JUDGMENT

1. This is an appeal filed by the Food Inspector of the Cannanore Municipality against the order of the learned Sessions Judge of Tellicherry acquitting the respondent (accused) who was convicted by the District Magistrate of Tellicherry for an offence under S. 16(1) read with Section 7 of the Prevention of Food Adulteration Act — Act 37 of 1954 (hereinafter referred to as the Act.) On the morning of 24-12-61, P.W 1 one of the Food Inspectors of the Cannanore municipality found the accused carrying milk for sale. He purchased one bottle of milk and after notifying, that it was for the purpose of analysis duly sampled, the same in the presence of witnesses. One of the sample bottles and also the price was given to the accused and Ex. P. 1 is the Form VI notice prepared and the accused has acknowledged the receipt of the sample bottle in it. One of the Battles was then sent to the public analyst and his report Ex. P. 2 showed that the milk contained not less than 55% of added water. The accused was, therefore, prosecuted. The Food Inspector was examined as PW 1 and one of the two attesting witnesses was examined as PW 2. When examined PW 2 denied that he was present at the time of sampling but admitted that he had signed Ex. P. 1. The learned Magistrate disbelieved the evidence of PW 2 and accepting the evidence of PW 1 found the accused guilty and convicted him.

2. In appeal before the learned Sessions Judge of Tellicherry it was contended that there was contravention of the provisions contained in S. 10(7) of the Act inasmuch as the evidence does not show that any witnesses were present at the fine of sampling and as the directions contained in S. 10(7) are mandatory the whole trial was ???. The learned Judge accepted the contention that the requirements in S. 10(7) of the Act as to the presence of two independant witnesses was imperative and acquitted the accused on the ground that there was contravention of the provisions of S. 10(7) of the Act. The conclusion reached by the learned Judge is challenged in this appeal. On notice being given the respondent did not appear in court, but I have heard the appellant's counsel and the public prosecutor.

3. The view taken by the learned Sessions Judge appears to be clearly wrong. S. 10(1) of the Act confers power on the Food Inspector to take samples for analysis. Sub-s. (5) gives power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale and under the proviso to the sub-section the food inspector is required to follow the provisions contained in S. 103 of the Code of Criminal Procedure. Sub-s. (7) which is the material provision with which we are concerned reads:

“Where the Food Inspector takes any action under cl. (a) of sub-s. (1), sub-s. (2), sub-s. (a) or sub-s. (6), he shall as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures.”

4. So under S. 10(7) the Food Inspector is required to secure the presence of at least two persons at the time he takes the sample of any article of food for analysis from any person selling that article, unless it is not possible to secure the presence of such witnesses. Sub-s. (1) of S. 10 does not expressly state that a memorandum has to be prepared, when a sample is taken, but when read along with sub-s. (7) which requires obtaining of signatures of at least two persons who are called to witness the taking of sample it becomes abundantly clear that the Food Inspector has to draw up a memorandum about the taking of the sample and it is this memo that the signature of the witnesses have to be obtained. The rule framed under the Act do not prescribe any form for such a memo, though rule 12 lays down that when a Food Inspector takes a sample of an article of food for purposes of analysis he shall intimate such purpose in writing in form No. VI to the person from whom he takes the sample.

5. There can be no doubt that the legislature intended that the Food Inspectors should follow the procedure laid down in the Act and the Rules. So when in any particular case the procedure is not adopted it would be for the prosecution to satisfy the court that it was not on account of any desire to circumvent the provisions of sub-s. (7) of S. 10 of the Act that the procedure was not followed, but it was due purely to the non-availability of the witnesses. The provision has been enacted as a safeguard for an accused person, because the consequences of the conviction for an offence under this section are likely to be grave as a severe penalty is provided for second or subsequent offences. The court would, therefore, insist upon the observance of such safeguards as they are not intended to be set at nought or disregarded by the officers concerned.

6. The question then arises whether the non-compliance with the provisions contained in sub-s. (7) of S. 10 of the Act would render the entire proceedings void and vitiate the trial. I have been referred to the decision of the Madras High Court In re Raju Konar, AIR 1959 Mad 118 where Somasundaram, J., set aside the conviction of the accused in a case where the provisions of S. 10(7) had not been complied with.

