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Sitaram Thirani v. State Of Orissa Opposite Party.
Factual and Procedural Background
The petitioner operated a retail grocery near the bus stand at Sundergarh town. On 11-11-1974 the Food Inspector (P.W.1) made a statutory purchase of til oil from the petitioner after serving notice (Ext. 1) and obtained a receipt (Ext. 2). Suspecting adulteration, the Food Inspector had the sample analyzed by the Public Analyst; the analyst's report (Ext. 3) indicated the sample was adulterated. Sanction for prosecution was obtained under Ext. 4, and the petitioner was prosecuted under Section 16(1)(a) of the Prevention of Food Adulteration Act.
The petitioner defended on the basis that the til oil sold was not for human consumption but for massage (external use), and that when asked for the purchase he told P.W.1 it was massage oil. Prosecution examined three witnesses: P.W.1 (Food Inspector), P.W.2 (Sanitary Inspector), and P.W.3 (a peon attached to P.W.1's office). The Magistrate convicted the petitioner, sentencing him to six months' rigorous imprisonment and a fine of Rs.1,000/- (or two months' rigorous imprisonment in default). The Additional Sessions Judge on appeal confirmed the conviction and sentence. The petitioner filed this revision application against the confirming appellate decision.
Legal Issues Presented
- Whether there was compliance with Section 10(7) of the Prevention of Food Adulteration Act and, if not, whether the prosecution is thereby vitiated.
- Whether the petitioner's defence that the til oil was sold only for massage (not as food) and that he informed the purchaser accordingly should have been accepted.
- Whether reliance could properly be placed on Ext. 5 (a list of articles sold in the petitioner's shop identifying til oil as Item No. 3) as proof of the charge.
Arguments of the Parties
Petitioner's Arguments
- There was no compliance with Section 10(7) of the Act, and on that ground the prosecution should be vitiated.
- The petitioner told P.W.1 that the til oil was meant only for massage (external use) and not for human consumption; this defence should have been accepted.
- Ext. 5 should not be relied upon by the prosecution as it was not shown to have been read over to the petitioner, and the petitioner could not read or write Oriya; therefore it should not be treated as an admission or substantial evidence.
Prosecution's Arguments
- The statutory purchase was made and the Public Analyst's report (Ext. 3) established that the sample of til oil was adulterated.
- The prosecution witnesses (P.W.1, P.W.2 and P.W.3) stated that the petitioner sold the til oil as edible oil, contradicting the petitioner's claim that it was for massage only.
- The Additional Government Advocate emphasized the seriousness of food adulteration and supported conviction and stringent punishment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Labhaya v. Delhi Municipality, (1974) 4 SCC 491 : AIR 1974 SC 789 | Interpreted amended Section 10(7) to mean that "one or more persons" must be independent persons and emphasised the mandatory nature of calling independent persons to witness actions under the subsection. | The court relied on this authority to conclude that Section 10(7) requires the Food Inspector to call one or more independent persons when taking action; this precedent informed the court's analysis of whether non-compliance vitiates prosecution. |
| Food Inspector, Corporation of Calicut v. Vincent, ILR (1966) 2 Ker 551 | Held that provisions of Section 10(7) are mandatory (as cited in the opinion). | The court cited this decision as part of the line of authority establishing the mandatory character of Section 10(7), while also considering circumstances in which non-compliance might be excused. |
| Ram Sarup Tara Chand v. State, AIR 1965 Punj 366 | Held that Section 10(7) must be obeyed; cited as authority for mandatory compliance. | The court treated this case as supporting the principle that Section 10(7) is mandatory; it was used to frame the standard against which the Food Inspector's conduct was assessed in the instant case. |
Court's Reasoning and Analysis
The court proceeded by first noting the undisputed facts: a statutory purchase was made and the sample tested adulterated. It then addressed the applicability and effect of Section 10(7) of the Prevention of Food Adulteration Act, which requires that where a Food Inspector takes action under provisions including clause (a) of sub-section (1), he "shall call one or more persons to be present" and take their signatures. The opinion reviewed the legislative history: prior to amendment the sub‑section included the words "as far as possible" (implying an exception when it was impossible to secure witnesses); the amendment deleted those words, supporting a view that the requirement is mandatory.
The court examined judicial precedent (including Ram Labhaya and other cited decisions) that interprets Section 10(7) to require the presence of one or more independent persons. However, the court rejected the absolute proposition that non‑presence of independent persons would invariably vitiate a trial: it acknowledged established authority that an exception may apply when the prosecution shows it was not possible to secure independent witnesses. Thus, the obligation is mandatory but subject to the factual possibility of compliance.
