1. This appeal is against the acquittal of the respondent by the learned Sessions Judge of Guntur of an offence under the Prevention of Food Adulteration Act (XXXVII of 1954). Against the respondent who is a owner of retail shop, it is alleged that he had in his possession red-gram dhall for sale and that it was misbranded. At about 10-00 A.M on 23-10-1959, the Food Inspector (P.W 1) went to the shop of the respondent at Ongoje and having, purchased three giddas of this commodity and paid therefor and obtained the receipt (Exhibit P-2), he sampled the same and sent one of the samples to the Public Analyst. After the receipt of the report of the Analyst (Exhibit P. 3), the Food Inspector caused the respondent to be prosecuted for an offence under Section 16(1)(ii) read with Section 7 of Act XXXVII. of 1954. The accused raised several defences. He stated that his son-in-law was looking after the shop and he could not, therefore, be made liable. He put up the case that the dhall so seized belonged to D.W 1 who merely left it in his shop and therefore the same did not belong to him; nor did he intend that dhall to be sold. He raised the plea that no mediators were called in at the time of the seizure of the commodity and as there was violation of the provisions of Section 10(7) there could be no conviction in respect of that food article. The Additional Munsit-Magistrate, Ongole, applied the procedure of a warrant case in trying the accused as required under Section 16(2) or the Prevention of Food Adulteration Act, since there was prior conviction of the accused. He rejected the defence or the accused and found that the prosecution had made out the case as alleged by it. The Magistrate therefore convicted the accused and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 2,000/-. The accused thereafter preferred an appeal to the Sessions Court, Guntur. The Sessions Court allowed it and acquitted the accused. The learned Public Prosecutor on behalf of the State has filed this appeal and questioned in this Court the order of acquittal by the Sessions Court.

2. In support of the order of acquittal by the lower Court, the Sessions Judge found that while P.W 1 inspected the shop, seized the redgram dhall, sampled it and submitted the article so sampled for analysis to the Public Analyst, he did not call or make two persons to be present and take their signatures as required under Sec. 10(7). He also held that there was a duty cast upon the Food-Inspector to seize the articles only when he suspected them to be adulterated or misbranded, and that the seizure’ in the instant case of the redgram dhall cannot be said to be after any suspicion has been roused in the mind of P.W 1. In this view, the learned Sessions Judge thought that there was violation of the provisions of R. 9(c) framed under that Act. He also found that as in his view redgram dhall is not prohibited from being coloured, it cannot be said to be misbranded in this case as the yellow colour of the seized article should be attributed to Tartrazine, a coal far dye which is permitted to be used in accordance with Rule 28.

3. The learned Public Prosecutor attacked the view of the lower Court that the seizure of any article by the food Inspector unless he suspected it to be adulterated misbranded, as wrong. He relied upon sub-sec. (4) of Sec. 10 and argued that a Food Inspector as a preliminary to the seizure of the article need not make out that he suspected the article to be adulterated or misbranded. Sub-section (4) reads:

“if any article intended for food appears to any food inspector to be adulterated or misbranded, be may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided.”

4. In so far as this sub-section is concerned, there is no mention about the suspicion which the Food Inspector has to entertain before acting under it. All that it says is if it appears (or is made to appear) that the article of food is adulterated or misbranded, he may proceed under this sub-section. That situation may arise when he has any information to that effect or could be said to have other reasons also for him to move in the matter. It does not therefore seem to lay down that a suspicion much less which is well-founded should be entertained by the Food Inspector to make the seizure of the article of food legal. The other side relied upon R. 9(c) which enumerates the duties of a Food Inspector. That provision reads:

“9. Duties of Food Inspector. It shall be the duty of the food inspector—

(a) xxx

(b) xxx

(c) to procure and send for analysis, if necessary, samples of any articles of food which he has reason to suspect are being manufactured stocked or sold or exhibited for sale in contravention of the provisions of the Act or rules thereunder.”

5. It is necessary to observe that it is not the confirmed suspicion of the Food Inspector that is made a condition precedent while making out samples of the suspected articles of food, but the existence of reasons for entertaining a suspicion would be enough to make him move in the matter. Therefore, to make it appear that sub-section (4) of Section 10 and Rule 9(c) are in the nature of a condition precedent, whereby the Food Inspector should have a confirmed view in regard to a suspicion as to the adulteration or the misbranding of the food articles is, in my view, not warranted by those provisions.

