1. This is an appeal by the Municipal Corporation of Patna in a case instituted upon its complaint. It is directed against the acquittal of the respondent of an offence alleged to have been committed by him under Section 16(1)(a) of the Prevention of Food Adulteration Act (Act No. 37 of 1954), 1954. The following facts which appeal from the evidence adduced by the prosecution are not in dispute before me. Matiur Rahman (P.W 11 was the food inspector of the Corporation on the 31st March, 1961, he visited the Kirana shop of one Ramlakhan Singh situated on the Bari Path at Patna and known as Magadh Kirana Store. He was accompanied by two jamadars of the corporation Hasan Abbas (P.W 2) and Brajendra Pd Sharma (P.W 3). At that time, the respondent was conducting the sales in the shop. The food Inspector gave a written notice to the respondent of his intention to purchase a sample of turmeric (Haldi) for analysis. Thereafter he took six chhataks of turmeric from the respondent on payment to him of 0.47 nP. as its price and took receipt. Exhibit 3, from him. Thereafter, he divided the article into three parts and put them in three separate phials. He sealed all the three phials and took the signatures of the respondent and of P.W's 2 and 3 on all of them. He also put his own signature thereon. He then made over one of the sealed phials to the respondent; and out of the remaining two phials he subsequently sent one to the public analyst and retained the other in his custody. The report of the public analyst, Exhibit 5, which is dated the 8th May, 1901, disclosed that the sample in question was adulterated, inasmuch as it contained twenty parts per million of lead instead of the prescribed standard of not more than 2.5 parts per million. The matter was reported to the Chief Executive Officer of the Corporation and ultimately a complaint was filed in court for the prosecution of the respondent.
2. The respondent tried to show that he was not a sales-man of the shop and that he was led to put his signature on certain papers under pressure brought to bear upon him by the food inspector. He also took the plea that turmeric was not merely an article of food but also used for dying cloths.
3. The learned trying Magistrate came to the conclusion that the respondent was the salesman in the shop at the relevant time and he had sold the sample of turmeric to the food inspector and taken its price from him. He further held that the sample was adulterated, but he acquitted the respondent holding that the food inspector (P.W 1) had not complied with the mandatory provision relating to search as provided in Section 10 of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act). According to learned Magistrate, before taking the sample, the food inspector should also have given his own search and taken the search of the other two witnesses (P.Ws 2 and 3) so as to obviate any chance of any adulteration being made by the food inspector him self.
4. The whole question is whether the view taken by the learned Magistrate is in accord with the relevant provision of the Act.
5. Under sub-section (1) of S. 10 of the Act a food inspector has power to take samples of any article of food from any person selling such article and to send such sample for analysis to the public analyst. But in view of the provision in S. 11 of the Act before proceeding to take a sample of food for analysis, he must give notice in writing then and there of his intention to have it analysed, to the person from whom he has taken the sample. The evidence of P.W 1 clearly shows that he had given such a written notice to the respondent. It is true that a copy of the said notice, which P.W 1 had retained with himself, has not been brought on the record; but merely on that ground I do not see any reason to disbelieve the statement made by P.W 1 on oath in court.
6. The fact that the food inspector had paid the price of the sample to the respondent as required by sub-section (8) of S. 10 of the Act is really not open to any doubt A point was, however, raised by the learned counsel on behalf of the respondent that there is no evidence to show that what the respondent had sold to the food inspector was intended to be used as food and it is possible that the turmeric may have been sold for use as a dye. In this connection reference was made to the case of The Public Prosecutor, Andhra Pradesh v. S. Satyanarayana, AIR 1958 Andh Pra 681. But in view of the definition of “food” which is to be found in S. 2(v) of the Act, the Court is not concerned with the actual use to which the article in question may be put to constitute “food” for the purposes of the Act, it is enough that the article in question is usable as food or drink for human consumption. The word “used” which is to be found in S. 2(v) of the Act obviously means usable or capable of being used, and not to be used or for the purpose of being used. The Andhra Pradesh case, which has been relied upon by the learned counsel, has not noticed the definition of “food” which is to be found in the Act, and, there fore, with respect I do not agree with the view expressed therein that it is incumbent upon the prosecution to show that the article in question was sold for use as an article of food. I am, therefore, unable to accept this contention of the learned counsel.
