Ku. P. Janaki Amma, J.
1. The Food Inspector, Changanacherry Municipality is the appellant. Tho appeal is against the acquittal of the accused in respect of offences punishable Under Sections 7(1) and (4) and 16 of the Prevention of Food Adulteration Act, 1954, for short the Act, read with Rule 44-A (b) of the Prevention of Food Adulteration Rules, 1955.
2. On 29-9-1977, PW 1, Food Inspector, visited the shop of the first accused and purchased 750 grams of peasdhall for the purpose of analysis, on paying the price thereof. The public analyst reported that the sample was adulterated and that it consisted of a mixture of lac-dhall, otherwise known as kesari dhall, to the extent of about 5 per cent and peasdhal to the extent of about 95 per cent,
3. The complainant examined himself as PW-1 and the salesman of the shop, who is stated to have been present a the time of sampling, as PW-2. PW-2 turned hostile. The trial Court found from the mahazar evidencing the taking of the sample that of the two witnesses who witnessed the transaction, one was PW-2 the salesman of the shop of the accused and that the other was the peon of the Food Inspector. There was thus failure on the part of the Food Inspector to call one or more independent witnesses to be present at the time of the action taken by him, and as such there was non-compliance of Section 10(7) of the Act. The accused were acquitted on that basis. The order of acquittal is challenged in this appeal.
4. The main question that arises for consideration is thus whether there has been non-compliance of Section 10(7) of the Act in view of the fact that the witnesses Under Section 10(7) were either employees of the concern from where the sample was taken or subordinates of the Food Inspector. Shri Rama Shenoi, the learned Counsel for the respondent, contended at the time of hearing that there is no uniformity in the decisions of this Court on the scope and application of Section 10(7) of the Act, and therefore, it is desirable that the case is referred to a Division Bench. I felt that in the light of the representation I should review in detail the case law on the point to find out if there is any necessity to refer the question of a Division Bench. Section 10(7) of the Act was amended in 1964. It may not be necessary to deal with the case law prior to the amendment. Suffice to say that the general trend of these decision was that non-compliance of the provision was a serious irregularity.
5. Section 10(7) as it stands now reads:
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, call one or more persons to be present at the time when such action is taken and take his or their signatures.
The earliest reported decision of this Court on Section 10(7) after the amendment Act 1964 is Food Inspector v. Vincent, ILR (1966) 2 Ker 551, decided by Madhavan Nair J., on appeal against an order of acquittal. In that case the two witnesses to the sampling were maistries subordinate to the Food Inspector. Following the decision, State v. Sadhu Singh it was held that the evidence relating to taking of sample must be above board and the witnesses in whose presence the sampling is taken should be independent and disinterested so as to inspire confidence. The salient safeguard provided in Section 10(7) not having been observed, the sampling was held to have been done irregularly. The order of acquittal was not set aside,
6. Subramonian Chettiar v. Food Inspector, 1966 Ker LT 788:1967 Cri LJ 1328(2)) is another case decided by the same learned Judge. In that case the appellant, second accused, was carrying milk for sale to a coffee club. The Food Inspector followed him inside the coffee club and took sample. PWs. 2 and 3, attestors to the mahazar, were two of the employees of the coffee club. PW 4 was the peon of the Food Inspector. The learned Judge held that the requirement of calling persons to witness the action of the Food Inspector is to assura fairness in the action and that it is essential that the witnesses concerned are persons unconnected with trade in articles of food.
7. The question whether non-compliance of Section 10(7) would vitiate the action taken by the Food Inspector or trial came up for consideration before Isaac J., Ouseph v. State of Kerala, 1967 Ker LT 290 : 1967 Cri LJ 1430 (2. The learned Judge, on a review of th9 authorities held that '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.' In the course of discussion of the question whether the persons to be called to witness the action Under Section 10 of the Act should be independent witness, the learned Judge referred to the observations of Valu Pillai, J., in the Division Bench Cri. Appeals Nos. 92, 112 and 114 of I960, where he said that the term 'independent witness' does not necessarily relate to persons pertaining to the same department as the prosecutor, while there is no presumption, that every person of that category is susceptible to the influence of the prosecutor, other ties of dependence than the official tie are also conceivable. There is no rule, as seems to have been assumed, that the evidence of officers in charge of investigation is always to be looked upon with suspicion and 'the question in final analysis is one of reliability or trustworthiness of the evidence, and not of admissibility'. The learned Judge also referred to the following observation of Anna Chandy, J., in the same case at p. 1434):
It (Section 10(7)) of the Act does not say that these persons must be 'independent. However to construe ' persons' as independent witnesses is not to import something entirely alien to the spirit of the section. The very idea 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 the purpose.