6. The lower Court should therefore be held to have erroneously held that the prosecution cannot be laid by P.W 1 when he did not bring out either by his evidence or in any other way that he himself, on account of his personal knowledge, suspected the article to be misbranded. There is in this case, in my view, enough to make out that he was moving in the matter by seizing and sampling the food article because he had reasons to suspect, and it also appeared to him that the seized food article was misbranded.

7. The next point concerning the violation of the provisions of sub-section (7) of Section 10 is important as, if it is established, the consequences are far-reaching. It is contended by the learned Public Prosecutor that the direction contained in this sub-section is only directory and any violation thereof cannot therefore vitiate a trial. On the other hand, Mr. Seshatalpa Sayee for the respondent would have it that the violation of the mandatory provision, which enjoins upon the Food inspector to call not less than two persons to be present at the time when such seizure of sampling for analysis is made by the Food Inspector and to take their signatures, renders the trial void.

8. It is, therefore, necessary to examine the legal position as respects this provision. The start therefore be made by reading the sub-section itself. sub-section (7) of Section 10 mentions:

“Where the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall, as far as possible, call no) less than two persons to be present at the time when such action is taken and take their signatures.”

9. The employment of the word “shall” in this sub-section prima facie makes it appear that the direction to call not less than two persons to be present and to take their signatures is mandatory. But then the words that follow namely, “as far as possible” cannot but be said to qualify the force of that term so as to make it not applicable invariably in all cases. All the same that the obedience to the direction so given where it is possible to do so seems to be intended as an unbreakable rule.

10. Therefore, the condition for the applicability of this rule which is undoubtedly mandatory seems to consist only in the possibility of its application, which means that where it is not possible to secure witnesses at all, seizure of an article cannot be given up; but where it is possible that witnesses could be secured, it is obligatory on the part of the Food Inspector to make them be present. So much, in my view, flows from the language of this sub-section, and therefore any suggestion or argument that the presence of the attestors can be made to depend upon the sweet-will and pleasure of the Food Inspector without regard to the actual circumstances as bearing upon the possibility or impossibility of securing the presence of persons cannot be postulated as the necessary outcome of the language of this sub-section.

11. There is a large number of decisions bearing on the question how far and in what manner the direction contained in sub-section (7) of Section 10 is mandatory and what would be the consequences of the non-compliance with the provisions of this sub-section and when violation of that provision occurs. I may refer to some of them which have been cited before this Court by either counsel. The report of the decision in Raju Konar, In re, AIR 1959 Mad 118, seems to be the earliest, in which Somasundaram, J., clearly brought out the meaning to be ascribed to the words “as far as possible” employed in sub-section (7) of Section 10. In the words of the learned Judge:

“The expression “as far as possible” is intended to obviate the necessity of the presence of two persons and securing their signatures if the circumstances under which he takes the sample were such that there could not possibly be two persons present at the time.”

12. The learned Judge illustrated this by pointing out that on a solitary road on an evening if it is not found that any persons are present, it becomes impossible to call in two persons if seizure of milk is to be made in these circumstances. But he is emphatic in pointing out that:

“It does not mean that when two persons are available he can dispense with them and take protection under the clause “as far as possible”.”

13. In this High Court more than once the interpretation of this sub-section had been made. In Public Prosecutor v. Narasimharaju, 1958 Andh LT 760, Basi Reddy J., took the view that it cannot be said that in every case where there is non-compliance with the provisions of this sub-section, the conviction would be invalid and that it is only curable irregularity. On going through this decision, it could be gathered that, according to the learned Judge, the position would be so even if the Food Inspector made no attempt to call any person to be present at the time he seized the milk.

14. In a later decision of the same learned Judge reported in Public Prosecutor v. Venkataswamy, (1961) 2 Andh WR 90 : (1962 (1) Cri LJ 641), it was found as a fact that in that case the Food Inspector made an attempt to get two panchayatdars to witness the proceeding but they did not choose to co-operate with the Food Inspector. Therefore, observing that in such a situation it is difficult to see what more could have been done by the Food Inspector, and also observing that the Food Inspector had no power to compel persons to act as panchayatdars, it was field that in that case that contravention of the direction the sub-section (7) would not have the effect of rendering the seizure illegal and that the subsequent prosecution would be invalid even if there be no prejudice. No doubt, in this decision there also occurs the following observation:

“Moreover, the words “as far as possible” occurring in sub-section (7) of Section 10, indicate that this is a mere directory provision and not a mandatory provision…….”

