JUDGMENT

V. N. Misra, J. - This is an application in revision by Shashi Kant against the judgment and order dated 4.7.81 by Sri R.R. Agarwal, Additional Sessions Judge, Mathura, in Criminal Appeal No. 242 of 1980 by means of which he upheld the conviction and sentence of the applicant under Sections 7/16 of the Prevention of Food Adulteration Act as recorded by Sri R.S. Garg, Chief Judicial Magistrate, Mathura.

2. Briefly stated the prosecution case was that on 7.9.1979 at about 6 p.m. S.N. Shukla, Food Inspector visited Sonkh Town in the district of Mathura and found the applicant Shashi Kant selling and exposing for sale mustard oil at his shop. The Food Inspector, suspecting this oil to be disclosed his identity and took a sample of the oil weighing 375 grams, M from the applicant and paid its price at Rs. 3.38. The Food Inspector also gave notice in Form VI to the applicant. He divided the sample into three parts and sealed them in three clean phials. One of them, when sent to the Public Analyst, Lucknow, and on being examined, was found to be adulterated. Sanction of the Chief Medical Officer was then obtained and a complaint was filed against the applicant, in which he has been convicted as aforesaid.

3. The applicant contended that he had no shop in Sonkh and examined two witnesses-D.W. Om Prakash and D. W. 2 Purshottam Das in proof of this contention. The testimony of these two witnesses was rejected on the ground that being of the same market, they were close to the applicant. But it seems to me that;the applicant could not have possibly examined better evidence than this because he examined two other persons of the same market, who stated that he had no shop in that market. It was, therefore, proved that he had no shop in Sonkh town.

4. It further seems that no sample was taken from him because his signatures could not be obtained on any document whatsoever. The Food Inspector stated that when notice in Form VI was given to the applicant, he/refused to sign. If the applicant did not sign the notice, two independent witnesses could be taken to prove that the notice was really given to him; but it could not be done. Then the Food Inspector was also not able to obtain receipt after he paid price of the sample of mustard oil taken, which he should have been able to obtain. In the total absence of any document showing that sample was really taken from the applicant, it could not be said that any sample was taken from him.

5. There was evidence that the sample was taken out in a bhagona and then weighed and no evidence was examined to show, whose bhagona it was and whether it was clean and dry. The oil may have, therefore, adulterated when kept in this bhagona.

6. The prosecution examined three eye-witnesses P.W. 1, S.N. Shukla, Food Inspector, P.W. 2 S.P. Verma and P.W. 3 Sunhari Lal. P.W. 2 and P.W. 3 both were from the office of the Chief Medical Officer. Thus all these 1 witnesses were from the same office and no independent eye-witnesses inspite of the provisions of section 10(7) of the Prevention of Food Adulteration Act were examined.

7. Since it was not proved that the applicant had any shop in Sonkh; because it was not proved that any sample was taken from him, it was also not shown that the bhagona, in which the sample was weighed, was clean and dry and because section 10(7) of the Act was not complied with, therefore, the applicant could not be convicted.

8. This revision is, therefore, allowed and the conviction of the applicant and the sentence imposed on him are hereby set aside. The applicant is on bail and need not surrender. His bail bonds are hereby cancelled and sureties discharged. The fine, if paid, shall be refunded to him.