The main legal point established is the importance of complying with statutory requirements for taking samples and giving notice, as well as the necessity to prove misrepresentation in cases of misbranded food articles.

1. A vendor is prosecuted for selling mis branded food article to the Food Inspector. It is alleged that the vendor gave peas dhal to the food inspector as though the same was Toor dhal. The trial court acquitted the vendor and so the food inspector has filed this appeal challenging the acquittal.

2. The appellant Food Inspector visited the shop of the vendor (who is the respondent) on 21-2-1985 and took sample from dhal stored for sale in the shop. Appellant's case is that the respondent sold it as toor dhal. When one of the parts of the sample was analysed the Public Analyst reported that the sample consists "wholly of peas dhal". Ext. P2 is the cash voucher issued by the respondent in which the food article has been shown as toor dhal. The report of the Public Analyst shows that it was peas dhal. Thereupon the complaint was filed against the respondent for selling mis-branded food article, as defined in Clause (ix) of S.2 of the Prevention of Food Adulteration Act.

3. The respondent's case is that he sold only dhal which is peas dhal and that Ext. P2 voucher was written by him as dictated to him by the Food Inspector. Respondent's further case is that toor dhal was not available in his shop at all, and that he gave dhal to the Food Inspector from the stock purchased by him from his dealer as per Ext. D1 bill. Learned Chief Judicial Magistrate held that the Food Inspector did not comply with S.10 (7) of the Act, and there was violation of R.12 of the Prevention of Food Adulteration Rules. It was further held that R.17 was also contravened by the Food Inspector and that there is no evidence to show that the requirements in R.7 were complied with by the Public Analyst. The trial court did not accept the evidence that the respondent sold the food article representing the same to be toor dhal. On all those grounds the respondent was acquitted by the learned Magistrate.

4. Since no independent witness has signed in Ext. P3 mahazar which was drawn up by the Food Inspectoral the time of taking the sample, the court below concluded that S.10(7) of the Act has not been complied with. The food inspector as PW.1 has deposed that he took the sample in the presence of witnesses, but the witnesses refused to put signature in the mahazar. In cross-examination, the defence counsel suggested that two persons who witnessed the sampling refused to sign the mahazar as it contained a recital that toor dhal was sold by the vendor. The aforesaid suggestive question supports the case of the Food Inspector that two witnesses were called by him, when he took the sample. The requirements in S.10 (7) would stand substantially complied with if the Food Inspector calls one or more persons to be present at the time when action is taken, although those persons declined to affix signature in any document prepared by the Food Inspector, for their own reasons. The object of S.10(7) is to enable the court to adjudicate upon the propriety of the search or the seizure to determine the authenticity of the sample taken by the Food Inspector. It is a question of fact in each case as to whether there has been any error or omission in the manner of taking the sample. Prior to the amendment Act 49 of 1964, the section required calling of not less then two persons as far as possible. But, after the amendment the words are "shall call one or more persons to be present at the" time when such action is taken and take his or their signatures". Thus, it is now mandatory to call one or more persons when the action is taken. But if the Food Inspector calls one or two persons, and those persons decline to co-operate, prosecution is relieved of its obligation to take their signature. (Ram Labhava v. Delhi Municipality, AIR 1974 S.C. 789) and M. Rajan v. Food Inspector, 1982 K.L.T. 706). On the facts of this case, the Food Inspector did call two persons, but they did not co-operate in putting their signatures. Hence there is no violation of S.10(7).

5. Contravention of R