7. The other decisions referred to are the decision in State v. Mohammed Ibrahim, 1959 Ker LT 395 : (AIR 1959 Ker 351) and State v. Natesa Gounder 1959 Ker LT 657. In the first of these two cases the failure of the Food Inspector to call any witnesses to attend at the time when the action was taken by the Food Inspector was characterised as a flagrant violation of the Act, but the decision was really based on the ground of prejudice caused to the accused. In the other case the earlier case was followed and it was held that S. 10(7) was mandatory in the sense that it is meant to be complied with.

8. Another decision to which reference may be made is the decision in City Corporation, Trivandrum v. Arunachalam Reddiar, A.I.R 1960 Kerala 356, a Division Bench ruling of this Court, where their Lordships while insisting upon the observance of the terms of this provision of law, held that the non-compliance was a serious irregularity, resulting in prejudice to an accused person.

9. The effect of all these decisions was considered in a later case in Criminal Appeal Nos. 92, 112 and 114 of 1960 (not reported) and after a review of the entire case-law Velu Pillai and Anna Chandy, JJ., came to the conclusion that non-compliance with the provisions of S. 10(7) of the Act is only an irregularity and the question which would arise on such non-compliance would be whether the accused is prejudiced and whether the evidence adduced is worthy to be acted upon.

10. The other High Courts also while insisting upon strict compliance with this provision of law have also held that it was only an irregularity which per se does not vitiate the proceedings relating to the taking of the sample or the subsequent prosecution based thereon.

11. In the case in State of Mysore v. Udipi Co-operative Milk Society Ltd. AIR 1960 Mys 80, a Division Bench held that they did not accept the view of the Madras High Court reported in AIR 1959 Mad 118 (cited supra) that a contravention of S. 10(7) of the Act however trifling it was per se vitiated the prosecution. They observed:

“The essential test was one of prejudice to the accused, apart from the reliability of the evidence adduced.”

12. The Madras case was distinguished as having no applicability to the facts of the case with which they were dealing.

13. In Public Prosecutor, Andhra Pradesh v. Chitlala Venkataswamy 1961 Mad LJ (Cri) 495 : (1962 (1) Cri LJ 641), Basi Reddy, J., observed:

“Sub-s. (7) of Section 10 of the Prevention of Food Adulteration Act requires a Food Inspector to do no more than call two persons to witness the seizure and the sampling of food suspected to be adulterated. He has no power to compel them to be present. The words ‘as far as possible’ occurring in sub-s. (7) of S. 10, indicates that this is a mere directory provision and not a mandatory provision, the contravention of which, would have the effect of rendering the seizure illegal and the subsequent prosecution invalid even if there be no prejudice.”

14. To the same effect is the decision in Public Prosecutor v. Viswanathan Chetty, AIR 1960 Andh Pra 96 where also it was ruled that mere violation of sub-s. (7) of S. 10 of the Act would not by itself affect the legality or validity of the Act of the food inspector and non-compliance would the a curable irregularity which would not vitiate the trial.

15. In Kapoor Chand v. City of Jabalpur Corporation AIR 1960 Madh Pra 179, Naik, J., while holding that non-compliance with sub-s. (7) of S. 10 did not vitiate the trial, went to the extent of observing that the provisions regarding the calling of two presons as witnesses at the time of taking the sample was directory and not mandatory.

16. The same view was taken in a recent decision of the Punjab High Court in State v. Sadhu Singly AIR 1062 Punj 548, where their Lordships held that sub-s. (7) of S. 10 merely prescribes the procedure for taking samples of the article suspected to be adulterated and it will be unreasonable to hold that any non-compliance with this provision of law, however minor it may be, would render the prosecution based upon such taking of samples illegal.

17. A provision similar to that contained to sub-s. (7) of S. 10 of the Act is to be found as, Section 103 of the Cr PC, the relevant portion of which runs as follows:

“103(1) Before making a search under this chapter, the officer or other person about to mate it shall call upon two or more respectable inhabitants of the locality in which the place to he searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

xxxxxx”

18. On a comparison of these two provisions of law it will be noticed that, in fact, S. 103 of the Code of Criminal Procedure is more stringent. The expression “if possible,” which occurs in sub-s. (7) of S. 10 of the Act has no place in S. 103 of the Code of Criminal Procedure.

