JUDGMENT
J.B. Koshy, J.
1. This appeal when came up for hearing before the learned Single Judge (R. Basant, J.), his Lordship referred the matter to the Division Bench for answering the following questions:
“(i) Whether Section 10(7) of the Prevention of Food Adulteration Act is mandatory.
(ii) Whether the fact that one of the witnesses called by the Food Inspector to witness the sampling is an employee of the vendor would vitiate the proceedings against the vendor or the warrantor on the ground that the person called to witness the sampling is not an independent witness as insisted by Section 10(7).”
2. The first accused sold peas dhal to the Food Inspector on 28.11.1987. At the time of sampling, PW2 an employee of A1 was called as witness and he signed the mahazar and other documents. The sample, on analysis by the Local (Health) Authority, was found to be adulterated (Ext. P12). The sample contained 14.6% of inedible grain (Kesari dhal), consumption of which is injurious to health. Sale of a mixture of Kesari dhal (Lathyrus Sativus) is prohibited under Rule 44A(e) of the Prevention of Food Adulteration Rules, 1955. On second analysis by the Central Food Laboratory also it was found to be adulterated by Kesari dhal by 12.22% (Ext. P3). At the time of taking sample itself Ext. D1 bill was produced to show that the first accused had purchased the above from the second accused, a wholesale dealer. Therefore, charge sheet was issued on 18.9.1989 stating that as per Ext. P12 report peas dhal contained Kesari dhal and it is violative of Section 7(1) read with Section 2(1a)(a) and Rule 44A(e) of the Prevention of Food Adulteration Rules, 1955.
3. The main ground taken by the accused in the above case was that Section 10(7) of the P.F.A. Act is mandatory and PW2 was not an independent witness. In view of the violation of the mandatory provisions of the Act, it is contended that they are entitled to be acquitted. The first accused further contended that he is entitled to the benefit of Section 19(2) as he has purchased the above under warranty from the second accused. According to him, he purchased a bag containing 750 Kg of peas dhal and at the time of sale to the Food Inspector the bag contained 50 to 55 kgs. of peas dhal and he is entitled to protection under Section 19(2). The contention of the second accused was that he was not a licenced dealer in the sense that licence was not produced. Secondly, it was contended that there is no evidence to show that A1 has properly stored and kept the food articles in the same state as he has purchased (Section 19(2)(b)).
4. The Chief Judicial Magistrate after considering the evidence found that the food article was adulterated. Al has purchased the same from A2. A2 is a licenced wholesale dealer and A1 is entitled to the benefit under Section 19(2). A2 is also entitled to be acquitted as mandatory condition under Section 19(7) was violated. The Judicial Magistrate while acquitting the accused on the above ground mainly relied on the decision of the Supreme Court in Ram Labhaya v. Municipal Corporation of Delhi and Anr. (AIR 1974 SC 789). The Supreme Court in the above decision held as follows:
“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 sub-section, 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 cooperate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses….”.
The Supreme Court in the above decision also referred to its earlier decision in Babu Lal Hargovindas v. State of Gujarat (AIR 1971 SC 1277) wherein it was held that non-compliance of Section 10(7) would not vitiate the trial as the Food Inspector is not an accomplice and if his evidence is believed the conviction can be sustained. The weight to be attached to the evidence of the Food Inspector will depend upon the circumstances of each case. (See Food Inspector v. Joy (1982 KLT 219 para 23)). A Full Bench of this Court in Food Inspector v. Prabhakaran (1982 KLT 809 (FB)) after considering the above Supreme Court decisions held that eventhough the Food Inspector is bound to obey the directives of Section 10(7) the above Section is not mandatory in the sense that non-compliance of the above will vitiate the prosecution. Justice K.K. Mathew in Food Inspector v. Padmanabhan Nair, (1967 KLT 825) held that Section 10(7) is evidentiary in character. A learned Single Judge of this Court in Food Inspector v. K. Subair, 2002 (2) KLJ 76 = 2002 (3) KLT SN 36 Case No. 50) acquitted the accused on the ground that Section 10(7) was not complied with, but Full Bench decision of this Court in Prabhakaran’s case was not seen pointed out by the prosecution.
