Judgment

SARKARIA, J.:- The appellant was tried and convicted under Section 7/16 of the Prevention of Food Adulteration Act, for selling adulterated rock salt, by the Judicial Magistrate, First Class, Delhi, and sentenced to six months rigorous imprisonment and a fine of Rs. 1000/- on March 17, 1971. The Additional Sessions Judge on September, 6, 1971 accepted his appeal and set aside his conviction and sentence. Against that acquittal an appeal was filed in the High Court of Delhi which reversed the acquittal and convicted the appellant, restoring the sentence awarded by the Judicial Magistrate.

2. Dhan Kumar has now come in appeal after obtaining special leave under Article 136 of the Constitution, to this Court.

3. The prosecution case was as follows:

On May 30, 1970, at about 11.30 A.M. Shri R. P. Singh, Food Inspector, found five bags of white (rock) salt belonging to the appellant lying on the foot-path near the entrance to Munshi Ram Flour Mills. The appellant, Dhan Kumar, was there. The Food Inspector Shri R. P. Singh, then in the presence of Shri O. P. Sehgal (P. W. 3) another Food Inspector; Bishamber Dayal (P. W. 4) an employee of the said Mills, and Police Constable Jungpal Singh (D. W. 4) purchased 600 grams of that salt for five paise for the purpose of getting the same analysed, and obtained the receipt (Ex. P-A) from the appellant. A notice (Ex. P-B) was given by the Food Inspector to the appellant, intimating that the sample would be got analysed. The sample was divided into three parts which were put into three separate bottles and sealed. One sealed bottle was handed over to the accused and the remaining two were retained by the Food Inspector. Shri R. P. Singh prepared the inventory (Ex. P-C) in the presence of the said witnesses and obtained the signature of the appellant thereon. This inventory was attested by the witnesses who were present there including Police Constable Jungpal Singh (D. W. 4).

4. One of the samples was sent to the Public Analyst, together with memo (Ex. P-D), for examination. The Public Analyst made the report (Ex. P-E) to the effect, that the report (Ex. P-E) to the effect, that the sample of white salt was adulterated due to 3.31 excess of matter insoluble in water and due to the presence of extraneous matter like grit.

5. At the close of the prosecution case, the accused was examined under Section 342 of the Code of Criminal Procedure. He admitted that the Food Inspector had taken a sample of salt from him at the said time and place; but added that the bags of salt were not meant for sale but had been brought there to Munshi Ram Flour Mills for getting the same grinded after cleaning and washing. He further stated that the sample had been taken by the Food Inspector under threat of being arrested by the Police Constable who had been called to the spot.

6. The Judicial Magistrate rejected the defence plea. The Additional Sessions Judge, in appeal, accepted it with these findings :

(a) That the salt was not lying stored for sale, but had been brought there to the Mill for the purpose of having the same grinded after cleaning.

(b) The sample was obtained under coercion and threat. The transaction of so obtaining the sample was not a voluntary sale by the appellant, notwithstanding the fact that he accepted five paise as consideration of the sample obtained.

7. In arriving at the finding (a) Additional Sessions Judge did not accept the ipse dixit of Shri R. P. Singh (P. W. 1), to the effect, that the appellant was actually selling the salt from the bags, there, for the reason that there was no evidence, whatever, that the appellant had, apart from the lifting of the sample by the Food Inspector, sold salt at that place to any one. The learned Additional Sessions Judge also noticed several tell-tale circumstances, pointing to the conclusion that the bags of salt were not lying there for sale. The first of such circumstances, appearing in the evidence of the other Food Inspector (P. W. 3) was that