Bedi, J.:— Petitioner Ram Sarup was running a grocer's shop at Dharamsala. On 10th June, 1963, H.R Khanna, Food Inspector, went to his shop at about 3-30 p.m and purchased 450 grams of desi ghee in the presence of Udo Ram his peon and Amritsaria Ram another person running shop close to the shop of the petitioner, after, paying him the price. The ghee in question was divided into three parts and sealed into three separate bottles. One of these bottles was sent to the public analyst, who reported that the ghee was adulterated because butyro-refractometer reading of the sample-ghee was in excess by 1.2 as it gave the reading of 44.2 The reichert value was 2.6 less than the prescribed minimum.
2. On the above facts a report against the petitioner was lodged. He was tried under section 16(1)(a)(i) of the Prevention and Food Adulteration Act, 1954 and sentenced to six months rigorous imprisonment besides a fine of Rs. 500 or in default of its payment to further rigorous imprisonment for three months. The petitioner went up in appeal which was dismissed by Shri R.S Bindra, Sessions Judge, Hoshiarpur at Dharamsala, but the sentence was reduced to a fine of Rs. 200 and in default of payment of the fine he was to suffer rigorous imprisonment for two months, vide his order dated 22nd January, 1964, out of which this revision petition has arisen.
3. Learned counsel for the petitioner raised a number of points for my consideration. One of those points was that the provisions of section 10(7) of the Act were not complied with which were obligatory. This sub-section runs as under:—
“10(7). 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 not less than two persons to be present at the time when such action is taken and take their signatures”.
4. It is admitted that the two persons who were present at the time of taking sample of ghee were Udo Ram and Amritsaria Ram. It is also admitted that these two persons had actually signed the relevant memo. Amritsaria Ram, however, resiled from his statement and when examined stated that although he had signed the memo but he actually reached after the sample had been taken by the Food Inspector. A request was made by the Public Prosecutor to declare this witness as hostile, but this request was turned down, and the learned Sessions Judge in my opinion rightly remarked that the Magistrate should have allowed this witness to be cross-examined. The other witness was Udo Kam, the peon of the Food Inspector. He, therefore, cannot be said to be an independent person. In that connection the counsel for the petitioner has invited my attention to a Division Bench decision of this Court in State v. Sadhu Singh,1 where it was held that the provisions of sub-section (7) of Section 10 of the Act were mandatory and not merely directory and it was the duty of the Food Inspector to comply with the same unless it was impossible to secure the attendance of two persons at the time he took a sample or did any of the acts under sub-sections (1), (4) and (6) of section 10. The law did not vest discretion in him to associate or not to associate two persons at the time of taking the sample, but it must be due to circumstances beyond his control that his failure to call two persons to witness the taking of sample would be excused. It was further held that accordingly when in a particular case sample was not taken in the presence of two persons, 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-section (7) of Section 10 but due to the non-availability of witnesses or some such cause. I am bound to follow this judgment. The counsel for the State, however, submitted that the words “as far as possible” in sub-section (7) were significant, and may be, therefore, the Ford inspector wanted to join some other shop-keepers of the locality but they refused to oblige him. But this is only a conjecture based on no Material. It is, however, not possible in all cases for the Food Inspector to have with him always two independent persons when taking action under-section 10(7) but such cases may be very few indeed. For instance, when the Food Inspector is going along with his peon or some other official and on the way he comes across a milk-seller, the Food Inspector checks him and obtains a sample of his milk as required under the law and there is no one near about the place except those who were already present with him; in such circumstances the non-compliance with this clause may be excused. In the present case, however, we find that the ample by the Food Inspector was taken at about 3-30 p.m There is Evidence that a number of other shops in the close proximity of the petitioner's shop were there. Besides there were other persons near about the spot at that time but the Food Inspector did not even care to ask any of those persons to witness the transaction.
5. For the foregoing reasons I feel that the provisions of sub-section (7) of Section 10 of the Act have not been complied with which were mandatory. The petitioner is, therefore, entitled to acquittal. I order accordingly.
C.M.N/A.M.S
Petition allowed.