P.D. Kudal, J.
1. This appeal has been filed on behalf of the State against the order of the learned Sub-Divisional Magistrate, Sirohi dated 8-7-1971, whereby the accused respondent was acquitted of the charges under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act).
2. The facts of the case, in brief, are that on 27-10-1966, at about 1 p.m., the Food Inspector, Sirohi Shri Himmat Chand purchased a sample of grinded 'haldi' from the shop of the accused which was kept by him in the shop for open sale. The 'haldi' so purchased was sealed in three bottles in the presence of motbir Prabhu Lai P.W. 2. Before purchasing the 'haldi', the Food Inspector gave notice Ex. P-l in Form No. VI, and purchased the same vide receipt Ex. P-2 for .84 P, A seizure memo Ex. P-3 was prepared and signed by the motbir Prabhu Lai P.W. 2. One sealed bottle was handed over to the accused-respondent. Another sealed bottle was sent by the Food Inspector to the Public Analyst vide Ex. P-4. The report of the Public Analyst Ex. P-5 was received, wherein it was stated that the 'haldi' was adulterated by adding foreign material. The learned Magistrate acquitted the accused as he was of the opinion that the prosecution has failed to produce the sample of the 'haldi' which was taken in possession by the Food Inspector. He was also of the opinion that two motbirs could be easily procured from the market of Sheoganj where the shop of the accused was situated. The sample was sent with a great delay resulting in prejudice to the accused, was the other ground which appealed the learned Magistrate.
3. The prosecution examined P.W. 1 Himmat Chand, the Food Inspector and P.W. 2 Prabhu Lai, the motbir. In support of the prosecution Exhibits P-l to P-6 were also produced.
4. In his statement under Section 342, Criminal P.C. the accused-respondent stated that he has not in any way adulterated the 'haldi' which the Food Inspector purchased from him. He had purchased the said 'haldi' about 10 minutes prior to the arrival of the Food Inspector vide Ex. D-l; and that he sold the 'haldi' in the same condition in which it was purchased by him. The accused-appellant also admitted the purchase of 'haldi' from his shop by the Food Inspector.
5. On behalf of the State, it was contended that the provisions of Section 10(7) of the Act have been substantially complied with inasmuch as that the motbir P.W. 2 Prabhu Lai was present when the 'Haldi' was purchased and sealed in three bottles. Reliance was placed on Ram Labhava v. Delhi Municipality : 1974CriLJ672 and Babu Lai v. State of Gujarat : 1971CriLJ1075 . It was also contended on behalf of the State that the bottle containing the sample was produced before the learned S. D. M. as is evident from the statement of the Food Inspector, P.W. 1 Himmat Chand. In the alternative, it was contended that the production of the sample was not at all necessary, as whether the 'haldi' was adulterated or not, was de-terminable by the report of the Public Analyst on the examination of the bottle sent to him. This argument could be of any use only when requisition or an application under Section 13(2) of the Act was made for sending the sample for further examination before the Director, Central Food Laboratory. Reliance was placed on Devi Saran v. State, 1974 Cri LJ 865 (All) and N. S. Adhikari v. Ram Phal, 1969 All LJ 957. It was further contended that in the absence of any application under Section 13(2) of the Act, it cannot be said that the delay in sending the sample, or in submitting the challan has in any way prejudiced the accused. Reliance was placed on Ajitprasad v. State of Maharashtra : 1972CriLJ1026 .
6. On behalf of the accused-respondent, it was contended that in an appeal against an order of acquittal the Courts are very slow to interfere in such an order unless there are compelling reasons, or that the order of acquittal is unreasonable, or is based on manifest erroneous appreciation of evidence. It was also contended that though the bottle containing the sample of 'haldi' was produced by the Food Inspector Himmat Chand P.W. 1, but the said bottle was not taken on record as material exhibit. No evidence was led on behalf of the prosecution to establish that the seals were intact, and that the motbir had signed. It was also contended that in the absence of the bottle having been taken as a material exhibit it would have been a futile exercise to have applied under Section 13(2) of the Act. Under such circumstances, it was contended that the order of acquittal passed by the learned Magistrate does not call for any interference on the appellate side.
