Ram Murti. The witness stated that Sikander Lal was their salesman and was still working with their firm. DW. 8 Sikander Lal deposed that he was working as a salesman with Bhasin Masala Company and except him there was no other salesman with Bhasin Masala Company. It would be clear from the testimony of DW. I and DW. 8 that the plea of Ram Murti respondent that he was working with Bhasin Masala Company is not true. DW. 2 Budhha Singh deposed that Pyare Lal accused was the proprietor of Kesri Haldi and his shop was situated in Lehna Singh Market and that Ram Murti accused was not an employee or salesman of Pyare Lal. DW. 3 Madan Lal made a similar statement. We have no hesitation in finding that DWs. 2 and 3 have not made a true statement. Pyare Lal had not produced his Employees' Register .to prove that Rain Murti was not his employee. DW. 7 Pritam Das deposed that in May 1965 he was sitting on the shop of Kumar Electric Works. Ghantaghar at noon time and he saw two or three Food Inspectors had stopped Ram Murti and had taken some samples from him. We have gone through the statement of DW. 7 carefully and in our view his statement is not true and he had become a witness only to favor the accused. The testimony of Public Witness s. Shanti Nath, Dina Nath and Lekh Raj Bhat that the samples were taken from the shop of Pyare Lal where Ram Murti was working as a salesman have gone unchalleng ed in cross-examination and there appears to be no reason to disbelieve their testimony.
(12) Ram Murti admitted in his statements under section 342 Criminal Procedure Code . that the samples of turmeric were taken from him by the Food Inspectors. Shri Tandon and Shri Ghansham Das; learned counsel for the respondents have not seriously disputed that Ram Murti was the salesman of Pyare Lal and the samples of Haldi were taken from the shop of Pyare Lal. Shri Ghansham Das contended that the samples were taken by the Food Inspectors at the same time and it was not possible for Ram Murti respondent to have watched the taking of both the samples at the same time. There is no substance in this argument. Both the samples were taken from the same shop. There appears to be no basis to hold the taking of two samples by the Food Inspectors at the same time had in any way prejudiced the accused.
(13) On a perusal of the evidence produced on the record we are of the view that the prosecution has established that the samples of turmeric were taken by the Food Inspectors from the shop of Pyare Lal where Ram Murti respondent was working as a salesman. Both the samples were found to be adulterated by the Public Analyst. The counterpart of the sample No. LR-2722 in possession of the respondents was sent to the Director, Central Food Laboratory, Calcutta for analysis at the request of the respondents. The Director had on examination of the sample found the same to be adulterated with foreign starch.
(14) Shri Ghansham Das contended that the report of the Director is defective in as much as it does not give the quantity of foreign starches found in the sample and no reliance can be placed on such a report. This argument is without merit. Rule 44(h) prohibits the sale of turmeric containing any foreign substance. The presence of foreign .starches being specifically prohibited, it was unnecessary to state the Quantity, in Municipal Corporation of Delhi vs . Sat Pal Kapoor, , it was held by S.B. Capoor and A.N. Grover. JJ.
'INevery case of a prosecution under the Act it is not necessary for the Public Analyst to state the exact quantity of foreign substance present in the sample sent to him. When the foreign substance happens to be one the presence of which is absolutely prohibited in that particular article of food, it would be unnecessary to state the quantity. If synthetic vinegar contains sulphuric acid in any quantity it shall be deemed to be adulterated and its sale or storage for sale will be a contravention of the provisions of the Act and rules made there under and as such punishable under Section 16 of the Act. It is not necessary for the Public Analyst to mention the quantity of sulphuric acid that is present in the sample.'