Applying those principles to the facts, the court found there was no evidence that P.W.1 (the Food Inspector) attempted to call any person from the locality at the time of taking the sample. Further, evidence indicated that outsiders were available: P.W.2 admitted five to seven persons were in the shop at the time; defence witnesses (D.W.s 1 and 2) who were neighbouring shopkeepers said they were present along with others. P.W.3's statement that no outsider was present was disbelieved in favour of the more responsible testimony. The court concluded the prosecution did not establish that it was impossible to procure independent witnesses; therefore the statutory requirement was not complied with and on the authority discussed the prosecution was vitiated.
Regarding the petitioner's substantive defence that the oil was for massage only, the court noted that prosecution witnesses denied that the petitioner so informed the purchaser; P.W.1, P.W.2 and P.W.3 said the petitioner sold the oil as edible oil. The court was not prepared to disbelieve the prosecution witnesses and observed that the two courts below had acted on that evidence.
Concerning Ext. 5 (the shop's list of articles showing til oil as Item No. 3), the court found the document problematic for reliance as an admission: it was written by a prosecution witness, the petitioner signed it but claimed illiteracy in Oriya, there was no proof it was read over to him, and the document was not put to witnesses. On those grounds the court accepted the petitioner's counsel's contention that Ext. 5 should not be used as a substantive admission or major piece of evidence.
Finally, the court addressed the gravity of the offence, acknowledging Parliament's intent to punish food adulteration severely; however, it reiterated that even in serious offences the prosecution must prove guilt beyond reasonable doubt and must comply with legal requirements in gathering evidence.
Holding and Implications
Revision allowed; the conviction and sentence imposed on the petitioner are set aside.
Direct consequences:
- The court held that the prosecution was vitiated due to non-compliance with Section 10(7) of the Act because the Food Inspector did not call independent persons and the prosecution failed to show it was impossible to do so.
- Accordingly, the conviction and sentence were quashed and the petitioner's bail bond was cancelled.
The opinion does not assert the creation of a new legal precedent beyond applying and distinguishing existing authorities; it confines its relief to the facts of the case and the direct effect on the parties.
Disposition: Application allowed.
1. Petitioner is a retail grocer near the bus stand at Sundergarh town. On 11-11-1974, the Food Inspector (P.W 1) made a statutory purchase of til oil from him after serving notice under Ext. 1. He obtained a receipt in evidence of the sale under Ext. 2 and as he suspected adulteration, he got it analysed by the Public Analyst. Ext. 3 is the report of the Public Analyst showing that the sample til oil wag adulterated. He obtained sanction under Ext. 4 and petitioner was prosecuted under Section 16(1)(a) of the Prevention of Food Adulteration Act (hereinafter referred to as the ‘Act’). The defence of the petitioner was that he was not selling til oil as food but only for the purposes of massaging on the body. When P.W 1 asked for purchase of til oil he told him that he had til oil meant for massage.
2. Prosecution examined three witnesses in all — P.W 1 is the Food Inspector, P.W 2 is the Sanitary Inspector while P.W 3 is a peon attached to the office of P.W 1. The learned Magistrate accepted the prosecution case and convicted the petitioner for the charge framed against him and sentenced him to undergo rigorous imprisonment for six months and pay a fine of Rs. 1,000/- or in default suffer rigorous imprisonment for a period of two months. On appeal, the learned Additional Sessions Judge upheld the conviction and sentence. This revision application is directed against the confirming appellate decision.
3. It is not disputed that P.W 1 made a statutory purchase and on analysis the sample has been found to be adulterated. Three questions have mainly been canvassed in support of the petitioner:—
(i) There has been no compliance of Section 10(7) of the Act. Therefore, the prosecution is vitiated.
(ii) The defence story that the petitioner fold P.W 1 that he did not have til oil fit for human consumption should have been accepted as it has been duly proved as a fact.
(iii) No reliance should have been placed on Ext. 5 for proof of the charge.
4. Section 10(7) of the Act provides:—
“Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4), or subsection (6) he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.”
5. Admittedly action was taken in this case under Section 10(1)(a) and, therefore, the provision of sub-section (7) applied. Sub-section (7) underwent an amendment by Central Act 49 of 1964 with effect from 1st of March, 1965. Before amendment, the sub-section provided:—
“Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4), or subsection (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.”
6. Even prior to the amendment there was consensus in judicial opinion that compliance with the provisions of sub-section (7) is indispensable. There could, however, be exceptional circumstances for bringing a particular case within the exception covered by the words ‘as far as possible’. Courts took the view that obedience to such mandatory direction where it is possible to do so seeing to have been intended as a unbreakable rule and the only condition which could admit of an exception was, when the prosecution established that it wag not possible.
