M.L. Shrimal J.
1. This is an appeal by special leave directed against the judgment dated December 14, 1970 of the Municipal Magistrate, First Class (West), Jaipur acquitting the respondent Goga Ram under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act). On 7-9-1966. at 12.30 p.m., respondent Goga Ram was found carrying 30 K.Gms of milk, in a container, for sale. The Food Inspector T.N. Saxena suspected the milk to be adulterated. He issued a notice in the prescribed form to the accused and purchased 750 Grms. of milk for .75 paisa. The receipt evidencirg the payment of the amount to the accused is Ex. P1 which bears the signature of the Food Inspector Trilckinath Saxena, thumb-impression of the accused respondent Goga Ram and the signatures of the two attesting witnesses viz, PW 2 Badri Narayan and Nand Kishore. He divided the milk in the three parts. Each part was then put into one clean dry bottle. 16 drops of formaline were added to Each part of the sample. All the three bottles were duly wrapped and sealed. The memo Ex. P. 2 recording the steps taken by the Food Inspector was prepared on the spot. It bears the signatures of the Food Inspector Triloki Nath Saxena, thum impression of the respondent and the signatures of the two attesting witnesses PW 2 Badri Narayan and Nandkishore (not examined) One sample of the bottle was given to the respondent, and the second was sent to the Public Analyst, Rajasthan, Jaipur with a memorandum in form No VII, which is Ex. P. 4. A separate memorandum containing the impression of the seal was also sent to the Public Analyst. The receipt is Ex. P. 3. The Public Analyst received the sealed bottle on 7-9-1966. He found the sample properly sealed. He analysed the contents of the sample. The Public Analyst was of the opinion that the sample of the milk was adulterated by reason of abstraction of about 24% of original fat. The report of the Public Analyst is Ex. P5 Thereafter the Food Inspector filed a complaint in the Court of Municipal Magistrate, First Class, Jaipur (west) against the respondent for his prosecution under Section 7/16 of the Act The Food Inspector was authorised to file the complaint vide Notification No. D. 972/HS dated July 24, 1963 published in the Rajasthan Rajpatra dated 12-9-1963 part VI(Ka), page 109.
2. The prosecution in support of their case examined two witnesses viz. PW. 1 T.N. Saxena, and PW 2 Badri Narayan. The accused in his statement under Section 342 Cr.P.C. denied the entire prosecution case. P.W.1 T.N. Saxena supported the prosacution case but PW/2 Badri Narayan made a statement contrary to the statement of PW/1 T.N. Saxena, According to PW/1 T.N. Saxena the receipt Ex. P 1 was in the hand of PW 2 Badrinarayan. P.W. 2 Badrinarayan categorically stated that the receipt Ex. P. 1 was not in his hand. He further stated that neither the sample was taken, nor the bottles were sealed, in his presence. PW/2 Badrinarayan in fact supported the statement made by accused. The learned Magistrate held that the prosecution failed to prove that the accused was carrying the milk for sale or it was sold or was kept for sale He further held that the compliance of Sub-section (7) of Section 10 of the Act was not made. The learned Magistrate observed that the prosecutor who was incharge of conducting the case did not choose to request the court to permit him to cross examine PW/2 Badrinarayan and did not get the witness declared hostile. There was no reason to disbelieve the statement of PW/2 Badrinarayan and as such it was not possible to believe that the Food Inspector completed the formalities required to be performed for taking the sample and getting it analysed. He found it unsafe to rely on the statement of PW/1 Trilckinath Saxena and gave benefit of doubt to the accused-respondent and acquitted him.
3. Being aggrieved of the verdict of acquittal the Municipal Council, Jaipur has come up in appeal.
4. After the admission of the appeal a notice was issued to the respondent Gogaram stating that the appeal filed by the Municipal Council, Jaipur challenging the order of acquittal dated 14-12-1970 passed in favour of the respondent by the Municipal Magistrate, 1st Class (West, Jaipur in Criminal) Case No. 152/66 has been admitted and the appeal would be taken up for hearing on January 24, 1972. The nonce was served on the respondent on 7-1-1972 but the respondent has not chosen to appear before this Court to contest the appeal.