7. Sub-section (7) of S. 10 of the Act lays down inter alia that where a food inspector takes samples of any article of food from any person selling such article, 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”. In the present case, this provision was complied with inasmuch as P.Ws 2 and 3 were present at the relevant time and they had both put their signatures on all the three phials into which the turmeric had been put and sealed after being divided into three parts it was however, contended on behalf of the respondent that P.Ws 2 and 3 were not independent persons since both of them were Jamadars of the Corporation, but sub-section (7) of S. 10 of the Act does not provide that the two persons must be independent persons at any rate, there is no reason to think that P.Ws 2 and 3 were not disinterested persons, inasmuch is, there is no material on the record to justify the conclusion that either of them had any interest getting the respondent prosecuted. In fact, as sub-section (7) stands, the requirement of calling not less than two persons to be present at the time when such action is taken is not imperative in every case in view of the use of the expression “as far as possible” made therein. What is necessary is that wherever possible, the presence of at least two persons should be secured. That was done in this case, and that really distinguishes this case from Public Prosecutor v. T. Seshaih, AIR 1964 Andh Pra 25 relied upon by the learned counsel, which was one of total disregard of the provisions of sub-section (7), since there was no evidence that the food inspector had made any effort whatsoever to secure the presence of two persons. That is not the situation in the instant case.
8. Learned counsel then relied upon the second proviso to sub-section (5) of S. 10 of the Act which lays down that “the food inspector shall, in exercising the powers of entry upon, and inspection of any place under this section follow, as far as may be, the provisions of the Code, of Criminal Procedure (Act V of 1898). relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code”. The provision for making a search which is to be found in Section 103 of the Cr PC enjoins that it should be made in the presence of “two or more respectable inhabitants of the locality in which the place to be “searched is situate”, and “a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses” It is contended that the food inspector (P.W 1) has violated this provision since he did not take the sample in the presence of two or more respectable inhabitants of the locality in this connection it was pointed out that it appears from the evidence of P.Ws 1 to 3 that at the relevant time there were customers present in the shop and transactions of purchase and sale were going on in the usual course, but not a single witness of the locality was called upon to beat testimony to the purchase of the sample. But this contention cannot prevail because, in the first place, in the expression “two or more respectable inhabitants of the locality”, the emphasis is not upon the word “locality” but upon “two or more respectable inhabitants”. This was pointed out by this Court in Gopi Mahto v. King-Emperor*, AIR 1932 Pat 66. Secondly, it has been elicited in the cross-examination of P.W 1 that he had asked “the customers to put their signatures as witnesses but they did not” In these circumstances, it is impossible to hold that the purchase of the sample was rendered illegal simply because P.Ws 2 and 3 in whose presence it was made were not inhabitants of the locality in which the shop in question was situate. It also cannot be suggested that P.Ws 2 and 3 were not respectable witnesses.
9. Learned counsel for the respondent then relied upon Rule 165(e) of the Bihar Police Manual which lays down the method of conducting a search of a place which has to be followed by a Police Officer while investigating into an offence. The rule provides that before conducting the search, the Police Officer must not only give his own personal search, but also take the personal searches of the search witnesses.
10. The food inspector (P.W 1) has admitted that this was not done at the time of purchasing the sample of turmeric from the respondent, and that is said to constitute a breach of the provisions of sub-section (7) read with the second proviso to sub-section (5) of S. 10 of the Act. In fact, this is the sole ground upon which the order of acquittal of the respondent is based, and which has been strenuously urged before me on behalf of the respondent. But the whole fallacy in the argument is that the second proviso to S. 10(5) of the Act makes no reference to any of the rules contained in the Police Manual and no reference:o them is also to be found in S. 103 or any other provision of the Code of Criminal Procedure. If the Legislature had intended that the rules contained in the Police Manual would be applicable;o a food inspector exercising his powers under any of the provisions of S. 10 of the Act, it would have clearly said so in the second proviso to S. 10(5) of the Act. But as the second proviso stands it is not open to the Court to import the rules of the Police Manual into the provisions of S. 10 and to strike down the action taken by the food inspector in exercise of his powers under S. 10 of the Act as illegal or invalid by reason of non-compliance of the provisions of the Police Manual Besides it is well established that a contravention of the provision of search contained in Section 103 of the Cr PC has not the effect of vitiating the search or the legality of the proceeding. But it undoubtedly casts a duty upon the Court to examine the evidence regarding the seizure with greater care, See Sunder Singh v. State Of Uttar Pradesh , (S) AIR 1956 SC 411 and Radha Kishan v. State Of Uttar Pradesh AIR 1963 SC 822.
11. In the present case, I am satisfied that P.Ws 1 to 3 could have no reason to have indulged in false implication against the respondent and I have, therefore, no doubt that the food inspector had purchased the sample of turmeric from him which was subsequently found to be adulterated with excess of lead. I am therefore, of the opinion that the ground upon which the acquittal of the respondent is based is not valid, since, there was no violation of any of the mandatory provisions of S. 10 of the Act. The result, therefore, is that the acquittal of the respondent is set aside. He is convicted under S. 16(a) of the Act and sentenced to undergo simple imprisonment for six months, and the appeal is accordingly allowed.
GH/V.B.B
12. Appeal allowed.
Comments