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PETITIONER: RAM LABHAYA

       Vs.

RESPONDENT: MUNICIPAL CORORATION OF DELHI AND ANR.

DATE OF JUDGMENT26/02/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH SARKARIA, RANJIT SINGH

CITATION:  1974 AIR  789            1974 SCR  (3) 348  1974 SCC  (4) 491

ACT: Prevention of Food Adulteration Act,  1954-S. 10(7)  whether mandatory or directory-Scope of.

HEADNOTE: The appellant was charged with an offence under s. 16(7)  of the   Prevention   of  Food  Adulteration  Act,   1954   for adulterating foreign starches with haldi.  He was  acquitted by  the  Magistrate on the ground that the  sample  was  not taken by the Food Inspector in the presence, of  independent witnesses.  leading  to non-compliance  with  the  mandatory provisions of s. 10(7) of the Act.  The High Court set aside the order of acquittal and held that the provisions of s.   10(7) of the Act were directory and not mandatory. Section  10(7)  of  the Act provides that  :where  the  Food Inspector  takes  any’  action  under  any  of  the  clauses mentioned  therein he shall call one or more persons  to  be present at the time when such action is taker. and take  his or their signatures.  By the amendment of 1964 the words "as far  as possible" which were in the unamended  section  were deleted. It  was contended that s. 10(7) was mandatory and since  the Food  Inspector  did not take a sample in  the  presence  of independent   persons  as  required  by  the   section   its contravention would vitiate the conviction.  On appeal to this Court, confirming the conviction  imposed by the High Court, HELD : There ran be no doubt that "one or more persons" must mean  one  or  more independent persons.   In  view  of  the legislative  history of s. 10(7) 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.  It is  not, however, correct to say that regardless of all circumstances non-presence  of  one  or more independent  persons  at  the relevant  time would vitiate the trial or  conviction.   The obligation which s. 10(7) casts on the Food Inspector is  to "call"  one  or  more persons to be present  when  he  takes action. [472 D-F] In  the  instant  case  the Food  Inspector  did.  call  the neighbouring  shopkeepers  to  witness  the  taking  of  the

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sample.   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 Food Inspector was  unable  to secure   the  presence  of  independent  persons  and   was, therefore  driven  to take a sample in the presence  of  the members of this staff only.  It is easy enough to understand that  shopkeepers might feel bound by fraternal ties but  no court can countenance a conspiracy to keep out , independent witnesses in a bid to defeat the working of laws. [472 F-473 B] Babulal Hargovindas v. State of Gujarat [1971] Supp.  S.C.R. 53, followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 192  of 1970. Appeal  by special leave from the judgment and  order  dated the  18th August, 1970 of the Delhi High Court  in  Criminal Appeal No. 19 of 1966. M. K. Ramamurthi     and Vineet Kumar,for the appellant. 471 Hardayal  Hardy.  B. P. Maheshwari and N. K. fain,  for  the respondent. The Judgment of the Court was delivered by CHANDRACHUD,  J.  On July 31, 1965 a Food Inspector  of  the Municipal  corporation of Delhi took a sample of Haldi  from the  appellant’s  shop on More Sarai Road.   On  the  Public Analyst certifying that the Haldi contained foreign starches to  the extent of 25 per cent the appellant was put  up  for trial  before  the learned Magistrate, First  Class,  Delhi, under  section 7 read with section 16 of the  Prevention  of Food   Adulteration  Act,  1954.   The  learned   Magistrate acquitted  the appellant on the sole ground that the  sample if Haldi was not taken by the Food Inspector in the presence of independent witnesses, leading to non-compliance with the "mandatory  Provisions"’  of section 10(7 of  the  Act.  The order of acquittal was set aside in appeal by the High Court Delhi which following its own earlier judgment tookHigh Court of Delhi which following its own earlier judgment took theview that the  Provisions  of section 10(7) of the  Act are directory andnot  mandatory. This appeal  by  special leave  is  directed against the judgment of the  High  Court convicting  the  appellant  of the  offence  of  selling  an adulterated  article  of food and sentencing him to  him  to suffer imprisonment for six months It  is urged on behalf of the appellant that the  report  of the Public, Analyst does not say that the presence of 25 per cent of starch affects injuriously the nature, substance  or quality of Haldi and therefore the sample taken by the  Food Inspector  cannot  be  said to  be  adulterated  within  the meaning  of section 2(1) (b) of the Act.  The, short  answer to this contention is that Rule 44 of the Prevention of Food Adulteration Rules, 1955 provides that no person shall  sell turmeric "containing any foreign substance".  The report  of the Public Analyst shows that the same contained not natural but  "foreign starches".  Section 7(v) of the Act.  provides that   no  person  shall  sell  any  article  of   food   in contravention  of  any provision of the Act or of  any  rule made  thereunder.   The  sale of  Haldi  containing  foreign starch is in contravention of rule 44(h) and is therefore an offence under section 7(v) of the Act. Great  reliance was placed by counsel for the  appellant  on