5. Now we will look into Section 10(7) of the Prevention of Food Adulteration Act, which reads as follows:
“10. Powers of Food Inspectors:-
(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 call one or more persons to be present at the time when such action is taken and take his or their signatures.
…..”.
In the section the word ‘independent’ is not used. The only obligation is to call one or more persons to be present at the time when sample is taken and take his or their signatures. The intention of the above section is to ensure the regularity of the action of the Food Inspector and to confirm that the sample was taken from the very same shop. If a peon or a subordinate of the Food Inspector who comes with the Food Inspector stand as a witness there is likelihood of tampering. Therefore, it was held that independent person should be called. Here PW2 was called to sign the mahazar and he was an employee of the shop. He was not a subordinate to the Food Inspector. There are plethora of decisions wherein it is stated that persons called as witness could not be subordinate to the Food Inspector. It was also held that if a doctor accompanied the Food Inspector, the doctor can be called as witness as he is not a subordinate to the Food Inspector. Here PW2 was an employee of A1 and A1 has no dispute that sample was not taken from his shop. In fact, A1 during his examination also admitted that sample was taken from his shop by the Food Inspector and there is no dispute. In such circumstances, we are of the opinion that mandate of Section 10(7) is satisfied here. We also make it clear that it is obligatory to the Food Inspector to call witnesses as mentioned in Section 10(7) who are not subordinate to him and as held by the Supreme Court, the obligation is to call the witness and if he refused to come and sign, that will not make the entire process faulty. But, when the question of sampling is disputed, presence of independent witnesses corroborating the evidence of Food Inspector becomes important. It is obligatory on the part of the Food Inspector to comply with Section 10(7) bat its non-compliance will not vitiate the proceedings if regularity of the action of the Food Inspector in sampling the food article is otherwise proved. In fact, in this case, sampling from his shop was not at all disputed by A1. As far as Food Inspector is connected, employee of R1 is an independent witness.
6. We answer the question referred as follows:
1) Section 10(7) is enacted as a safeguard against any possible allegation of excesses, irregularity or unfairness on the part of the Food Inspector. This being the object, it is in the interest of the prosecuting authority to comply with provisions of Section 10(7), Statute cast a duty on the Food Inspector to call witness.
2) The object of calling persons to witness action is to assure fairness in the action, the persons called must be independent and not suspectable to the influence of the Food Inspector. 3) The obligation which Section 10(7)casts on the Food Inspector is only to "call" one or more persons to be present when he takes action. In the case where the Food Inspector did call persons to witness the taking of sample and none was willing to co-operate, the prosecution is relieved of its obligation to cite independent witnesses. He has no means to enforce the presence of persons called to witness the action. 4) An employee of the shop from where sample is taken can be called as a witness under Section 10(7) and it cannot be stated without any further evidence that he is influenced by the Food Inspector or he is not an independent witness as far as Food Inspector is concerned. There is no hard and fast rule as to what classes of persons will be independent. It is at the same time too much to assume that because the Food Inspector can take action under the Act against persons dealing with articles of food all persons connected with the trade in articles of food or an employee of the shop would be dependent upon the Food Inspector. 5) Section 10(7) of the Act is not mandatory in the sense that non-compliance of the same by itself will not vitiate the proceedings in all cases. If from the totality of the evidence regularity of the action in taking sample from a particular shop by the Food Inspector is proved, proceedings can be sustained even if Section 10(7) is not complied with. Section 10(7) is directory and it puts an obligation on the Food Inspector to comply with the directives in the Section. If it is not complied with, the burden will be very heavy on the prosecution to prove the regularity of the action of the Food Inspector in taking sample.
