A.S. Qureshi, J.
1. This is the appeal filed by the original complainant who was at the material time the Food Inspector of the Baroda Municipal Corporation. The accused were charged for an offence punishable under Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The learned Judicial Magistrate, First Class, Baroda by his judgment and order dated 29th September, 1978 acquitted the accused. Aggrieved by the order of the Learned Magistrate, the original complainant has come in appeal before this Court.
2. The prosecution had alleged that the accused who carried on the business of selling edible ground-nut oil had adulterated the oil and thus committed an offence punishable under the Act. According to the prosecution Chintamani P.W. 1 (Exh. 2) who was the Food Inspector employed by the Municipal Corporation of Baroda who is the complainant in this case, went to the shop of the accused on 7th February, 1978 in the morning accompanied by a clerk one Mr. Patel and a Sepoy named Adulkadar Sheikh. According to the complainant, he took the samples from the oil tin by taking out the oil with a Palia (measure) into a clean utensil which he had carried with him. The samples, according to him, were scaled by the Sepoy. The slip duly signed by the local health authority was pasted on the sample bottles before they were despatched. The Public Analyst had examined the samples and found that the oil was adulterated. In this case the prosecution had examined the Public Analyst Sureshchandra Section Bhatt P.W. 2 (Exh. 29) who has been cross-examined at considerable length but nothing material has come out of his cross-examination which could help the accused. Therefore, it is proved that the oil contained in the sample bottles was adulterated.
3. As regards the compliance of the requirements of Rule 16(c) of the Prevention of Food Adulteration Rules, 1955, it is urged on behalf of the respondents that those requirements are not fully complied with in view of the evidence of the complainant. It is urged that the complainant has admitted in his cross-examination that the serial No. 192 written on the slips was the number given by the complainant according to his own serial number in the ascending order. The complainant has in his examination-in-chief categorically stated that he was given the Code Number by the Health authority and that the slips were duly signed by the authority. As regards the serial number the complainant says that it was given to him by the Health authority orally and explains in his cross-examination that the authority had asked him to write down his serial numbers in the ascending order. Miss K.N. Valikarimwala, the learned Counsel appearing for Mr. N.R. Oza, has argued on behalf of the Municipal Corporation of Baroda that this apparent contradiction is, in reality, no contradiction. In fact, it is an explanation or elaboration of what the complainant has said in his examination-in-chief. Miss Valikarimwala has submitted that the local Health authority had given the Serial No. 192 orally to the complainant and asked him to put that number on the slip and thereafter go on giving serial numbers in the ascending order in the case of subsequent samples which may be taken from different shops. According to her, once the local authority gives a serial number, even orally, the requirement of Clause (c) of Rule 16 is complied with. According to her, it is not necessary for the local authority to write down the serial number on the slips there and then in his own hand-writing. The authority has simply to give the serial number and thereafter that serial number can be inscribed on the slip by any authorised person. In this case, the complainant is the authorised person. For this proposition Miss Valikarimwala has relied on the Division Bench decision of this High Court in the case of Kamleshkumar Babulal Patel v. State of Gujarat and Anr. 22 G.L.R. 404 wherein it is held that the serial number and code number must be given by the local Health authority, but may be written down by any other person. This proposition is quite self-evident on a mere reading of Clause (c) of Rule 16 of the said Rules. The said Clause (c) has been added by the amendment of 1977 with a view to ensure that the sample bottles are not tampered with in the course of transmission from the Food Inspector to the Public Analyst. It simply requires that the paper slip to be pasted on the wrapper to the container should bear the code, serial number and the signature of the local Health authority. It does not require the code or serial number to be in the hand-writing of the authority, himself. Therefore, the objection raised in this matter that the serial number was written in the hand-writing of the complainant would not survive. However, the question whether the Serial No. 192 was given by the local authority orally or otherwise, is not fully proved. No doubt the complainant does state in his examination-in-chief that the said serial number was orally given by the authority. There is a shadow of doubt in this view of the fact that he has given a contrary reply in his cross-examination where he says that the Serial No. 192 was 'my number'. It is not very clear what the complainant meant by saying 'my Serial Number'. Does it mean that the serial number which was given to him was given by the authority or does it mean fiat the serial number given by him was under the instructions of the authority? This doubt could have been very easily resolved if the prosecution had taken care to examine the local authority himself. In the absence of the local authority not having been examined on this point, the doubt would remain unresolved. Miss Valikarimwala has urged that this is a minor omission on the part of the prosecution and an opportunity may be granted by remanding the matter back to the trial court for recording the evidence of the local Health authority. According to her this is a technical defect and the accused who are charged with a serious offence of playing with the health of the pepole should not be allowed to get away scot-free because of the technicality. She has strongly urged that interest of justice would demand that the matter should be remanded back to the trial court for recording evidence of the local authority.
