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Patna Municipal Corporation Patna v. Dularchand Sao .

Patna High Court

May 14, 1964

Judgment

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Factual and Procedural Background

This appeal was brought by the Municipal Corporation of Patna against the acquittal of the respondent on a complaint under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. On 31 March 1961 the Corporation's food inspector, Matiur Rahman (P.W.1), visited the Magadh Kirana Store (shop of Ramlakhan Singh) on Bari Path, Patna. The inspector 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 sales in the shop.

The food inspector gave the respondent a written notice of his intention to purchase a sample of turmeric (haldi), purchased six chhataks on payment (receipt Exhibit 3), divided the purchase into three parts, placed them in three sealed phials and obtained signatures of the respondent and P.W.s 2 and 3 on all phials; he retained one phial, sent one to the public analyst, and gave one to the respondent. The public analyst's report (Exhibit 5, dated 8 May 1961) found the sample adulterated: 20 parts per million of lead versus the prescribed maximum of 2.5 ppm. The Chief Executive Officer was informed and a complaint followed leading to trial.

At trial the learned Magistrate found that the respondent was the salesman who had sold the sample and that the sample was adulterated, but nevertheless acquitted the respondent. The acquittal rested on the learned Magistrate's conclusion that the food inspector had not complied with mandatory search-related provisions under Section 10 of the Act — specifically, that the inspector should have subjected himself to a personal search and obtained personal searches of the two witnesses so as to preclude the possibility of adulteration by the inspector himself. The Municipal Corporation appealed that acquittal.

Legal Issues Presented

Whether the learned Magistrate was correct in acquitting the respondent on the ground that the food inspector failed to comply with mandatory search/inspection requirements under Section 10 of the Prevention of Food Adulteration Act.
Whether the turmeric purchased needed to be shown to have been sold for use as food (rather than for dyeing) for the offence under the Act to be made out.
Whether the requirement in Section 10(7) to "call not less than two persons" means those persons must be independent inhabitants of the locality or otherwise disinterested.
Whether the second proviso to Section 10(5), which directs the food inspector to follow "as far as may be" the provisions of the Code of Criminal Procedure relating to search/inspection, imports the procedures contained in the Bihar Police Manual (e.g., Rule 165(e) requiring personal searches of the officer and of search witnesses), so that non-compliance with such Police Manual rules vitiates the action under Section 10.

Arguments of the Parties

Appellant (Municipal Corporation / Prosecution)

The food inspector complied with the statutory requirements of Section 10: he gave written notice (as required by Section 11), paid the price for the sample (Section 10(8)), divided and sealed samples with signatures of the inspector and the two accompanying witnesses, retained one sample and sent one to the public analyst.
The presence and signatures of the two jamadars (P.W.2 and P.W.3) satisfied the "as far as possible" requirement of Section 10(7) and distinguished the present case from cases of total disregard of the subsection.
The turmeric sample is covered by the Act's definition of "food" (Section 2(v)) because turquoise is usable as food for human consumption; the prosecution need not show it was actually sold for use as food.
Non-compliance with Police Manual rules or with every detail of CrPC Section 103 does not automatically vitiate the seizure or the proceedings; the court should scrutinize the evidence but may still uphold the action.

Respondent

The respondent contended he was not the shop's salesman and that he had been made to sign papers under pressure by the food inspector.
It was argued the turmeric might have been sold for use as a dye (not as food), invoking a precedent that purportedly requires proof that the article was intended to be used as food.
The respondent argued P.W.s 2 and 3 were not independent witnesses (being jamadars of the Corporation) and therefore did not satisfy Section 10(7).
The respondent relied on provisions of the Bihar Police Manual (Rule 165(e)) and the CrPC search provisions (Section 103) to assert the inspector ought to have made his own personal search and taken personal searches of the witnesses; the inspector's failure in this respect, it was argued, rendered the seizure/proceedings illegal and justified acquittal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Andhra Pradesh v. S. Satyanarayana, AIR 1958 Andh Pra 681	Relied on by respondent's counsel for the proposition that prosecution must show the article was sold for use as food.	The Court rejected reliance on this case, holding it had not taken into account the statutory definition of "food" in Section 2(v) of the Act and therefore did not support the argument that the prosecution must show actual intended use as food.
Public Prosecutor v. T. Seshaih, AIR 1964 Andh Pra 25	Cited as an instance of total disregard of the requirement in Section 10(7) (absence of any effort to secure two witnesses).	The Court distinguished that case from the present facts: unlike T. Seshaih, the inspector here had P.W.s 2 and 3 present and they had signed the phials, so there was not total disregard of Section 10(7).
Gopi Mahto v. King-Emperor, AIR 1932 Pat 66	Interpreted the phrase "two or more respectable inhabitants of the locality" to emphasize "respectable inhabitants" rather than strict focus on locality.	The Court relied on this interpretation to hold that the requirement in CrPC Section 103 (as to respectable inhabitants) focuses on respectability of witnesses; thus the absence of local inhabitants did not automatically invalidate the sample-taking where the witnesses were respectable and there was evidence the inspector attempted to get customers to sign.
Sunder Singh v. State of Uttar Pradesh, AIR 1956 SC 411	Authority for the proposition that contravention of CrPC Section 103 does not necessarily vitiate a search/proceeding, but calls for careful scrutiny of the seizure evidence.	The Court cited this case to support the principle that non-compliance with CrPC search formalities does not per se invalidate the action; hence the Court examined the evidence but did not hold the procedure fatal to prosecution.
Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822	Same principle as in Sunder Singh: a breach of search formalities under CrPC requires careful judicial scrutiny but does not automatically void the proceedings.	The Court relied on this authority alongside Sunder Singh to explain that although procedural lapses attract closer inspection, they did not by themselves invalidate the sample-taking or the prosecution's case in the instant facts.

