P. Subramonian Poti, Ag. C.J.
1. The accused in a case taken to file On the complaint of the Food Inspector, Palghat Municipality charging the accused with an offence punishable Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 is the revision petitioner and he challenges the order of the Chief Judicial Magistrate, Palghat convicting him and sentencing him to Rigorous Imprisonment for 3 months and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for 3 months, as confirmed in appeal by the Court of Sessions, Palghat. The case against the petitioner is that on 25-2-1978 at about 9.15 A.M. the petitioner sold 750 ML of cow's milk which on analysis was found to be adulterated. Ext. P6 is the report of the Public Analyst. At the instance of the petitioner the sample was sent to the Central Food Laboratory for analysis and Ext. P13 is the report of the Director of Central Food Laboratory. This report shows that the sample does not conform to the standard prescribed for cow's milk under the statute. The sample was found to contain milk fat content above the minimum prescribed for cow's milk and milk solids non-fat was found deficient. The case was tried summarily. The Chief Judicial Magistrate found that the sampling was properly done, that Rule 16 (c) concerning the manner of packing and sealing had been duly complied with, that the milk was found to be sub-standard which in turn showed that it was adulterated and that therefore an offence punishable Under Section 16(1)(a)(i) of the Act had been committed. It was found that in the circumstances the minimum sentence provided under the proviso would meet the ends of justice and that was accordingly imposed. That was confirmed in appeal.
2. Before me three points are raised by counsel for the revision petitioner. These are : (1) There is non-compliance with S, 10 (7) of the Act inasmuch as there is no independent evidence to corroborate the testimony of the Food Inspector. (2) Though the manner of packing and sealing the samples may not be open to attack Rule 17 which prescribes the manner of despatching the containers of samples is not shown to have been complied with so much so that it must be taken to work prejudice to the accused and (3) Milk sold being an item of primary food the accused must get an opportunity to show that the fall in standard was solely due to natural causes and beyond the control of human agency. I will now deal with these contentions.
3. Section 10(7) does not deal corporation of the evidence of Inspector, but with the obligation of the Food Inspector to call one or more persons be present at the time action is taken under Clause (a) of Sub-section (1), subsection (2), Sub-section (4) or Sub-section (6) of Section 10 of the Act and the obligation to take the signatures of such persons. This has no bearing on the evidenciary value of the testimony of a Food Inspector when it is uncorroborated. That may have to be adjudged independently and not with reference to Section 10(7). Even in a case where a Food Inspector has called independent witnesses to attest to his acts and has taken their signatures. It may be that the benefit of their evidence is not available and the court is left with only the evidence of the Food Inspector. It will be a question of fact in each case whether, in the circumstances of that case, the court should act upon the sole testimony of the Food Inspector. This is what this Court said in the decision in Raveendran v. Food Inspector 1977 Ker IJT 155. We are not concerned here with such a situation. What is urged is that Section 10(7) is violated. That would be the case only if the Food Inspector had failed to call witnesses to attest his act Under Section 10(7) of the Act. That is not the case here. The mahzar relating to sampling is seen duly attested by witnesses and they are examined in the case as P.W. 2 and P.W. 3. P.W. 2 is an independent witness not shown to have any interest in the prosecution and P.W. 3 is the Health Officer of the Municipality. In the circumstances there can be no complaint of non-compliance with Section 10(7) of the Act.
4. Even in a case where there are no witnesses to attest to the acts of the Food Inspector Under Section 10, the court need not, merely for that reason, consider that there is any violation of Section 10(7). What the Section contemplates Ls that the Food Inspector must call one or more persons to be present at the time he takes samples and also take their signatures. It may be that persons present may be unwilling to attest. May be they are unwilling to affix their signatures to the mahazar. It may even be that in peculiar circumstances no independent witnesses are available at the time of sampling. If that be the case such sampling would not be rendered invalid. Reference may be made in this context to Food Inspector v. Narayanan Nair 1980 Ker LT 454 followed in Alotins Wilson v. Food Inspector 1980 Ker LT 834.
5. Now I will pass on to the plea that there is non-compliance in this case with Rule 17 of the Prevention of Food Adulteration Rules. As I indicated earlier there is no case now that Rule 16 relating to the manner of packing and sealing of the sample has not been complied with. What is contended is that Rule 17 (b) providing that the containers of the samples shall be despatched in the manner mentioned therein has not been complied with in this case. Under these rules one part of the sample for analysis and a memorandum in Form VII has to be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means. The sealed containers of the remaining two parts of the sample have to be sent along with two copies of the memoranda in Form VII in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means. In this case the sample sent to the Public Analyst had been analysed and a certificate had been issued in Form III which certificate mentions that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of. the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. Therefore there is evidently compliance with Rule 17 (a). The dispute does not concern this. Naturally so, because it is the sample sent to the Central Food Laboratory that was analysed yielding result indicated in Ext. P13. It is on the basis of that report that the prosecution is sought to be sustained. It was on a motion made to the court Under Section 13(2) 'of the Act that this sample was sent to the Central Food Laboratory. The objection raised here is that there is no positive proof in this case that as required by Clause (b) of Rule 17 the second and third samples sent to the Local .Health authority were sent in another (sealed cover along with the memoranda .in Form VII as required by that clause. Of course the Food Inspector does not speak to it. But that is no reason for finding non-compliance, for, such cover has to be opened by the court and the court has to be satisfied at that time that the seal is intact. Section 13(28) deals with the function of the court when On a motion by the party the sample of the article .of food kept by the Local Health Authority is called for so as to enable analysis by the Central Food Laboratory. When the local authority forwards it to the court under Sub-section (2A) of Section 13 the court is obliged to ascertain whether the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are in tact and the signature or thumb-impression, as the case may be, is not tampered with. It is then that one of the parts of the sample is sent to the Director of Central Food Laboratory and that is done under the court's own seal. In this case the court, on 21-6-78, has noted in its order that the sample produced pursuant to the request by the accused was found to be intact. There was no challenge to that at any time and for the first time the challenge is seen made in this revision. There was a statutory duty on the court to ascertain whether the seal was in tact and this is seen to have been done. If so this is not a matter on which the prosecution is expected to adduce evidence. At any rate this question does (not arise now in this revision.
6. The last of the points argued concerns the burden of proof. I am in agreement with the view expressed by my learned brother Bhat, J. in the decision in Janardhanan Nair v. Mohammed Kunju 1981 Ker LT 327 : 1981 Cri LJ 528 (Ker) that the prosecution cannot be expected to prove that the fall in standard was solely due to natural causes and beyond the control of human agency. In the very nature of the circumstances this is a matter which it would be for the accused to prove. The request for an opportunity to prove it does not sound genuine, for, this contention itself is raised for the first time in this revision and that at the hearing. Hence I do not think there is any justification in revision to set aside the conviction so as to give an opportunity to the accused to prove this. In the circumstances the revision is dismissed.