7. The provisions contained in the subsection are by way of a safeguard against the abuse of the wide powers vested in the Food Inspector or in the matter of entry, search and seizure and, therefore, it is intended to be complied with. The Supreme Court in a recent case dealt with the legal position after the amendment in the case of Ram Labhaya v. Delhi Municipality, (1974) 4 SCC 491 : AIR 1974 SC 789 : (1974 Cri LJ 672). After quoting the sub-section, the Court observed:—
“There can be no doubt that one or more persons must mean one or more independent persons. The legislative history of sub-section (7) further shows that at the least, the Food Inspector ought to try and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in the sub-section. Prior to its amendment by Act XLIX of 1974, subsection (7) ran thus:—
“Where the Food Inspector takes any action under clause (a) of sub-section (1)………… 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.’
8. By the amendment of 1964, the words as far as possible were deleted. This deletion naturally lends plausibility to the contention that the provisions of Section 10(7) are mandatory and it has been so held in Food Inspector, Corporation of Calicut v. Vincent, ILR (1966) 2 Ker 551 and Ram Sarup Tara Chand v. State, AIR 1965 Punj 366 : (1965 (2) Cri LJ 406).
9. 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 the subsection, 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 none was willing to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses. …………”
10. In the instant case, there is no evidence that P.W 1 made an attempt to call anybody from the locality. On the other hand, in cross-examination he has clearly admitted that he did not call any member of the public at the time of collection of the sample. There is positive evidence to show that such persons were available. In fact, there were many persons in the shop itself at the time when the statutory purchase was being made. P.W 2 who accompanied the Food Inspector and is himself a Sanitary Inspector of Food categorically stated in his cross-examination that at the time when samples were being taken there were five to seven persons in the shop. D.Ws 1 and 2 who are neighbouring shopkeepers have them selves stated that they were present and besides them there were also others. It is true that P.W 3, the peon attached to the Food Inspector, has said that no outsider was present at the time of drawing samples. I am, however, not inclined to accept that evidence in view of a more responsible officer like P.W 2 admitting the presence of outsiders and D.Ws 1 and 2 clearly deposing that outsiders including themselves were present. Again this is not a case where P.W 1 took steps to call any outsider and yet nobody was prepared to come and witness his statutory action. On the authority of the decision of the Supreme Court referred to above, in the instant case the prosecution must be taken to be vitiated.
11. The next contention of the petitioner is that when P.W 1 wanted to buy til oil he clearly told the purchaser that he had only til oil fit for massage i.e, external use and not for human consumption. Each of the prosecution witnesses when suggested has denied this fact. P.W 1 has said that the accused on his asking told him that til oil was sold as edible oil. P.Ws 2 and 3 have also made similar statements. It is true that the accused in his statement and his two witnesses have supported the defence stand. I am not however, prepared to disbelieve the prosecution witnesses particularly in view of the fact that the two courts below have acted on it.
12. The last contention of petitioner's counsel is that no reliance should have been placed on Ext. 5. Ext. 5 is a list of articles sold in the shop of the petitioner. Therein he has mentioned til oil as Item No. 3. It Is true that the document has been written out by a prosecution witness and the petitioner has signed in his own hand in that list. Petitioner's stand is that he is not able to read and write Oriya. There is no evidence to show that what was written in Ext. 5 was ever read over to him and that the petitioner admitted the contents to be true. Again, the document has never been put to the witnesses though according to the prosecution it is sufficiently implicating. Keeping all these aspects in view, I am prepared to accept the contention of petitioner's counsel that Ext. 5 should not be relied upon as an admission and a substantial piece of evidence to support the prosecution case.
13. Undoubtedly the offence if established is serious. Food adulteration has become a social menace in this country and Parliament is anxious to eradicate food adulteration by providing stringent punishment for the adulterer. Learned Additional Government Advocate is right in these submissions and I am also prepared to accept the same provided the charge is established beyond doubt. The facts that the offence is serious and the consequence is disastrous do not relieve the prosecution of proving its case beyond reasonable doubt as in any other case. On the other hand, it is appropriate that the prosecuting agency takes adequate care to comply with the requirements of law and does not allow such anti-social offences to go unpunished for technical lacunae. I must hold for the reasons already indicated that the prosecution is vitiated and the petitioner must be acquitted. Accordingly I allow the revision application, set aside the conviction and sentence imposed on the petitioner and cancel his bail bond.
14. Application allowed.
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