Sustainability of the order of conviction.

The revision petitioner has been convicted of an offence under sections 7 (1),16 (1) (a) read with 2 (1) (a) (m) of the Prevention of Food Adulteration Act by the Sub-Divisional Judicial Magistrate, Thanjavur, and has been sentenced to undergo imprisonment for three months and to pay a fine of Rs. 500. On appeal the conviction and sentence were confirmed by the Sessions Judge, Thanjavur.

2. The facts are: on 25th September, 1976 at about 9-15 a.m., P.W.1, the Food Inspector of Thiruvaiyar Panchayat purchased 660 ml. of milk from the petitioner, who brought the milk for sale. Exhibits P.2, is the receipt for the same. P.W.I, divided the samples into three parts, one was sent to the Analyst. From Exhibit P-4, the report of the Analyst it is seen that the milk was deficient in solids not fat to the extent of 31%. P.W.1. then laid the charge-sheet.

3. The defence was that the milk was taken by the petitioner for his own use. The only point urged before me in this revision is that P.W.1, the Food Inspector has not complied with the provisions of section 10 (7) of the Prevention of Food Adulteration Act (hereinafter called the Act) and, therefore, the conviction cannot be sustained. Section 10(7) provides that if the Food Inspector takes any action under clause (a) of subsection (1), sub section (2), sub- section (4) or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signature. What the learned Counsel points out is that the Food Inspector has not observed the salient safeguard provided in section 10 (7), namely, the sample was not taken in the presence of one or more persons. In support of this contention he relied on the ruling in Ram Labhaya v. Municipal Corporation of Delhi. That was a case where the Food Inspector was unable to secure the presence of independent witnesses, and was therefore, driven to take sample in the presence of the members of the staff only. Under those circumstances, the Supreme Court observed:

“We are of the opinion, particularly in view of the legislative history of section 10 (7), that while taking action under any of the provisions mentioned in sub-section, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which section 10 (7) casts on the Food Inspector is to ‘call’ one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shop-keepers to witness the taking of the sample but no one was willing to cooperate. He could not certainly compel their presence. In such circumstances the prosecution was relieved of its obligation to site independent witnesses.”

In Babulal Hargovindas v. State of Gujarattheir Lordships of the Supreme Court observed thus:

“It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of Wills where the law makes it imperative to examine an attesting witnesses under section 68 of the Evidence Act to prove the execution of the Will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. The provisions of section 10 (7) ares akin to those under section 103 of the Criminal Procedure Code, when the premises of a cit