7. The respective contentions of the learned Counsel for the parties have been considered, and the record of the case carefully perused. The Food Inspector Himmat Chand P.W. 1 has stated that he purchased grinded 'haldi' from the accused-respondent after due formalities, and sealed the same in three separate bottles, and gave one bottle to the accused-respondent. The accused has also admitted in his statement under Section 342, Criminal P.C. that the Food Inspector had purchased 'haldi' from him. The contention of the accused-respondent is that he had purchased the said 'haldi' vide Ex. D-l only ten minutes prior to the arrival of the Food Inspector, and had sold the said 'haldi' in the same condition in which he had purchased, and, therefore, he cannot be held responsible for any adulteration, if any. Motbir Prabhu Lai P, W. 2 has given a very vacillating statement. He has admitted his signatures; but he has stated that he does not remember whether the bottle contained 'haldi' or not at the time when he signed. He also does not remember whether the1 signatures of Chiranjilal had been taken on Ex. P-6, or not; and he also does not remember as to who were present at the site when he reached there. Taking into consideration the oral and the documentary evidence on record, I have no hesitation in holding that the Food Inspector Himmat Chand P.W. 1 purchased the grinded 'haldi' from the accused, and sealed the same in three separate bottles.
8. The next important question to be considered is. whether the delay in the instant case has, in any way, prejudiced the accused. In Ajitprasad v. State of Maharashtra 1972 Cri LJ 1026 (SC), it has been held that where the accused was prosecuted under Section 16(1)(a)(i) read with Section 7(1) on the basis of a sample of buffalo milk taken from his shop in accordance with the rules, which on analysis was found to contain only 2.7% of milk fat instead of 6% as required by rules. The trial Court acquitted the accused solely on the ground that as the summons in the case was served on the accused after 3 months, the accused was deprived of his valuable right under Section 13(2) to get his sample analysed by the Director, Central Food Laboratory but the High Court convicted him and sentenced him to 6 months R. I. with a fine of Rs. 1,000/-. In such circumstances, it was held that in the absence of any application by the accused under Section 13(2) for getting the sample analysed by the Director, Central Food Laboratory the accused could not complain that he was deprived of his right to have the sample analysed by the Director, Central Food Laboratory. It was further held that mere delay and laches on the part of the complainant in getting the summons served was not, in the absence of evidence to show that the sample had deteriorated when the summons was served, sufficient to hold that the accused was prejudiced by reason of deprivation of the right under Section 13(2).
9. In Devi Saran v. State, 1974 Cri LJ 865 (All), it was held that the trial shall not stand vitiated by non-production of the third part of the, sample during the trial. In that case, the learned Magistrate in his impugned order had observed that there was nothing on record to show that the Food Inspector was ordered to produce the sealed bottle in the Court. The learned Counsel for the applicant could not show from the record that any application was moved on behalf of the accused for a direction to the Food Inspector to produce before the Court the third part of the sample, nor could he point out that any order was passed directing the Food Inspector to produce the third part of the sample. It is true that the Food Inspector must produce the third part of the sample when so ordered by the Magistrate or on the request of the accused. But in the absence of such order by the Magistrate or request by the accused, it was not necessary for the Food Inspector to produce the third part of the sample at the time of making a complaint, or during the trial. Their Lordships relied on 1969 All LJ 957, Nagar Swasthya Adhikari v. Ram Phal, in arriving at this conclusion.
10. In the present case, the third sealed bottle was produced In the Court, but it was not marked as a material exhibit. The learned Counsel for the respondent could not show from the record that any request was made on behalf of the accused to produce the sample, or that there was any direction from the learned Magistrate. In the absence of these conditions being fulfilled, it is exceedingly difficult to hold that by a mere non-production of the sealed bottle as a material exhibit in the Court, the trial stands vitiated, though, the sealed bottle was actually produced before the Court.
11. In Ram Labhaya v. Delhi Municipality, 1974 Cri LJ 672 (SC) it was held that the words 'one or more persons' in Section 10(7) must mean one or more independent persons. The Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the said sub-section, as provisions of Section 10(7) are mandatory. The obligation which Section 10(7) casts on the Food Inspector however, 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 co-operate. As he could not certainly compel their presence, the prosecution was relieved of its obligation under the provision and therefore non-compliance with it did not vitiate the trial.
12. In Babu Lai v. State of Gujarat, 1971 Cri LJ 1075 (SC), it was observed as under:
It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under Section 68 of the Evidence Act to prove the execution of the Will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. 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 against 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.
