The requirement of calling independent witnesses under section 10(7) of the Prevention of Food Adulteration Act, 1954, is not mandatory if the accused refuses to provide any witnesses.

( 1 ) ON November 1,1961, Shri M. L. Zutshi, Food Inspector, went to the shop of Shri Naval Kishore, petitioner and purchased a quantity of chillies powder for purpose of analysis. On one of the samples of that article of food being sent to the Public Analyst, for analysis, it was found to be adulterated with artificial coaltar dye.

( 2 ) SHRI Nirmal Kumar Jain, Municipal Prosecutor, filed a complaint against the petitioner. On the petitioner being tried by Shri Jagmohan, Magistrate First Class, Delhi, he was convicted for an offence under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and was fined Rs. 400. 00 only. The appeal filed by him against this conviction and sentence was heard by Shri R. N. Agarwal, Additional Sessions Judge, Delhi and was dismissed on February 26, 1966. Thereafter the present revision was filed in this Court.

( 3 ) THE learned counsel for the petitioner assailed the judgments of the courts below by contending that no independent witnesses were called by the Food Inspector to be present when samples of chillies-powder were taken, as was required by section 10 (7) of the Act. It was also urged that the report of the Public Analyst did not show the type of coaltar dye with which the sample was found adulterated and that there was nothing to show that the seal on the bottle containing the sample tallied with the specimen seal impression. Another contention raised was that Shri Nirmal Kumar Jain, who filed the complaint, was not an authorised person.

( 4 ) ON the date when the sample of chillies-powder was purchased, section 10 (7) of the Act had not been amended by the Prevention of Food Adulteration (Amendment) Act, 1964. Sub-Section (7), as it then stood, required as far as possible not less than two persons to be called to be present at the time of taking samples of any article of food from any person selling such articles. Besides Shri Zutshi, there were present. Shri Sachdeva, also a Food Inspector, and Om Prakash peon. They fully supported the prosecution version. Shri Zutshi deposed that two customers were present at the shop but they did not agree to become witnesses in the case. There is nothing to show that this part of the statement of Shri Zutshi is in any way incorrect. The two customers who were present at the shop. of the petitioner having refused to become witnesses the absence of any witnesses from the public cannot be regarded as non-compliance with the requirements of section 10 (7) of the Act, as it stood on the relevant date.

( 5 ) IT is true that the report of the Public Analyst did not indicate the type of coaltar dye which was present in the sample. During the trial, the public Analyst was also examined as a court witness and stated that the coaltar dye found in the sample was not classified though its colour was red.

( 6 ) IT was hardly necessary to classify the coaltar dye as under rule A. 05,10 of the rules in Appendix b to the Prevention of Food Adulteration Rules, 1955, chillies (capsicum) have to be free from extraneous colouring matter in order not to be adulterated. Due to presence of extraneous colouring matter in the form of coaltar dye the sample was rightly considered to be adulterated.

( 7 ) ON Form No. VII, which was sent along with the sample of chillies-powder, was affixed a specimen impression of the seal used to seal the sample. The report of the Public Analyst mentioned that he found "the seal" intact and unbroken which obviously meant that the seal tallied with the specimen impression. On this ground, therefore, no objection can be validly taken on behalf of the petitioner. Of course it would have been more proper if in the report the fact about the seal on the container of the sample tallying with the specimen impression of the seal had been specifically mentioned.

( 8 ) REGARDING the contention that the complaint was filed by an unauthorised person, it will be noticed t