E.K. Moidu, J.
1. This appeal by the State is against the acquittal of the 1st accused in O.G. 20/69 by the District Magistrate (Judicial), Kottayam, in respect of an offence under Sections 7(1) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1951 (Act 37 of 1954).
2. On the morning of 12-12-68 at about ,10.30 a.m. the predecessor of P. W. 1, Food Inspector, Kumarakam Panchayat, one deceased Itticheriya, went to the Kumarakam market accompanied by his peon, P. W. 2, Rajappan when they intercepted adulterated Ice candy which was being carried by the 1st accused-respondent for gale in an Ice box within the market, out of which Itticheriya purchased 80 Ice candy sticks worth Rs. 1-50 from the respondent and in token of the receipt of the amount the respondent issued Ext. P-3 receipt. Then Ext. P-1, Form No. 6 notice was issued by the Food Inspector to the respondent, which was also acknowledged by him. The sample taken by the Food Inspector was divided into 3 parts and they were separately bottled and sealed on application of the requisite preservative. One such sample was given to the respondent and each of the remaining two samples were sent, one to the Court and the other to the Public Analyst. Ext. P-2 is the mihazar prepared by the Food Inspector as required by Sections 10 and 11 of the Act referred to above. Ext. P-2 mahazar was not only signed by the respondent, but also by two witnesses, who are examined as P. W. 3, Aniyan and P. W. 4, Narayanan. The Public Analyst on examination of the sample found that it contained artificial sweeteners, saccharin and dulcin and is therefore adulterated, and that the use of dulcin in food is not permitted on account of the fact that its consumption is injurious to public health. He also found that no decomposition had taken place in the sample, that would interfere with the analysis. Ext. P-5 is the report by the Public Analyst. On receipt of the report, P. W. 1, the present Food Inspector of the Panchayat, laid the charge against the respondent as well as the 2nd accused, who was found to be the owner of the Ice candy which was sent for sale through the reapondent. The respondent had nothing to say as against the evidence adduced against him when be was questioned under Section 342, Criminal P. C. however, the 2nd accused was discharged by the Court below.
3. The lower Court on an examination of the evidence found that the prosecution did not comply with the provisions of Section 10 (7) of the Act and therefore the prosecution is not sustainable thereby the respondent was acquitted. The appeal is against that acquittal.
4. The evidence of P. W. 1, the present Food Inspector of the Panchayat, is that the provisions of the Act had been complied with in the instant case, There is also the evidence of P. W. 2 'to corroborate the evidence of P. W. 1 in the same manner. But, P. W. 8 turned hostile and P. W. 4 in his cross-examination did not support the prosecution that he saw the purchase of the Ice candy from the respondent. However, there is the evidence of P. Ws. 1 and 2 to prove the purchase. The former Food Inspector died after the incident and therefore P. W. 1 the successor-in-office, had been examined. The learned Counsel of the respondent- disputes the fact that there was sufficient evidence to establish that the purchase of lee candy from the respondent was true, This depends upon the appreciation of the evidence in the case. It would appear from the reasoning of the learned District Magistrate that the evidence of P. W. 2 was not sufficient to prove the purchase. In this regard certain clinching circumstances may be seen. It is proved that Ext. P-3 is a voucher which was issued by the respondent himself to the Food Inspector. It contained the left hand thumb impression of the respondent as well as his signature. Ext. P-1, Form No. 6 notice, bad also been acknowledged, by the respondent. Similarly, the mahazar, Ext, P-2, was not only attested by the respondent, but also by P. We. 3 and 4. P. Ws. 3 and 4 admit that they signed the mahazar Ext. P-2, but they denied having Been the purchase. When Exts. P-1 to P-3 were put to the respondent under Section 342. Criminal P. C., his answer was that he had nothing to say about them. The evidence of P. W. 2 is conclusive on Exts. P.2 & P.3. The evidence of P. Ws. 2 to 4 read with the statement of the respondent revealed that the purchase of the Ice candy from the respondent was true, There was therefore, no reason to think that the prosecution would have launched a false case against the respondent. There is sufficient evidence to connect the respondent to the incident. I find, disagreeing with the learned District Magistrate, that the prosecution has proved its case beyond a reasonable doubt that the sale of Ice candy by the respondent to the Food Inspector at 10.80 a.m. on 12-12.68 was true.