15. But I should consider that this observation is meant not to be a general or a sweeping proposition as to render the direction not mandatory even when persons are or could be made available, or when the Food Inspector does not make any effort to procure the presence of two attestors. There are two decisions of Sanjeeva Row Nayudu, J. in Public Prosecutor v. Viswanatham, AIR 1960 Andh Pra 96 and Public Prosecutor… v. Nelluru Subrahmanyam, Accused…., AIR 1960 Andh Pra 584. In the earlier of these decisions, viz., AIR 1960 Andh Pra 96, this learned Judge distinguished the decision of the Madras High Court reported in AIR 1959 Mad 118, as a case of seizure of milk near a police station and preferred to adopt the view expressed in 1958 Andh IT 760. He further held the view that when a panchanama regarding the seizure of a food article is not produced, the seizure cannot become invalid but only a greater degree of proof regarding the seizure may be required.

16. According to the learned Judge, the omission to prepare a panchanama is not fatal to the prosecution. It may be observed that the view so taken by the learned Judge was influenced by the policy intended to deprecate the practice of public officers, who, through their negligence or through wilful default in following the directions, allow prosecutions — though not intentionally — to be nullified. But it looks to me that to hold that this sub-section cannot be regarded as mandatory, even where attestors could be made available and no attempt is made to secure their presence, is to disregard altogether the provisions of that sub-section which is mainly meant to prevent possible abuses in the matter of seizure, sampling or forwarding of a food article.

17. The decisions of the Kerala High Court which may now be taken up seem to support the other extreme in holding that the non-compliance of the provisions of this sub-section is a serious irregularity which not only could be taken to cause prejudice to the accused but also vitiate the trial. The earliest of them is found reported in State v. Mohammed Ibrahim, 1959 Mad LJ (Cri) 267 : (AIR 1959 Ker 351). This decision ruled that where the Food Inspector has not complied with provisions of Section 10(7) a conviction cannot be entered and that conclusion was also sought to be strengthened by the reasoning that even if such a thing is to be treated as an irregularity, it cannot be gainsaid that the accused is not prejudiced in such a case. No doubt, this proposition has been laid down on the analogy of a case decided by the Supreme Court. In Sunder Singh v. State Of Uttar Pradesh , (S) AIR 1956 S.C 411, which related to the position which arose in respect of non-compliance with the provisions of Section 103 of the Cr PC.

18. In State v. Natesa Gounder, 1959 Mad LJ (Cri) 821 which is a decision of a single Judge of the same High Court, it is pointed out that the use of the words “as far as possible” in sub-section (7) of Section 10 is meant only to obviate the difficult task of getting the witnesses in cases where the section occurs in isolated places, or at times during the day or night when it is not usual to and people walking about; and it therefore took the view that the provision is mandatory.

19. In Trivandrum City Corporation v. Arunachalam, AIR 1960 Ker 356, a Division Bench of the Kerala High Court had to deal with an appeal against the acquittal of an accused who had to his credit a prior conviction. It was held that the non-compliance with the requirement of sub-section (7) is a serious irregularity which has caused material prejudice to the accused. It was also found that the mahazar for seizure was attested by only one person and that attestor betrayed the prosecution. Therefore, observing that the prosecution has not offered any satisfactory explanation as to why the presence of one more independent witness could not be secured as required under sub-section (7) of Section 10, and also that the shop in question was situate in a very busy place and that it was easy to get two independent witnesses to witness the purchase of oil by P.W 1 (Food Inspector) and also attest the purchase mahazar, it was held that this defect caused material prejudice to the accused which could also be taken into account in sustaining the order of acquittal.