Here in this case employee of the shop who was called as a witness is an independent witness as far as Food Inspector is concerned. No serious infirmities were also raised by the accused regarding sampling or regularity of the action of the Food Inspector. The decision in Food Inspector v. K. Subair (supra) in so far as it holds that employee of the shop from where sample is taken is not an independent witness and mere violation of Section 10(7) ipso facto vitiate prosecution as section is mandatory, is overruled. In this case Section 10(7) was actually complied with. Hence acquittal of the accused for non-compliance of Section 10(7) is wrong and we set aside that finding.
7. For understanding the defence of A1 is that he is entitled to the benefit under Section 19(2) and the contention of the second accused that eventhough A1 had purchased it from him, he is not a licenced dealer and Section 19(2)(b) was not satisfied, we are extracting Section 19 of the Act as follows:
19. Defence which may or may not be allowed in prosecutions under this Act:-
(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves-
(a) that he purchased the article of food-
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer; with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. . (3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence".
8. It is true that since A1 and A2 were acquitted, they did not file appeal. But being the first appeal we have got a duty to reappraise the evidence and consider their contentions also. The contention of A2 that he is not a licenced dealer cannot be accepted. Without licence he cannot conduct wholesale business in food articles. Rule 50 of the Prevention of Food Adulteration Rules, 1955 provides that “no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food except under a licence”. It has also come out in evidence that he has applied for renewal of his licence. Therefore, he had licence. DW2 Municipal Commissioner has deposed that A2 has paid the fees for renewal. When renewal fee is accepted automatically it is deemed that licence is renewed. Proviso to Rule 51 says as follows:
“51. Duration of licences,-….
Provided that if application for a fresh licence is made before the expiry of the period of validity of the licence, the licence shall continue to be in force until orders are passed on the application.”
Therefore, the Chief Judicial Magistrate correctly found that A2 was a licenced dealer.
9. Ext. D1 is the bill which shows that peas dhal was purchased from A2. A1 also produced his account book to show that he has purchased peas dhal from A2. He has produced Ext. D1 bill at the time of sampling itself to show that he purchased the above dhal from the shop of A2 on 12.11.1987 which was proof available in DL Register. During cross examination also there was no case for A2 that he did not sell the article by Ext. D2. The finding by the Chief Judicial Magistrate that Al had purchased peas dhal from A2 cannot be discarded. It is a finding of fact based on evidence. Once it is proved that bill was issued in respect of the sale of food article in question by A2, it is. deemed that he has given warranty regarding the quality of food article even if no separate warranty in prescribed form is given. This was made clear by inserting proviso to Section 14 by Amendment Act 34 of 1976. Proviso to Section 14 reads as follows:
“14. Manufacturers, distributors and dealers to give warranty:-
Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this Section”.
10. To get the benefit of Section 19(2) to a retailer it is not enough that he purchased the food articles from a licensed dealer with warranty, he must also prove that ingredients of Section 19(2)(b) are also satisfied. The above ingredients are:
1) The article of food while in possession was properly stored; 2) He sold it under the same state as he purchased it. 11. A Division Bench of this Court (one of us, Justice Koshy, was a party) in V.B. Aboo v. The Food Inspector, Quilandy (Crl.R.R No. 1031 of 1994) held as follows:
“… A vendor who opens the container of food article and sells it in retail will not lose the protection under Section 19(2) of the Prevention of Food Adulteration Act, 1954 merely because he opens the bulk container and sells it in retail provided he proves that he purchased the article of food with warranty from a duly licensed manufacturer, distributor or dealer and the article of food was properly stored while in his possession and that he sold it in the same state as he purchased it.
The burden is on the accused who takes the defence that he is entitled to the protection of Section 19(2) of the Prevention of Food Adulteration Act, 1954″.
