1. The revision petitioners against whom the Food Inspector, Mobile Vigilance Squad, Trivandrum laid a complaint in C.C 392 of 1973 on the file of the Chief Judicial Magistrate, Ernakulam under Ss. 7(1), 14, 16(1)(a)(i) and 17 of the Prevention of Food Adulteration Act (for short ‘Act’) were dicharged by the learned Magistrate under S. 245(1) of the Criminal Procedure Code. On revision in Crl. R.P No. 125 of 1977 filed by the complainant, the second Additional Sessions Judge, Ernakulam set aside the order of the learned Magistrate and directed further inquiry into the matter. This order is now challenged before me. The Food Inspector laid a complaint against the four revision petitioners, who are alleged to be respectively the salesman, Manager and Managing Director of the 4th respondent company, alleging that on 30-7-1973 at about 3 p.m the Food Inspector visited the Hotei Sea Lord, belonging to the 4th respondent and after satisfying all the legal requirements purchased 900 grams of ice cream from out of 100 k.g of ice cream kept there for sale, sampled the same in accordance with the rules. One sample was sent to the Public Analyst for analysis and report of the Analyst showed that the sample did not conform to the standards prescribed for ice cream After satisfying the other requirements of law, the complaint was laid. The complainant examined 4 witnesses and marked Exts. P1 to P7 series. It was contended for the defence that ice cream is a primary food and no offence is made out in view of S. 2(ia)(m) proviso, as the possibility of water condensing inside the deep freezer and falling on the top layer of the ice cream cannot be ruled out and the Food Inspector has not stirred the entire 100 kgs. before taking the sample. Learned Magistrate held that a prima facie case has not been established for the reason that the sample taken was not representative of the whole and because of the proviso to S. 2(ia)(m). In revision the learned Sessions Judge did not agree with this conclusion and directed a further enquiry.
2. There is evidence to show that the Food Inspector purchased 900 grams of ice cream taken out of 100 kgs. of ice cream kept in a vessel inside the deep freezer. No witness has deposed that the entire mass of 100 kgs. was stirred before the sale was made. There was no suggestion made to any witness that whenever ice cream is sold, the entire mass of ice cream contained in the vessel will be stirred. If that is the normal mode of serving or selling ice cream, the salesman should have done it. The act and the rules do not contemplete that in situations like this, the entire mass of ice cream or food article must be stirred well before any portion is sold as sample to the Food Inspector. There is also no justification for the view taken by the learned Magistrate that water vapour inside the deep freezer will condense and fall as water drops on the top layer of the ice cream. That such a phenomenon takes place is not borne out by any materials placed before the court. In any event, it is a matter which could certainly be guarded against by the hotel. Further, the learned Magistrate committed serious error in assuming that ice cream is a “primary food” contemplated in S. 2(i-a)(m) proviso Primary food is defined in S. 2(xii-a) of the Act as any article of food being a product of agriculture or horticulture in its natural form. It is true that milk is one of the constituents of ice cream. But that will not make ice cream a product of horticulture or agriculture. The learned Magistrate was in error in assuming that ice cream is primary food. The view taken by the learned Magistrate that the sample should be representative of the entire quantity also does not appear to be correct-vide State of Kerala v. Alasserry Mohd. ((1978) 2 SCC 386 : AIR 1978 SC. 933). I am in agreement with the view taken by the learned Sessions Judge that the order of discharge is not sustainable on the ground stated by the Magistrate.
3. The learned counsel for the revision petitioners argued before me that the order of discharge can be supported on a different ground. According to him, the Food Inspector has violated the mandatory provisions of S. 10(7) of the Act by failing to call one or more independent witnesses at the time of the occurrence to witness the same. The mahazar Ext. P4 is seen attested by Pw. 2 the peon of the Food Inspector and Pw. 3, who is an employee of the Sea Lord Hotel. The argument is that Pw. 2 is subordinate to the Food Inspector and Pw. 3 is a person connected with a business dealing with food articles and therefore neither of them can be regarded as independent witnesses.
4. In Subramaniam Chettiar v. Food Inspector (1966 KLT. 788) Madhavan Nair, J. was of the opinion that the witness called must not be susceptible to the influence of the Food Inspector and must not be connected with the trade in food articles, and accordingly, held that employees of the Coffee Club from where the sample of milk was taken were intersted witnesses.