20. Thus, while the Kerala High Court seems to be inclined to the view that the procuration of the attestors to the mahazar for seizure of the food articles complained of is ordinarily an unavoidable necessity and the violation thereof rendered the trial of the accused invalid, the view of this High Court that when attempts were made by the Food Inspector to secure the presence of the attestors proved futile, the words “as far as possible” found in sub-section (7) did not render the defect incurable, appears to me, unexceptionable and also as legitimately flowing from the language of that sub-section. But the dispensing with the necessity for procuration of the presence of two attestors, according to the whim and, fancies of the Food Inspector or insisting upon more or better convincing proof of seizure as a substitute for the want of attestation by those persons seem to me to be unwarranted by the language of sub-section. If the latter interpretation has to be accepted sub-section (7) of Section 10 would, in my view, be rendered altogether nugatory.

21. It is not also possible to have to construe the presence of the words “as far as possible” in sub-section (7) as capable of negativing the direction, which is otherwise mandatory. True canons of Interpretation would insist that every part of the section is given its due effect without unduly hitting or eclipsing the other or altogether obliterating the effect of the other part. Construing this way, the reasonableness of making out the meaning of the words “as far as possible” to depend upon the possibility of securing the presence of the witnesses, according as the circumstances permit, becomes meaningful. That means that where such circumstances exist that the presence of two persons can be found to attest or an effort to secure the presence cannot be given up except for the reason that it is made impossible, the securing of the persons to attest the mahazar for seizure is a thing which cannot be dispensed with by the Food Inspector, as otherwise the intendment of the section, which is to avoid other undesirable consequences which will result on account of the violation of the rule would be frustrated.

22. I am, therefore, of the view that while compliance with the provisions of sub-section (7) is indispensable, exceptional circumstance must be proved to the hilt for bringing a particular case within the proviso creating an exception by use of words “as far as possible” for making out that the direction is impossible of compliance.

23. Now adverting to the facts of the instant case, there is no evidence whatsoever on record to show that P.W 1, the Food Inspector, made any effort in the busy locality, in which the shop of the respondent is situate, to secure the presence of two persons. But in the course of the trial, P.W 3, is called in as a witness. It is not clear what purpose is sought to be served in examining this witness. P.W 3, it may be observed, has not attested Exhibit P. 1, but he deposed that sometime after the food article was said to have been seized by P.W 1 he was asked to put his signature in a counter for saying that he took a sample of dhall from the shop of the accused. Such a testimony, to say the least, is worthless. It becomes clear that P.W 3 was not called in at the time of the seizure to be present or that he witnessed the mahazar. He has not been mentioned by P.W 1, the Food Inspector, or his Maistry (P.W 2) as a person present or one who has attested the mahazar.

24. In these circumstances, it is not possible to have even to infer that this witness served the purpose of being a mediator or an attestor. Therefore, it becomes plain that this is a case in which attempt to make it appear that P.W 3 could serve any purpose in regard to this has absolutely failed. If it is also borne in mind that in that busy locality at 10-00 A.M it was not impossible or difficult to secure the presence of mediators, this case, in my view, must be set down only as an instance of barefaced violation of the provisions of sub-section (7) of Section 10. When such is the case, I do not consider that when the prosecution has chosen to violate the directions in that sub-section, it is still open to it to sustain the conviction ignoring its provision which are undoubtedly mandatory in those circumstances.

25. The learned Public Prosecutor argued that this is a case in which in spite of the fact that there are no attestors to the mahazar (Exhibit P. 1) for seizure, the fact that the redgram dhall was seized from the shop of the respondent has not been denied, and having regard to this it could be taken that the sample was made out of the quantity purchased from the accused. In the ordinary course, it is not expected of the Food Inspector to have tampered with or changed the seized article while sending it to the Analyst. But the insistence upon the presence of two persons who have to attest the mahazar as intended by the framers of this sub-section, makes it necessary that the action of the Food Inspector must be beyond all doubt and above suspicion. When such a course has been chalked out with reference to the safeguards provided in this sub-section, it cannot but be said that the course followed by the Food Inspector in contravention of this direction is not only whimsical but unprovided for by legal procedure. In this view, I am unable to differ from the view taken by the Sessions Court that the prosecution is unsustainable.

26. As the above conclusion reached by me does not call for interference with the order of acquittal, it is unnecessary to deal with the other point viz., whether the said redgram is coloured with tartrasine as held by the lower Court. I refrain from expressing any opinion in regard to this matter, as it is unnecessary. In the result, this appeal fails and is dismissed.

GG/M/D.V.C

27. Appeal dismissed.