8. In the case before Isaac, J., the documents showed that the sampling was done in the presence of witnesses and those documents also were signed by the accused. The learned Judge held that no valid objection could therefore be taken on the ground that the Food Inspector did not comply with 10 (7).
9. Section 10(7) came up for interpretation again before, the Division Bench consisting of K. K. Mathew and Sadasivan, JJ., in Food Inspector, Calicut Corporation v. Padmanabhan Nair, 1967 Ker LJ 825 ; 1968 Cri LJ 683). The learned Judge approved the decision in Ouseph v. State of Kerala, 1967 Ker LT 290 : 1967 Cri LJ 1430 (2). The Division Bench observed (at p. 685):
We think that if the idea behind the necessity of calling independent persons is to secure corroboration of the evidence of the Food Inspector, the object of enacting Section 10(7) is evidentiary in character. The purpose is to secure the evidence of independent persons to the action of the Food Inspector. We are not sure whether such a provision should be construed as mandatory in character. If the Court is satisfied on the evidence adduced that the action of the Food Inspector was regular would it consist with the aim of the Legislature to say that because no independent person was called to be present, the proceedings of the Food Inspector are bad? We think not. To attribute such a consequence to the violation of a provision having only an evidentiary purpose would be to ignore the very purpose of the legislature.
The Division Bench proceeded to say that 'there is nothing inconsistent in saying that the legislative aim was that one or more independent persons must be present at the time of the action of Food Inspector and yet his proceeding relating to the purchase and sampling will be valid, even if no independent person or persons were present provided there is evidence worthy of acceptance by the Court that the action of the Food Inspector is in accordance with law.'
10. The following observations are also relevant for consideration:
If as was said that the object with which the provision has been enacted is to supply corroborative evidence of the action of the Food Inspector, we find it difficult to say that the provision is mandatory in the sense that if it is not complied with the whole proceedings will become invalid. That an independent person must witness the action in order to ensure the regularity of the action does not go to the substance of the action or the regularity of the action of the Food Inspector. It is merely collateral. It might, in this connection be remembered that it is not within the power of the Food Inspector always to to get the presence of an independent person to witness his action. He can administer no sanction if his call is disobeyed and therefore to make the presence of an independent person a condition precedent to the validity of his proceedings would very often result in his not taking any proceedings at all. We cannot visualise therefore that the Legislature would have intended the presence of an independent person as a mandatory requirement for the validity of the proceedings of the Food Inspector.
Finally the Division Bench said -
We think that if the evidence adduced at the trial is sufficient and reliable for the court to come to the conelusion that the action of the Food Inspector was regular, the fact that no independent person (sic was) called to be present at the time of the action of the Food Inspector should have no adverse consequence on the case of the complainant. To say this is not to say that the Food Inspector need not observe the provisions of Section 10(7) of the Act.
11. In the case before the Division Bench there were three witnesses to the mabazar, besides the first accused, two of them being employees of the hotel from where the sample was taken and the other a maistry of the Corporation. The maistry was examined in the case and he corroborated the evidence of the Food Inspector. The Division Bench held that under the circumstances the Magistrate was not justified in acquitting the accused. The Bench observed :
Although we agree that a Food Inspector must call independent persons to be present at the time of the action, we think, it is not possible to lay down any hard and fast rule as to what class of persons will be independent. We find it difficult to characterise all persons belonging to or connected with trade in articles of food as dependants or under the influence of Food Inspector, and unqualified to be witnesses to the action of a Food Inspector. It will be too much to assume that because Food Inspector can take action under the Act against persons dealing in articles of food all persons connected with the trade in articles of food would be dependents of the Food Inspector. We think that any such proposition would be too wide.
12. Section 10(7) came up for interpretation before the Supreme Court also, Babulal v. State of Gujarat : 1971CriLJ1075 . The Supreme Court held that it is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. The Supreme Court observed (at p. 1078):
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 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.
13. In Ram Labhaya v. Delhi Municipal Corporation, : 1974CriLJ672 , the Supreme Court held that the words 'one or more persons' must mean one or more independent witnesses. It was further held (para 4 :
We are of the opinion, particularly in view of the legislative history of Section 10(7) that while taking action under any of the provisions mentioned in the Sub-section (the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was willing to cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.
14. In Prem Ballab v. State (Delhi Admn.) : 1977CriLJ12 . the Supreme Court held (para 3) -
There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; If it were otherwise, it would be possible for any guilty, person to escape punishment by resorting to the device of bribing panch witnesses.