5. In Ouseph v. State of Kerala (1967 KLT. 290) Isaac. J. observed that the above view that person connected with trade in articles of food would not be an independent witness is not a general proposition of law and distinguished Subramanian Chettiar v. Food Inspector (1966 KLT. 788). In Food Inspector v. Padmanabhan (1967 KLT. 825) out of three attestors of the mahazar, two were employees of the hotel from where the sample was taken by the Food Inspector. Mathew, J. (as he then was) speaking for the Division Bench observed that it is not possible to lay down any hard and fast rule as to what class of persons will be independent, but it is difficult to characterise all persons belonging to or connected with trade in food articles as dependents or as under the influence of Food Inspector. It was also observed that the proposition in Subramaniam Chetliar v. Food Inspector (1966 KLT. 788) was too wide in amplitude to be accepted.
6. In Sanku v. Food Inspector (1979 KLT. 89) Food Inspector took sample from a milkman who was taking milk to a hotelier and this hotelier was one of the attestors of the mahazar. The accused contended that the sample was actually taken from the milk collected by the attestor from various milkmen. Bhaskaran, J. held that under the circumstances, the attestor cannot be treated as an independent witness.
7. In Food Inspector, Perinadu v. Narayanan Nair (1980 KLT. 454) the Food Inspector took sample of milk from a milkman taking milk for sale to a milk co-operative society. Sample was taken before delivery was effected. The Secretary of the society was one of the attestors of the mahazar. Kader J. held that there is no hard and fast rule that people engaged in trade in food articles are not independent witnesses or are under the influence of Food Inspector and that a realistic and practical approach has to be made to this question.
8. We see that the decisions of this Court have taken two opposite views in the matter. Among the decisions referred to above, except the decision reported in 1967 KLT. 825 which is a decision of a Division Bench, all the other decisions are of single judges. I am bound to follow the view expressed by the Division Bench in Food Inspector v. Padmanabhan (1967 KLT. 825).
9. This view is also strengthened by the observations of the Supreme Court in Ram Labhayya v. Delhi Municipality ((1974) 4 SCC 491 : AIR. 1974 SC. 789). In that case the Food Inspector called the neighbouring shopkeepers to witness the taking of sample. But none was willing to co-operate. It was held that the Food Inspector has discharged his statutory duty, by calling the neighbouring shop keepers and his conduct cannot be found fault with and there was no violation of S. 10(7) of the Act. If the court can presume that neighbouring shop-keepers are persons susceptible to the influence of the Food Inspector, then calling such shop keepers would not be fulfilling the mandatory duty under S. 10(7) of the Act. But the Supreme Court held that the calling of neighbouring shop-keepers is sufficient compliance with S. 10(7) of the Act. In paragraph 5 of the judgment the Supreme Court observed:
“It is easy enough to understand that shop-keepers may feel bound by fraternal ties.”
10. This observation shows that there is no justification to hold that all persons connected with trade in articles of food are to be presumed to be persons susceptible to the influence of the Food Inspector. The same principle must also apply with more strength to the case of the employees of the accused. The observations of the Supreme Court support the correctness of the decisions in 1967 KLT. 825 and 1980 KLT. 454. The Act provides for calling one or more witnesses (which only means independent witness) for the purpose of safeguarding the interests of the accused and to see that after a sample is taken the Food Inspector does not manipulate records to the prejudice of the accused. It also serves another purpose, viz., to get the benefit of independent corroboration of the evidence of the Food Inspector. The presence of such witnesses would normally ensure that the proceedings of the Food Inspector in taking the sample are regular and proper. In the present case besides the peon of the Food Inspector (who may be treated as not an independent witness), one of the employees of the hotel was present during the sampling and he has affixed his signature in the mahazar. I am not going into the evidence or probabilities regarding the version of the prosecution. Pw. 3, an employee of the hotel, cannot be said to be a person interested in the prosecution. The court cannot assume without any other evidence or circumstances that he is susceptible to the influence of the Food Inspector. If anything, he may be partial to the accused and not to the Food Inspector. Hence the court cannot assume that Pw. 3 is a person who is not independent and is susceptible to the influence of the Food Inspector. It has to be noted that Pw. 3 turned hostile and supported the defence. I reject the contention that S. 10(7) of the Act has been violated by the Food Inspector.
11. In this view it is unnecessary for me to consider the argument that when there is a violation of S. 10(7) of the Act, the Court has to presume prejudice to the accused and acquit the accused. The revision petition is accordingly dismissed.
12. Dismissed.