(15) The next question that arises for determination is the question of sentence. The samples of turmeric seized from the respondents were found to be adulterated with foreign starches. Rule 44(h) of the Prevention of Food Adulteration Rules 1955 provides that no person shall either by himself or by any servant or agent, sell turmeric containing foreign substances. The adulteration found in the samples in question was in contravention of Rule 44(h) and it would fall under Section 2(i)(b) of the Act. Section 7 of the Act provides that no person shall himself or by any person on his behalf manufacture for sale. or store, sell or distribute 'any adulterated food' or any article of food in contravention of any other provision of the Act or of any rule made there under. Section 16 of the Act provides that if any person sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health, (ii) other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of the Act or of any rule made there under, he is liable to be punished with a minimum sentence of imprisonment of not less than six months and a fine of not less than Rs. 1000.00. The proviso to Section 16 gives discretion to the Courts in the matter of sentence in case the offence is under sub-clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of Section 2 or misbranded under sub-clause (k) of clause (ix) of Section 2 or if the offence is under sub-clause (ii) of clause (a).
(16) Shri Ghansham Dass contended that the offence would fall under sub-clause (ii) of clause (a) and, thereforee, the proviso to Section 16 would be attracted. We regret our inability to accept this contention. Sub-clause (ii) of clause (a) will not apply to an article of food which is adulterated under Section 2(i)(b). This view finds support in two decisions of this Court (1) Municipal Corporation of Delhi vs. Ram Labhaya, Cr. A. No. 19/66 decided on 18th August, 1970(4) by S.N. Shankar and S. Rangarajan, JJ. and (2) Cr. R. No. 51/68 Municipal Corporation of Delhi vs. Chela Ram decided on 16th March 1970 by one of us.
(17) For the reasons stated above, we are of the view that the proviso to Section 16 will not be applicable to the case in hand.
(18) Shri Ghansham Das contended that the respondents were acquitted in 1966 and that in the circumstances of this case the respondents should be given the benefit of the provisions of the Probation of Offenders Act. There appears to be some force in this contention of the counsel. The samples in question were taken from the respondents in 1965. The respondents were convicted by the trial Magistrate but they were acquitted by the Additional Sessions Judge in 1966. The appeal against the acquittal of the respondents has come up for consideration before us after a lapse of six years. The respondents are first offenders. Pyare Lal respondent has filed an affidavit stating therein that he has closed the business of selling Haldi, etc., and he is now doing the hosiery business. Ram Murti is no longer in service of Pyare Lal. Pyare Lal has further stated in the affidavit that he is lying ill with Asthma since February 1970 and is under treatment at Patel Chest institute. Delhi. Pyare Lal produced before us the Out Patient Deptt. card in support of his affidavit. We are quite conscious that the adulteration of food is an anti social activity and it needs to be curbed with a strong hand and the provisions of the Probation of Offenders Act should not be invoked lightly. However, in the circumstances of this case we feel that it will serve no useful purpose to send the respondents to jail.
(19) We allow the appeal and set aside the order of acquittal of the respondents and convict the respondents under Section 7 read with Section 16 of the Prevention of Food Adulteration Act but instead of sentencing them at once to any punishment we order that they be released on probation under Section 4 of the Probation of Offenders Act on their entering into a bond in the sum of Rs. 2000.00 with one surety in the like amount each undertaking to keep peace and be of good behavior for a period of two years and further to receive the sentence whenever called upon to do so during such period. Respondent Pyare Lal is further ordered to pay Rs. 2000.00 as costs of the proceedings. We direct that the respondents would furnish the requisite bonds to the satisfaction of Shri Muni Lal Jain, Additional Sessions Judge within two weeks. Pyare Lal respondent is allowed two weeks time to deposit the costs of Rs. 2000.00. On the failure of the respondents to comply with the aforementioned directions, the respondents will undergo rigorous imprisonment for six months and pay a fine of Rs. 1000.00 each and in default of payment of fine will undergo further rigorous imprisonment for one month.
(20) Before we part this case it may be mentioned that respondent Ram Murti was served on 2nd November, 1966. An actual date notice was issued to Ram Murti at the address on which he was earlier served but the notice was received back with the remarks that he had left without address and the shop was closed.