13. In the present case, it has been contested that the sample of grinded 'haldi' was secured by the Food Inspector Himmat Chand P.W. 1. The accused has admitted in his statement under Section 342, Criminal P.C. that the sample was obtained from him. In such circumstances, it cannot be said that there has been any non-compliance of Section 10(7) of the Act in this case. The learned Magistrate was in error in holding that the delay in filing the challan, and non-production of the sealed sample in the Court should entail the acquittal of the accused.
14. The learned Counsel for the accused has placed reliance on Municipal Corporation of Delhi v. Birinder Nath Chatterjee, 1975 FAJ 282 (Delhi) and Municipal Committee, Amritsar v. Trilok Chand, 1975 FAJ 307 (Punj). On the basis of these authorities, it was contended that there is a marginal difference only, and as such, there should be no interference in the order of acquittal. According to Ex, P-5, the total ash was found to be 9.13%. According to Rule A 05.20, the total ash should not exceed 9 % by weight. Thus, the total ash exceeded in the present case by .13%. This is true that the adulteration is of a marginal character only. In Jagdish Prasad v. State of W. B. : 1972CriLJ1309 , it was held that the offences for adulteration of food must be severely dealt with, no doubt depending on the facts of each case which cannot be considered as precedents in other cases; in this case having regard to the fact that the appellant has been on bail since 1964 for a period of nearly seven years, and also because not only the mustard oil sample satisfied all the tests except one but the main person concerned in the manufacture of the said oil has been acquitted, interests of justice would be served if the sentence of one year is reduced to two months rigorous imprisonment and the appellant is further directed to pay Rs. 1,000/- failing which to be directed to undergo a further term of rigorous imprisonment for one month.
15. In Ram Labhaya v. Delhi Municipality, 1974 Cri LJ 672 (SC), it was found by the Public Analyst that the sample contained foreign starches to the extent of 25%, and the appellant was put up for trial before the Magistrate, First Class, Delhi under Section 7/16 of the Act. The learned Magistrate acquitted the appellant on the sole ground that the sample of 'haldi' was not taken by the Food Inspector in the presence of independent witnesses leading to non-compliance with the mandatory provisions of Section 10(7) of the Act. The order of acquittal was set aside in appeal by the High Court of Delhi, which followed its own judgment, and took the view that the provisions of Section 10(7) of the Act are directory and not mandatory. This appeal by special leave is directed against the judgment of the Delhi High Court convicting the appellant of the offence of selling an adulterated article of food and sentencing him to suffer imprisonment for six months and to pay a fine of Rs. 1,000/-. In that case the Supreme Court maintained the fine of Rs. 1,000/-, but in the circumstances of the case, did not impose a substantive sentence of imprisonment. In Malwa Co-operative Milk Union Ltd. v. Bihari Lal, (Cr. A. Nos. 235 and 236 of 1964 decided on 14-8-1967) (SC) the Supreme Court after noticing that the difference from the prescribed standard being a marginal one, observed, 'that an error in calculation may have been made by the Public Analyst'. In that case it was also observed that it was not clear 'whether the Analyst was able to isolate the fat contents so successfully as not to have allowed room for the slight variation.' It was accordingly held in that case that the 'variation was thus border line.' The Supreme Court, therefore, did not interfere in the order of acquittal.
16. Ram Labhaya v. Delhi Municipality is direct authority on the adulteration of 'haldi'. The starch contents were upto the extent of 25%, and a fine of Rs. 1,000/- was found sufficient to meet the ends of justice, and substantive sentence was not imposed.
17. In view of the fact that the incident relates to 27-10-1966, and that the difference in the total ash is .13% only. The ends of justice would be met by following the view taken by the Supreme Court in Ram Labhaya v. Delhi Municipality, which was also a case of adulteration of 'haldi' to the extent of 25% of starch. The adulteration in the instant case is much less than 25%.
18. In the result, the appeal filed by the State is allowed. The order of acquittal passed by the learned Magistrate is set aside. The accused-respondent is hereby convicted under Section 7/16 of the Act, but looking to the circumstances of the case, as narrated above, and following the authority cited in Ram Labhaya v. Delhi Municipality, a fine of Rs. 1,000/- (Rupees one thousand only) would meet the ends of justice. In default of payment of fine, the accused shall undergo rigorous imprisonment for three months. The accused-respondent is directed to deposit the amount of fine within a month failing which the Chief Judicial Magistrate Sirohi will cause the accused to be arrested to undergo the sentence awarded to him in default of payment of fine.