15. Section 10(7) has come up for decision before single Judges of this Court, even subsequent to the above referred decisions of the Division Bench of this Court and of the Supreme Court. In Food Inspector v. Karunakaran, 1973 Ker LT 595, the sample was taken by the Food Inspector in the presence of his two assistants who were examined as PWs 2 and 3. No independent person was examined. Relying on Food Inspector v. Calicut Corporation. Bhas-karan J., held that non-examination of other witnesses did not. cause prejudice tn the accused. It is not clear from the decision whether persons other than PWs. 2 and 3 were present at the time when sample was taken,
16. In 1976 Ker LT (SN) 83, Case No. 190, Khalid J., held that the mere fact that independent witnesses were not called will not by itself vitiate the purchase and render the prosecution invalid. The provision regarding witnesses is only a safeguard inbuilt in Section 10(7) for the protection of the accused, that the documents are not manipulated by the Food Inspector, after making the purchase,
17. In Chekkutty v. Food Inspector, J979 Ker LT 38 : 1979 Cri LJ NOC 188, the mahazar prepared at the time of sampling was signed by the Food Inspector (PW 1, a sanitary maistry subordinate to him (PW 2, the accused and one Kuttayee, the scribe. The accused contended that Kuttayi did not witness the purchase of sample and was only the scribe of the mahazar BhaskaranJ., held -
In as much as he had only written the mahazar without claiming to have witnessed the taking of the sample, it is doubtful whether even his examination in Court could have cured the de-feet of not calling one or more independent persons to witness the action taken by the Food Inspector in accordance with Section 10(7) of the Act in its true spirit as explained by the Supreme Court in Ram Labhaya v. Delhi Municipality : 1974CriLJ672 . I am, therefore, of the view that this prosecution is bad for non-compliance with the mandatory provision contained in Section 10(7) of the Act also.
18. Sankar v. Food Inspector, 1979 Ker LT 89 : 1979 Cri LJ NOC 130, is another case decided by Bhaskaran, J. Therein the sample was taken out of the milk the accused had taken to PW 3, a hotelier, for sale. PW 1, the Food Inspector, and PW 3, were the witnesses examined to prove the sampling. PW 3 turned hostile and was cross-examined. Objection was raised that PW 3 was really an interested person in as much as he being the purchaser must have felt annoyed and aggrieved at the conduct of the accused, when he knew that the milk that was being supplied was adulterated and being thus interested he was not a competent witness to the sampling. The argument found favour with the learned Judge. It appears that there was evidence in the case to the effect that there were other persons present in the shop who had come there to take tea. The learned Judge held that on the facts and circumstances of the case there was failure on the part of the Food Inspector to call one or more independent persons 'as required in the mandatory provision contained in Section 10(7) of the Act'.
19. A different note was struck by Kader J., in Food Inspector v. Narayanan Nair, 1980 Ker LT 454 and by Bhat J., in Alotius Wilson v. Food Inspector, 1980 Ker LT 834. In the former case the purchase of sample of milk was witnessed by PW 2 the Secretary of the Co-operative Society, to which the article was taken for sale. He turned hostile. It was contended that being the Secretary he was susceptible to the influence of the Food Inspector and as such he was not an independent witness. The contention was not accepted and it was held that PW 2 was a quite competent, natural and probable witness. The very circumstances that the witness turned hostile indicated that he was not susceptible to the influence at the Food Inspector,
20. In Alotius Wilson v. Food Inspector, 1980 Ker LT 834, sample icecream was purchased by the Food inspector from Hotel Sea Lord. Besides the peon of the Food Inspector, one of the employees of the hotel, examined as PW 3, was present at the time of purchase and attested the mahazar. As in Food Inspector v. Narayanan Nair, 1980 Ker LT 454, PW3 turned hostile and supported the defence. It was held that PW 3 could not be said to be a person interested in the prosecution, Bhat J-. who decided the case, referred to both Sankar v. Food Inspector, 1979 Ker LT 89 : 1979 Cri LJ NOC 130, and Food Inspector v. Narayanan Nair, 1980 Ker LT 454, and also to the Division Bench decision, Food Inspector v. Padmanabhan Nair, 1967 Ker LT 628 : 1968 Cri LJ 683 and held that he was bound by the view expressed by the Division Bench, In effect, the learned Judge did not follow Sankar v. Food Inspector, 1979 Ker LT 89.
21. The decisions in Food Inspector v. Narayanan Nair, 1980 Ker LT 454, and Alotius Wilson v. Food Inspector, 1980 Ker LT 834, have been referred to and relied upon by Subramonian Poti, Ag, C. J., in Raj an v. Food Inspector, 1981 Ker LT (SN) 97 : 1982 Cri LJ 170.
