1981 Supreme(MP) 28

M. D. Bhatt, J.
Food Inspector, M. C. Chhatarpur v. Halke.
Cr. A. No. 666 of 1979 (J); Decided on 22-1-1981.

Headnote:(1) Evidence Act, 1872 -- Ss. 154 & 155 -- witness of Panchanama turned hostile but declared so -- effect -- Practice (Criminal).

        (2) Practice (Criminal) -- Panchnama witness turned hostile -- such witness should be declared so and cross-examined.

        (3) Evidence Act, 1872 -- S. 134 -- solitary evidence of interested witness -- when not reliable.

        (4) Prevention of Food Adulteration Act, 1954 -- Ss. 7 (1) & 16 (1) (a) (i) -- offence under -- when made out -- taking of sample not established -- offence not made out.

        (5) Prevention of Food Adulteration Rules, 1955 -- R. 14 -- sample of milk -- taking of -- bottles should be empty, clean and also dry.

        Food Inspector had purchased the sample of milk from the respondent-accused on 31-12-76 and the sample of the same, after completing the requisite formalities as enjoined by the Act and Rules made thereunder, had sent the same to the public Analyst, who found the milk to be adulterated. The trial Court, relying on the Food Inspectors evidence convicted the respondent-accused of the offence in question and, sentenced him six months RI and to pay the fine of Rs. 1,000/-. Appeal against the same was preferred. The lower appellate Court acquitted the respondent-accused on the ground that there was no proof that the Food Inspector had kept the sample of milk in dry bottles as required by Rule 14 of the PFA Rules and also on the ground that the solitary evidence of the Food Inspector in the absence of the corroborative evidence of P. W. 2 Nathuram in the matter of the taking of the sample, was not reliable. Being aggrieved with the said Judgment, the Municipal Council has come in appeal.

        Held : The learned counsel for the appellant Municipal council has urged before me that the Food Inspectors version in the matter of taking of the sample should have been relied on despite the evidence to the contrary of the panch witness P. W. 2 Nathuram. It is next urged that the seizure memo prepared by the Food Inspector was sufficient to show that the sample was taken in empty, clean and so also dry bottles and had been sent to the Public Analyst after duly sealing the same.

        The arguments pressed before me by the appellants learned counsel are obviously without any merit. The respondent-accused had, from initial stage, denied that any sample was purchased from him. It was incumbent on the complainant Prosecutor to prove the factum of purchase of the sample by the Food Inspector. Food Inspector has no doubt stated in his evidence that he has purchased the sample from the respondent-accused in presence of the witness. The Panchnama in this regard is Ex. P-3 which is shown to be signed by the two panch witnesses, Kashiprasad and Nathuram, Nathuram was examined in the case as P. W. 2. He has completely denied that the Food Inspector V. N Gupta had purchased any sample of the milk from the respondent-accused in his presence. According to him, his signatures on the Panchnama (Ex. P-3) were obtained at his own house. It was necessary for complainant to get this witness declared hostile, for cross-examination of this witness, but he was not declared hostile. The fact remains that P. W. 2 Nathuram who was not declared hostile, failed to corroborate the Food Inspectors version. It was, hence further necessary for the complainant to examine the other panch witness Kashiprasad, but he was not cared at all to be produced in the evidence for supporting the Food Inspectors version. In these circumstances, the lower appellate Court was right in disbelieving the solitary interested evidence of the Food Inspector Gupta on the material point that he had purchased any sample from the respondent-accused. It was equally necessary for the Food Inspector to depose in the Court in the matter of all the requisite formalities required for taking of the sample and for sending the same to the public Analyst. But the Food Inspector Gupta is not found to have discharged his duties faithfully and sincerely. He has simply stated that the sample was taken in three empty and clean bottles, but, he has not stated that the bottles were dry, which was necessary for the taking of the sample Acquittal of the respondent-accused was, hence, quite proper. Appeal dismissed.