4. Mr. M.B. Farooqui, the learned Counsel for respondent No. 2 has submitted that there was absolutely no reason for the prosecution not to examine the local Health authority on this point in view of the fact that the complainant had contradicted himself on material particulars. If the prosecution chose to take the risk of not examining the authority it would not be fair to give them another chance of leading further evidence after a lapse of nearly five years. Mr. Farooqui has further urged that this is an acquittal appeal and it cannot be said that the discretion exercised by the learned Magistrate is erroneous or untenable in the facts and circumstances of this case. He has also urged that it would be highly unfair to the accused to remand the matter for the purpose of allowing the prosecution to fill the lacuna which they have left perhaps deliberately. Mr. P.B. Majmudar, the learned Counsel for the respondent Nos. 3 & 4, his also urged that after a lapse of long time it would not be fair or just to the respondents (original accused) to remand the matter for recording further evidence. According to him, the prosecution has taken a calculated risk and they must face the consequences thereof. Mr. M.A. Trivedi, the learned Additional Public Prosecutor for the respondent No. 1-State has urged that in view of the fact that there is practically no corroboration on the material particulars regarding the serial number having been given by the authority, the remanding of the matter may possibly amount to unfair deal to the original accused.
4.1. The prosecution should have realised that in view of the contradictions in the evidence of the complainant on the question of serial number whether it was given by the local Health authority or not it was its duty to clarify the position by examining the authority himself which they have not done. Apparently they had taken a calculated risk in not examining the health authority. In this situation, it would be unfair to the accused to remand the matter to allow the prosecution to examine the local authority which they could have done at the trial if they so desired. A long time of nearly six years has elapsed since the decision of the trial court and now remanding the matter would result in unfair prolonging of the agony of the accused. Hence, the request of Miss Valikarimwala for remanding the matter is rejected.
5. Another important point taken up in this appeal on behalf of the original accused is that the prosecution evidence is conflicting on the question of the use of Palia (Measure) by which the oil for the sample was taken out from the tin. The complainant has stated that he had carried a clean Palia with him and that he took out the oil from the tin by means of the Palia which he had taken. On this point the complainant is contradicted by the Panch witness Ramanlal Mohanlal P.W. 3 (Exh. 35) who says that the oil was taken out from the tin by means of a Palia which was lying near the tin. According to him, the Palia had sticky substance on it and there were layers of fat on it. Although the evidence of the Panch witness Ramanlal does no inspire confidence, he seems to be trying to help the accused persons and hence his evidence is not very reliable. Yet, a doubt would remain with regard to which Palia was used for taking out the oil for the samples. This doubt could have been resolved if the prosecution had examined the Peon who had accompanied the complainant. It is difficult to understand the reason why the prosecution chose not to examine the Peon. The evidence of the Peon would have helped also on the question of the cleanliness of the bottles used for samples as he is said to have cleaned the bottles. In the absence of such a corroborative evidence it would be unsafe to rely on the sole testimony of the complainant. The question whether the sample oil sent for analysis was adulterated on account of the nefarious activities of the accused as alleged or whether it was on account of the use of a dirty Palia would remain unresolved in the absence of any reliable evidence. Hence also, the accused will have to be given the benefit of doubt. In the result, the judgment and order of acquittal passed by the learned Magistrate is upheld and the acquittal appeal of the State is dismissed.