Eventhough A1 as DW3 deposed that he has purchased the food grains in question from A2 there is no whisper in his evidence that he stored it properly and he kept it in the same condition as he purchased. Therefore, Section 19(2)(b) is not satisfied in this case. Merely because A1 opened the container and sold the goods in retail, he will not lose the protection under Section 19(2). In Andhra Pradesh Grain and Seed Merchants Association and Ors. v. Union of India and Anr., AIR 1971 SC 2346, the Supreme Court held that a vendor who opens a container of a branded article and sells it in retail does not lose the protection under Section 19(2) merely because he opens the container and sells it in retail. The Apex Court further held as follows:
“8……. By Sub-section (2) of Section 19, even in respect of the absolute offence, the Parliament has enacted that on proof of certain facts, criminal liability will be excluded. Thereby a vendor is not deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the articles of food from a duly licensed manufacturer, distributor or dealer in a case where a licence is prescribed for the sale thereof, and in any other case from any manufacturer, distributor or dealer with a written warranty in the prescribed form, provided the article of food while in his possession was properly stored and that he sold it in the same state as he purchased its. The argument of counsel for the petitioners that the provision that a retail seller who opens a container of a branded article of food loses even the limited protection under Section 19(2) is without substance. Clause (b) of Sub-section (2)of Section 19does not provide, nor does it imply, that if the container of a branded article is opened, the article of food ceases to be in the same state in which the vendor purchased it. If the article of food is sold in the same condition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of Sub-section (2) of Section 19 merely because he opened the container.”
See also the decision in Food Inspector v. Shoukath Ali (1989 (1) KLT 323).
12. Eventhough a retailer is also entitled to the benefit of Section 19(2), to get the benefit it is his bounden duty to prove that he properly stored the food articles and kept it in the same condition as he purchased in view of Section 19(2)(b). Neither the first accused DW1 nor his employee PW2 deposed or proved that the article was properly stored and kept in the same condition as at the time of purchase by A1. Since A1 has not proved the same, he will not be entitled to the benefit of Section 19(2). Since there is possibility that Al can also adulterate the food grain before sample was taken and Al has not proved that he kept the food article in the same condition as he purchased it, A2, the whole sale dealer, cannot be convicted. We uphold the acquittal of A2 though for different reasons.
13. We may now consider the charge framed by the Court and the complaint filed before the Magistrate by the Food Inspector. Accused is liable to answer and defend his case considering the charges levelled against him. The charge was framed. on 18.9.1989. Ext. P13 certificate of the Central Food Laboratory is dated 9.6.1988. It is settled law that when report of the Public Health Officer is doubted and sent for further examination by the Central Food Laboratory, certificate issued by the Director, Central Food Laboratory will supersede the earlier certificate of the Public Analyst and the Court can rely only on the certificate issued from the Central Food Laboratory. Section 13(3) of the Act reads as follows:
“13. Report of Public Analyst:-
(3) The certificate issued by the Director of the Central Food Laboratory under Sub-section (2B) shall supersede the report given by the Public Analyst under Sub-section (1)”.
But charge is based on Ext. P12 certificate which was superseded by Ext. P13. The charge sheet was framed by the Court alleging that the sample contained 16.6% Kesari dhal. In Ext. P12 there is no allegation that it contains 16.6% Kesari dhal. Therefore, it creates a genuine doubt whether Ext. P12 and P13 relate the very same sample that was taken from the shop of the accused or whether Ext: P12 and P13 were considered by the Magistrate or prosecution at the time of framing charges.
There is material difference. The charge sheet issued by the Court is not based on Ext. P12 certificate of the Public Analyst or Ext. P13 certificate issued by the Director of Central Food Laboratory which superseded Ext. P12 certificate of the Public Analyst eventhough there is reference to analysis of the sample by the Public Analyst in the charge sheet. Further, we note that the incident occurred in 1988. In view of the defective charges made it is not proper for us to remand the matter after a period of 14 years. It was also argued that Al is a poor small retailer. He purchased the food grains from A2 and sold it in retail. He has no machinery to check whether the purchased food article from A2 is adulterated or not. Because of his lack of knowledge, he did not specifically depose that the food article was not stored properly and kept it in the same condition as he purchased it and he is entitled to the benefit of doubt. We have already held that he is not entitled to the benefit of Section 19(2) as he did not satisfy the ingredients of Section 19(2)(b). But in this case charge framed against him is defective. In the above circumstances, we are not inclined to interfere with the acquittal of the accused even though for different reasons.
The appeal against order of acquittal is dismissed for the reasons stated in the judgment.
