The court held that the accused's conviction was unsustainable due to the non-compliance with the procedural requirements of the Prevention of Food Adulteration Act, specifically the absence of independent witnesses during sample collection and the improper service of notice and report under Section 13(2).

M.R. Verma, J.—This is an appeal against the judgment dated 6.9.1996 passed by the learned Sessions Judge, Hamirpur whereby the conviction of and sentence imposed on the accused-respondent (hereinafter referred to as the accused ) under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) by the learned Chief Judicial Magistrate, has been set aside.

2. Case of the prosecution, in brief, is that PW-1 K.S. Verma, Food Inspector, purchased cloves from the business premises of the accused on 3.9.1992 at about 5.45 p.m. for analysis. On analysis of the part of the sample sent to the Public Analyst, the sample was not found to be conforming to the prescribed standard inasmuch as the sample was found to contain organic extraneous matter 3.15% by weight against the maximum prescribed standard of 2%. Therefore, after obtaining the written consent of the competent authority, the Food Inspector launched the prosecution against the accused, who came to be tried by the learned Chief Judicial Magistrate for the accusations under Section 16(l)(a)(i) of the Act and was finally convicted and sentenced to simple imprisonment for 6 months and to pay afine of Rs. 1,000/-. In default of payment of fine, the accused was ordered to undergo further simple imprisonment for three months.

3. Feeling aggrieved, the accused preferred an appeal which was heard and accepted by the learned Sessions Judge, Hamirpur and the conviction of and sentence awarded to the accused were set aside and he was acquitted of the accusations. Hence the present appeal by the State.

4. I have heard the learned Assistant Advocate General for the State and the learned Counsel for the accused and have also gone through the record.

5. The learned Sessions Judge has acquitted the accused on the following grounds : (I) That the Food Inspector while taking sample has not disclosed to the accused that he was purchasing the article of food for the purpose of sample. (II) That no independent witness has been joined in the process of taking of the sample. (III) That the report of the Public Analyst is invalid.

6. The conviction was also assailed before the lower appellate Court on the ground that the provisions of Section 13(2) of the Act have not been complied with. However, the Court below has not touched this aspect of the matter in the impugned judgment. The learned Counsel for the accused has, however, contended that even on this ground the acquittal order is supportable.

7. It has been stated by PW-1 K.S. Verma, that on visiting the business premises of the accused, he disclosed his identity to the accused and after serving notice Ex. PA purchased the cloves. Notice Ex. PA contains that the sample of article of food 375 grams of cloves was taken for the purpose of analysis. Thus, it cannot be held that the sample was purchased by the Food Inspector without intimating the accused that it was purchased for the purpose of analysis. The accused in his statement under Section 313, Cr.P.C. has admitted these facts. The learned Sessions Judge, therefore, has erred in holding that the sample in question was purchased by the Food Inspector without informing the accused that it was meant for analysis. Therefore, the ground (I) supra as a basis for acquittal of the accused is unsustainable.

8. It indisputably emerges from evidence that PW-3 Mai Ram, so called independent witness joined to witness the process of taking sample by the Food Inspector was, at the relevant time, running a Karyana shop. A person who himself was dealing in the sale of food articles within the jurisdiction of the Food Inspector cannot be said to be an independent witness. The requirement of calling one or more person by the Food Inspector to be present at the time of taking sample is not an empty formality but a requirement of law to lend assurance that the Food Inspector has taken the sample in accordance with the prescribed procedure. Therefore, the witness (s) to be