19. It is now well settled that nan-compliance with Section 103(1) of the Cr PC, does not render the search illegal, nor does it vitiate the proceeding taken in respect of recovery of incriminating articles as a result of a defective search. It is needless to refer to the numerous decisions of the various High Courts as the matter has been finally settled by the Lordships of the Supreme Court in Sunder Singh v. State Of Uttar Pradesh , (S) AIR 1956 SC 411 where the Lordships observed:

“At the highest the irregularity in the search and the recovery in so far as the terms of S. 103 had not been fully complied with, would not affect the legality of the proceedings. It only affected the weight of evidence.”

20. In dealing with the provisions of Section 103 of the Cr PC, their Lordships of the Judicial Committee observed as follows in Malak Khan v. Emperor, AIR 1946 PC 16:

“In their Lordships' opinion, the presence of witnesses at a search is always desirable, and their absence will weaken and may sometimes destroy the acceptance of the evidence as to the finding of the articles, but their attendance at the search is not always essential in order to enable evidence as to the search to be given.”

21. These decisions were followed in a Full Bench decision of this High Court in Cochan Velayudhan v. State of Kerala, 1960 Ker LT 753 : (AIR 1961 Kerala 8), where it was held that the contravention of the provisions of Section 103 of the Cr PC thereby making the search defective will not vitiate the trial or make the evidence of the search officers inadmissible in evidence.

22. This is the view taken in a recent decision of the Supreme Court in Radha Kishan v. State Of Uttar Pradesh , AIR 1963 SC 822. There it was stated:

“It may be that where the provisions of Sections 103 and 165 of the Cr PC are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues, and the seizure of the articles is not vitiated.”

23. Therefore there can be no doubt that the view taken by the learned Sessions Judge that the non-compliance of the provisions of Section 10(7) will vitiate the trial resulting in the acquittal of the accused is wholly erroneous. Probably, these decisions had not been placed before the learned Judge.

24. That apart, I am unable to see how in 46 case the learned Sessions Judge has come to conclusion that there is a violation of the provisions of S. 10(7). According to the evidence of Pw. 1 the sample was taken in the presence of two witnesses and they have attested the memo Ex. P-1 which was prepared on the spot. The only question would be whether the evidence of Pw. 1 could safely be accepted. The mere fact that one of the attesting witnesses when examined deposed that he was not present at the time of the sampling and that he signed the memo later is not by itself sufficient to hold that the directions contained in S. 10(7) were not complied with. The learned Judge has further to consider the question as to whether Pw. 1's evidence could safely be accepted in preference to the evidence of the attesting witnesses.

25. There is no rule of law that the evidence of Ac Food Inspector alone cannot be believed and accepted by the Court. If the Court is unable to place full faith on the evidence of the Food Inspector then the non-examination of the attestors may assume some importance. In this case the learned Judge has not considered this aspect of the matter at all. Pw. 1 has deposed to the circumstances leading to the purchase of the milk and how it was dealt with by him. The learned Judge has to consider on the evidence whether any material has been brought on record to show that his evidence cannot safely be accepted. He has also to consider whether the evidence of Pw. 2 which is opposed to the recitals contained in Ex. P-1 ??? to be accepted. Merely because one of the attesting witnesses says that Ex. P-1 was signed by him later and that he was not present at the time of the sampling would not conclude the matter and enable the Court to straightaway come to the conclusion that the provision of S. 10(7) has not been complied with. The Court has to consider whether the evidence of Pw. 2 is sufficient to wipe out the effect of the evidence of Pw. 1 who normally could be taken as a disinterested witness.

26. As there is absolutely no discussion of the evidence and the acquittal has been based only on the ground that non-compliance with the provisions of Section 10(7) vitiates the entire trial it would be fair to the accused if I set aside the order of acquittal and remand the case for re-hearing by the learned Sessions Judge. Ordered accordingly. The learned Sessions Judge would give notice and give an opportunity to the parties to be heard. The appeal is allowed.

DH/MVJ/D.V.C

27. Appeal allowed.