Court's Reasoning and Analysis

The Court proceeded to examine the legal and evidentiary points raised and applied the Act's provisions to the facts as found on the prosecution's evidence.

Statutory notice and payment: The Court observed that Section 10(1) empowers a food inspector to take samples and, under Section 11, the inspector must give written notice "then and there" of intention to have the sample analysed. The food inspector's evidence showed such written notice was given (though the retained copy was not produced). The Court accepted P.W.1's sworn testimony as sufficient. Likewise, payment of the sample price (Section 10(8)) was admitted and not in doubt.
Definition of "food": The respondent's contention that the turmeric may have been sold for dyeing rather than as food was addressed by reference to the Act's definition of "food" in Section 2(v). The Court interpreted "used" in the definition to mean "usable" or "capable of being used" as food, not necessarily actually used for that purpose. Consequently, it was unnecessary for the prosecution to prove the specific intended use at the time of sale. The Court therefore rejected the reliance on the Andhra Pradesh case which, in the Court's view, had overlooked the statutory definition.
Presence of witnesses under Section 10(7): The Court noted Section 10(7) requires that the inspector "as far as possible" call not less than two persons to be present and take their signatures. Here P.W.s 2 and 3 were present and signed the phials, satisfying the statutory requirement as interpreted by the Court. The fact that they were corporation jamadars did not render them invalid because the subsection does not mandate independent persons, and there was no material to suggest they were interested or biased.
Applicability of CrPC and Police Manual rules: The second proviso to Section 10(5) directs the inspector to follow, "as far as may be", the provisions of the Code of Criminal Procedure relating to search/inspection. The respondent relied on CrPC Section 103 and Bihar Police Manual Rule 165(e) (which requires the officer to give his own personal search and take personal searches of the search witnesses). The Court concluded that:
- the second proviso does not incorporate the Police Manual rules; if the Legislature intended such incorporation it would have stated so explicitly;
- the Court cannot import Police Manual rules into the statutory provision;
- contravention of CrPC Section 103 does not automatically vitiate the search/proceedings (but it requires the court to scrutinize the seizure evidence carefully), citing Sunder Singh and Radha Kishan.
The Court also found evidence that the inspector had asked customers to sign but they declined, which further undercut the argument that no attempt had been made to obtain witnesses beyond P.W.s 2 and 3.
Credibility and ultimate factual conclusion: After considering the above, the Court concluded there was no reason to disbelieve P.W.s 1–3 or to infer collusion or mala fides. On the prosecution's evidence the inspector had purchased the sample from the respondent and the public analyst's report showed adulteration. Consequently, the defect relied upon by the learned Magistrate (failure to make personal searches) did not constitute a breach of any mandatory statutory provision sufficient to warrant acquittal.

Holding and Implications

Holding: The acquittal of the respondent was set aside; the respondent was convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954, and sentenced to undergo simple imprisonment for six months. The appeal was allowed.

Implications:

Direct effect on the parties: The respondent's earlier acquittal has been reversed, resulting in conviction and a six-month simple imprisonment sentence.
Procedural/legal implication as applied: The Court clarified that compliance with the Act's requirements (notice under Section 11; calling witnesses "as far as possible" under Section 10(7); payment under Section 10(8)) is what is essential; formal procedural practices from a Police Manual are not automatically incorporated into the statutory scheme unless the statute so provides.
No broader binding innovation: The opinion did not purport to create a new legal doctrine beyond interpreting the statutory provisions and distinguishing or applying earlier authorities; the decision turned on application of the Act's definitions and procedural language to the facts of this case.

GH/V.B.B

Result recorded in the opinion: "Appeal allowed." (the Court's formal disposition appears at the end of the judgment).

Show all summary ...

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.