5. This is an appeal against the acquittal, It is well settled that in an appeal under Section 417 of the Code of Criminal Procedure against acquittal this Court has full power to review at large the evidence on which the order of acquittal was founded. But in exercising the powers conferred by the Code, and before reaching its conclusion upon the facts the Court is required to give proper weight and consideration to such matters as (i) the view of the trial court as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused; (iii) the light of the accused to the benefit of any real and reasonable doubt and (iv) the slowness of an appellants court in disturbing a finding of fact arrived at by a Judge, who had the advantage of seeing the witness. This Court is further required to take into account the reasons given by the court below in support of its order of acquittal & express is reasons in the judgment which may lead it to hold that the acquittal is not justified. Further if two reasonable conclusions be based upon the evidence on record, this Court should not disturb the finding of acquittal recorded by the trial court.
6. Keeping in view the above principles as laid down by their Lord- ships of the Supreme Court in Sethu Madhavan Nair and Ors. v. The state of Kerala 1974 Cr. LR (SC) 561.
7. I how proceed to evaluate the evidence recorded in this case After the amendment of the Act No. 49 of 1961 which came into force on March 1, 1964 the offence under Section 7/15 of the Act has become a grave one and the court should insist on strict proof of the offence committed by the accused in the manner required by law Sub-section (7) of Section 10 of the Act requires that when the Food Inspect or takes any action under Clause (a) of Sub-section (1), (2), (4) (6) of Section 10 of the Act he is required to call one or more person or Sub-section to be present at the time when such action is taken and should take his or their signatures which means that at every stage that is from taking of the sample to the stage of sealing and giving of a bottle to the accused at least one witness must be present. The statement of PW 2 Badrinarayan reads that the sample of milk taken by the Food Inspector for analysis was not purchased in his presence. He further stated that neither the bottles were sealed in his presence nor any one of the bottle was given to the accused. He has supported the statement of the accused made under Section 342 CrP.C. The learned Counsel appealing on behalf of the Municipal Council urged that PW. 2 Badrinarayan want clearly against the record. But this witness was not declared hostile. It was the business of the person prosecuting the case in the court below to have requested the trial court to permit him to cross examine the witness to bring out distinctly the points on which he was changing his version. Besides this the prosecution did not produce the other attesting witness Nandkishore in support of their case. No cogent reason has been shown why PW. 2 Badrinarayan was not declared hostile and why Nandkishore could not be examined in the trial court. In the facts and circumstances of the case a presumption under Section 114(g) of the Indian Evidence Act, 1872 can be drawn against the prosecution to the effect that if Nandkishore would have been produced he would have not supported the prosecution case. Thus there is no evidence to show that the Food Inspector complied with the provisions of Sub-section (7) of Section 10 of the Act. It is true that breaches in the performance of his duties under Section 10(7) may not necessarily result in vitiating the trial but they certainly affect the credibility. A Food Inspector who does not follow the provisions of Sub-section (7) of Section 10 of the Act with which he is initially concerned cannot be assumed to have much regard for the truth. The trial court after giving cogent reasons has not considered it safe to place reliance on the solitary statement of PW,1 T.N. Saxena. Nothing his been brought forth before me on the basis of which the finding of fact, arrived at by the trial court can be reversed. It is a well settled position of law that even if two conclusions can be based upon the evidence on the record this court should not disturb the finding of acquittal recorded by the trial court.
8. The net result of the above discussion is that the appeal filed by the Municipal Council, Jaipur fails and the judgment dated 14-12-1970 of the Municipal Magistrate, First Glass (West), Jaipur is affirmed. The appeal is dismissed.