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the circum_ stance that as required by section 10(7) of  the Act  the  Food  Inspector did not take  the  sample  in  the presence  of independent persons.  It is urged that  section 16(7)  is mandatory and its contravention would vitiate  the conviction. Section 10(7) provides:               "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," 472 There  can be no doubt that "one or more persons" must  mean one or more independent persons.  The legislative history of sub-section  (7) further shows that at the least,  the  Food Inspector  ought  to try and secure the presence of  one  or more  independent persons when he takes action under any  of the  provisions mentioned in the subsection.  Prior  to  its amendment by Act XLIX of 1964, subsection (7) ran thus               "Where  the  Food Inspector takes  any  action               under  clause (a) of sub-section (1)......  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." By  the  amendment of 1964, the words "as far  as  possible" were deleted.  This deletion naturally lends plausibility to the  contention  that the provisions of  section  10(7)  are mandatory  and  it  has been so  held   in  Food  Inspector, Corporation of Calicut v. Vincent and Anr.(1) and ’Ram Sarup Tara Chand v. The State.(2) 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 shopkeepers to witness the taking of the sample but none was willing to co-operate.  He could not  certainly compel   their   presence.   In  such   circumstances,   the prosecution   was  relieved  of  its  obligation   to   cite independent witnesses.  In Babu Lal Hargovindas v. State  of Gujarat(3)  it  was held by this Court after  noticing  that section  10(7) was amended in 1964, that noncompliance  with it would not vitiate the trial and since the Food  Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction.  The Court observed that this ought not to be understood as minimising the  need to comply with the salutary provision in section 10(7) which was  enacted as a safeguard against possible allegations  of excesses or unfair practices by the Food Inspector. (1)  I.L.R. [1966] (2) Kerala 551. (2)  A.I.R. 1965 Punjab 366. (3)  [1971] Supp.  S.C.R. 53,  473 As  stated earlier the Food Inspector was unable  to  secure the presence of independent persons and was therefore driven

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to  take  the sample in the presence of the members  of  his staff   only.   It  is  easy  enough  to   understand   that shopkeepers  may feel bound by fraternal ties but  no  court can  countenance  a  conspiracy  to  keep  out   independent witnesses in a bid to defeat the working of laws. However,   we  are  not  disposed,  while   confirming   the conviction of the appellant, to uphold the sentence  imposed by  the.   High  Court  Rule 5 of  the  Prevention  of  Food Adulteration Rules, 1955 provides that standards of  quality of  the various articles of food specified in Appendix B  to the  Rules  must  be  as defined  in  that  Appendix.   Rule A.05.20.01 which came into, force on July 8, 1968 shows that Haldi Powder may contain not more than 60 per cent of starch by weight.  It is true that this Rule came into force  after the date of the offence in question, but the circumstance is not without relevance on the question of sentence.   Counsel for  the  Corporation did not also press for  a  substantive sentence.   In the circumstances, a sentence of fine of  Rs. 1000  in  place of the minimum sentence  prescribed  by  law would  meet the requirements of the case.  We  are  informed that the appellant has already paid the fine. We  therefore uphold the order of conviction but modify  the sentence as stated above. P.B.R. 2-M 45 Sup.  CI/75 474