22. From the above re'sume', it is no doubt noted that there is some conflict between the decisions of the single Judges in relation to the scope of Section 10(7), when it can be stated that there is non-compliance thereof and what is the effect of such non-compliance. But I do not see that there is any necessity to refer the matter to a Division Bench as the law has already been laid down in the decisions of the Supreme Court and of the Division Benches of this Court already referred to.
23. In my view the law as laid down by the above decisions can be summarised as follows ;
(i) While taking action under Clause (a) of Sub-section (1, Sub-section (2, Sub-section (4) or Sub-section (6) of the Act the Food Inspector must call one or more persons to be present;
(ii) The obligation which Section 10(7) rasts on the Food Inspector is only to 'call' one or more persons to be present when he takes action. In a case where the Food Inspector did call persons to witness the takina of sample and none was willing to co-operate, the prosecution is relieved of its obligation to cite independent witnesses.
(iii) The provision contained in Section 10(7) is akin to the law relating to search laid down in Section 100(4) of Cr, P. C, 1973, corresponding to Section 103 of Cr.PC,' 1898. The provision is enacted as a safeguard against any possible allegations of excesses or resort to unfair means by the Food Inspector, This being the object it is in the interest of the prosecuting t authority to comply with the provisions of the Act, the non-compliance of which may in some cases result in the testimony of the Food Tn-spector being rejected;
(iv) Since the Food Inspector has no means of enforcing the presence of persons to witness the action taken by him and section does not provide any penalty for failure to respond to his call the Parliament could not have intended that the presence of such persons is a mandatory requirement for the validity of the action taken by the Food Inspector. Therefore the non-compliance of the provision will not affect the legality of the action taken by the Food Inspector, but only the weight of the evidence available in the case:
(v) The object of calling persons to witness action being to assure fairness in the action the nersons called must he independent and not susceptible to the influence of the Food Inspector;
(vi) It is difficult to lay down any hard and fast rule as to what classes of persons will be independent. It is at the same time too much to assume that because the Food Inspector can take action under the Act against persons dealing with articles of food all persons connected with the trade in articles of food would be dependent upon the Food Inspector;
(vii) A Food Inspector is not an ac-compliance. There is no rule of law that a conviction cannot be based on the sole testimony of the Food Inspector, It is due to a sense of caution based on prudence that Courts insist that the testimony of the Food Inspector should be corroborated by some independent witness. The weight to be attached to the evidence of the Food Inspector will depend upon the circumstances of each case;
(viii) If the evidence adduced at the trial is sufficient and reliable for the Court to' come to the conclusion that the action of the Food Inspector was regular the fact that no independent person was called to be present at the time of action should have no adverse consequences on the case of the complainant, To say this is not to say that the Food Inspector need not observe the provisions of Section 10(7) of the Act.
24. In the instant case, of the two witnesses who attested the mahazar, PW 2 is a salesman of the shop, and PW 3 is the peon of the Food Inspector. By no stretch of imagination can it be said that the salesman is subject to the influence of the Food Inspector, and therefore, it cannot be said that he is not an independent witness so far as the analysis is concerned.
25. PW 1, Food Inspector, in his evidence would say that he called persons from the neighbouring shops to figure as witnesses and that witness No. 1 in the mahazar (PW 2) was one of them. PW 2 would however say that he was an employee of the accused and was present in the shop when the Food Inspector went there for sampling. An argument is advanced that since Under Section 10(7) it is incumbent on the Food Inspector to 'call' one or more persona a person already present at the place where sale took place will not satisfy the requirement of Section 10(7). I do not see any weight in the contention. The word 'call' in the context only means 'demand' or 'request'. The section does not say that the Food Inspector should call any person outside the venue of his action to witness the transaction. If, at any time of taking the sample, there were persons present at the place, who are competent to figure as witnesses, nothing stands in the way of the food inspector in asking one of them to be a witness to the transaction. Since PW 2 admitted his presence at the time of sampling and he is not a person who is under the influence of the Food Inspector, the conditions required Under Section 10(7) are satisfied. In other words, the finding of the trial Court that there has been non-compliance of Section 10(7) is unsustainable,
26. The trial Court acquitted the accused on the preliminary ground that there has been non-compliance of Section 10(7) of the Act. The Court has sidered the other defences, to the appellant. It has not;,/ the case on the merits. Under cumstances, the order of acquittal is set aside and the case is sent back to the ot cony, open osed of the cirtrial court for fresh disposal according to law.
The appeal is accordingly allowed Appeal