5. It would appear from the judgment of the lower Court that the acquittal of the respondent was based on the sole ground that there had not been the compliance of the provisions of Section 10 (7) of the Act. Section 10 (7) reads as follows:
A Food Inspector shall have power - (a) to take samples of any article of food from-
(i) any person selling such article;
(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 x x (call one or more persona to be present at the time when such action is taken and take his or their signatures).
This sub-section requires that the Food Inspector shall call one or more persons to be present at the time when action is taken and take his or their signatures. This sub-section came up for consideration in many decisions of this Court, the last of which was in Food Inspector, Calicut Corporation v. Padmanabhan Nair 1967 Ker LT 825 : 1868 Cri LJ 688. (DB). The observation in that case is as follows:
The object of calling perspna to be present at the time when action is taken by Food Inspector under the section is to ensure the regularity and to secure evidence of the action of the Food Inspector. The requirement of calling persons to witness the action of the Food Inspector is to assure fairness in the action and therefore, the persons called must be independent, It is not possible to lay down any hard and fast rule as to what class of persons will be independent. It difficult to characterise all persons belonging to or connected with trade in articles of food as dependants or tinder the influence of the Food Inspector. Because an independent person of the nature envisaged has not been present at the time of the action of the Food Inspector the proceedings of the Food Inspector relating to the purchase and sampling would not be invalid. If in a case it is possible to come to the conclusion on the evidence adduced that the action of the Food Inspector has been regular, the fact that the person or persons present to witness the action of the Food Inspector is or are not independent will not be fatal to the prosecution. If no independent witness has been called to be present on the occasion of the action of the Food Inspector, the only consequence will be that the Court will have to look into the evidence in the case with greater care.
6. It is clear, in the circumstances of this case that independent witnesses had been called to witness the action by the Food Inspector. P. Ws. 8 and 4 are independent witnesses. In that way, the requirements of the section have been complied with. But, the only consequence will be to see whether the evidence in a particular case will be sufficient to bring home the guilt of the accused beyond a reasonable doubt which depends upon the evidence and other circumstances of each case. That appears to be the view expressed by Isaac, J. in T. A. Ouseph v. State of Kerala 1967 Ker LT 290 : 1967 Cri LJ 1480. The opinion has been expressed in the following words:
The question whether non-compliance of the statutory procedure would cause prejudice or occasion failure of justice within the meaning of Section 537 of Criminal P. C., depends on the facts and circumstances of each case. The non-compliance of Section 10 (7) does not vitiate the action taken by the Food Inspector, but it only makes the evidence relating to the action taken by him liable to a more careful scrutiny by the Court. To construe 'persons' as 'independent witnesses' is not to import something entirely alien to the spirit of the section. The very idea behind requiring other persons to witness the action of the investigating officer, is the need for corroborating his evidence and his official subordinates are certainly not the best persons' to serve that purpose. But there is no presumption that every person of that category is susceptible to the influence of the prosecutor. The question in final analysis is one of reliability of the evidence and not its admissibility. The view that persons connected with trade in articles of food would not be independent witnesses is not a general proposition of law.
7. It is clear from the above two decisions that even the question whether non-compliance or occasion failure of justice depends on the facts and circumstances of each case. Bead in that light, the facts in the instant case would reveal that the purchase of candy by the Food Inspector from the respondent is sufficiently proved by the evidence of P. W. 2 read in the light of the documentary evidence, Exts. P-1 to P-8, the genuineness of which cannot be disputed in the circumstances of the case. The learned District Magistrate's finding that the requirement of Section 10 (7) is not complied with is not correct. The acquittal order has, therefore to be set aside. The District Magistrate will proceed, with the trial in the light of the evidence already on record.
8. In the result, the acquittal order passed by the District Magistrate (Judicial), Kottayam, is set aside and the case is remanded to the District Magistrate for disposal in accordance with law on the basis of the evidence on hand, subject to the finding in this appeal.