Rajinder Sachar, J.
(1) These are three appeals which will be disposed of by the same judgment. The firm Chela Ram Madan Lal and the two respondents Madan Lal and his Father Chela Ram were sent up for trial under Section 7 read with Section 16 of the Prevention of Food Adulteration Act for storing for sale Haldi powder, chilly powder and Amchur powder at their godown No. 150/151, Gali Wai Wali, Masjid Teber Khan, Delhi.
(2) Prosecution story was that some time in July 1970 Khem Singh Dsp, Cbi had gone to the godown No. 150-151 and as the doors of premises 151 Were broken he got removed the goods to the other premises and locked the same. On 18.2.71 Food Inspector M M. Kathpalia and others went Along with the Dsp to the premises 150-151. They found Madan Lal respondent present there and when the Food Inspectors etc. asked for samples from Madan Lal, he refused to give. A notice was given to him and goods were seized and produced in the court of a Magistrate who ordered that samples be taken. Accordingly samples of chillies powder, haldi powder and Amchur powder were taken in the presence of the Magistrate and the same having been divided into three equal parts and filling them in three clean and dry bottles were sent to the Public Analyst who found them to be adulterated. This report of the Public Analyst was sent to the accused by registered post. Thereafter prosecution was launched. The premises in question are undoubtedly owned by one Moti Lal Goel. His evidence is that be had let it out to some other person about 10 years back and he had not let it out to the respondent; that since after the alleged raid in July by C.B. I. the possession of godown is with him. Evidence was led by the prosecution to prove that the godown has been in possession of the respondept, but the same has been disbelieved by the trial court who came to the conclusion that the godowns were not in possession of the respondents. We are taking an acquittal appeal and cannot re-assess the evidence of facts ourselves, unless we find demonstrable perversity in the finding of. the trial court, which We do not. As such it has to be accepted that the godowns were not in possession of the respondent , that finding, the acquittal must be upheld.
(3) The learned Magistrate, however, went on , acquit the respondent on another ground also. He observed that goods had been seized under Section 10(4) of the Act and the legislative intent behind this section is only preventive and nothing more, thereforee, no person can be convicted under Section 7 read with Section 16 of the Act. According to him, even if the goods were to be found adulterated, no conviction could result. We cannot agree. In this conclusion the learned Magistrate has completely misdirected himself on the proposition of law. 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, misbranded food article or any food article in contravention of any provision of the Act or rules made there under. Such person is liable to be prosecuted. Reliance by the learned Magistrate on the authority 1972 Fac 765 (Chuni Lal MotiRam Temakuwala V. M.B. Shelat) is misplaced. That authority only lays down that the provisions of section 11(4) of the Act being preventive in nature no sanction was necessary for prosecution under section 20 because for an application filed under section 11(4) of the Act no sanction was necessary.
(4) Now no exception is made if goods have been seized under Section 10(4) of the Act.
(5) Mr. Soni emphasises that when sample is taken, one of the samples has to be given to the accused. In this case it is on record that when Food Inspector and others were on the spot and they asked the accused to give sample the accused refused to give samples and went away. Thereafter the goods were seized after'giving notice. Mr. Soni concedes that Section 11(2) states that where the persons from whom the sample was to be taken declines to supply it, the same can still be taken and also sent to the Public Analyst, the only requirement in law being that the Public Analyst will divide it into two parts, shall seal and fasten up those parts and give one part to the Food Inspector. Evidently the purpose is that in case the sample is taken in the absence of vendor, the Public Analyst should retain half the sample analysed so that later on if legal proceedings are taken, his part of the sample can be summoned so as to lend reassurance that the sample was intact and not tampered with.
(6) According to Public Witness 2, Magistrate had directed to take samples in three clean bottles according to rules. Third part of the sample was also avails able before the Magistrate in case he wanted to send it to the Director, CFL.
(7) The goods were seized from a godown in the absence of a person who owns it and the person present refused to give sample. No sample need be taken on the spot, under Section 10(4) of the Act. To such an eventuality section 11(2) is inapplicable and the sample cannot be given to the tender because there is no vendor when goods are seized under Section 10(4) of the Act. That is why sample is taken before the Magistrate and also half sample is kept by the Public Analyst. We see no reason why the sample .taken before the Magistrate and divided into three parts should not be considered a sufficient safeguard. In our view the learned trial court was completely wrong that even if the goods were found to be adulterated no prosecution could follow. -
(8) Mr. Soni then urged that the seal of the third sample could have been changed. There is no such suggestion in the evidence nor such a finding.
(9) In our view it cannot be held in law that prosecution under Section 7 read with section 16 cannot take place where goods are seized under Section 10(4) of the Act.
(10) There is another infirmity on the question oF law in the trial Magistrate's judgment. The court has observed that in all the three cases the firm Madan Lal and Chela Ram cannot be convicted in view of the fact that in all the cases the adulteration was such in which no sentence less than six months imprisonment could be given and corporal punishment cannot be given to the firm. This is a wrong view of the law, as the Full Bench in Municipal Corporation of Delhi vs. Chela Ram and another, 1984. 1 Fac 210 held that even if a firm cannot be sent to jail the sentence of fine can be imposed on it. thereforee, the view that a firm cannot be convicted cannot be sustained.
(11) The result is that we accept the appeal and set aside the acquittal. But in view of long pendency of this appeal since 1976, we are not inclined to impose any punishment. Appeal disposed of accordingly.