J.P. Semwal, J.
1. This Criminal Appeal is against the order of acquittal dated 18-4-1977 passed by the Metropolitan Magistrate (Corporation) Kanpur, acquitting the respondent-accused under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as Act).
2. The respondent-accused Mohammad Wasim was prosecuted under Section 7/16 of the Act, for selling and exposing for sale adulterated groundnut oil on 19-9-1974 at about 1.30 p.m., in his shop on premises No. 73/33, Collector Ganj, Kanpur.
3. The lower Court has not set out the facts of the case, hence it is necessary to state the facts of the case.
4. Shri B. L. Shukla was Food Inspector, Nagar Mahapalika Kanpur on 19-9-1974, and on that day at about 1.30 p.m., he found the respondent-accused, selling and exposing for sale of groundnut oil in his aforesaid shop. He took 375 grams groundnut oil as sample from a tin which contained 7 kilograms of groundnut oil, paid Rs. 3.75 to the accused and obtained receipt Exhibit Ka-1. He also prepared spot note, vide exhibit Ka-3, mentioning the stock position of the shop therein. He divided the sample oil into three equal parts and sealed them in three dry phials and delivered one part to the accused along with notice in Form VI, vide exhibit Ka-2. The remaining two parts of sample were deposited on the same by him in the office of the Health Officer, from where, one part of sample was sent to the Public Analyst, Government of U.P. The Public Analyst by his report dated 5-11-1974, vide exhibit Ka-4, found the sample adulterated as free fatty acide (as oleic acide) exceeded the maximum permissible limit by 1.2 per cent. The Food Inspector Shri B. L. Shukla gave copy of his report to the accused on 22-4-1975. The Nagar Swasthya Adhikari accorded sanction to prosecute the accused under Section 7/16 of the Act and filed complaint, exhibit Ka-6.
5. The prosecution in support of its case j examined the Food Inspector Shri B. L. Shukla as P. W. 1 and relied on the documents Exhibits Ka-1 to Ka-6. The respondent-accused denied the charge under Section 7/16 of the Act and pleaded not guilty. In his statement under Section 313, Cr.P.C., he stated that he was partner of Universal Oil Store and he was neither selling oil nor it was exposed for sale. He admitted that the Food Inspector took sample of groundnut oil from him as alleged by the prosecution but stated that the price was not paid to him. According to him, his signatures on the receipt were obtained by the police under threat. He admitted that the Food Inspector had divided the sample into three parts and put them in three dry phials, sealed them properly in his presence and gave one phial and notice to him. He, however, stated that there was empty space of 2- 21/2 inches in the phials.
6. In defence, the accused examined Shri S. Mookerji, Retired Chief Chemist Eg-mark Laboratory, Government of India, as D.W. 1. According to this witness, there was empty space of two inches in the sample phial No. 997/74 (which was sent to Public Analyst for analysis) and there would be much increase in acidity if sample is analysed after 46 days. He asserted that if there was empty space in the phial, it was quite natural for acidity to increase due to presence of air or Oxygen in it which process is known as auto-oxidation.
7. The learned Magistrate after examining the evidence on record found the accused not guilty and acquitted him.
8. Aggrieved by the order of acquittal, the appellant has preferred this appeal.
9. I have heard the learned counsel for the parties and have carefully considered the submissions made before me.
10. The lower Court has based its order of acquittal on two grounds; firstly, that the mandatory provisions of Section 10(7) of the Act have not been complied with by the Food Inspector as he did not make any effort to call public witness; secondly, the delay in analysis coupled with the fact that sample phial was empty by about 11/2 inches when sealed, might have contributed to the increase of acidity in sample oil to the extent of 1.2 per cent. The lower Court held that the accused deserved benefit of doubt in this case. The appellant has challenged the lower Court's findings on the ground that it is perverse, unreasonable and against weight of evidence on record. The challenge is on two counts; firstly, that there was no delay in the analysis of sample and there was nothing to show that the sample phial which was kept empty by 11/2 inches when sealed might have contributed to the increase of acidity to the extent of 1.2 per cent. Secondly, the facts being admitted, non-compliance of Section 10(7) of the Act in not calling other witnesses would not be fatal in the present case.
11. No doubt, in an appeal against acquittal, the appellate Court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down by the Privy Council and Hon'ble Supreme Court afford a correct guide for the appellate Court's approach to a case in disposing of an appeal against acquittal. In order to succeed, the appellant has to show that the trial Court has given verdict of acquittal on untenable reasons and in disregard of evidence, For an appeal against acquittal to succeed, there must be substantial and compelling reasons for the appellate Court to come to conclusion different from that of the trial Court. It is settled view that if in an appeal against acquittal both the views, namely, one leading to conviction and other to acquittal are reasonably possible, the verdict of acquittal is not to be disturbed. According to a large volume of case law on the subject, appeals against acquittal are to be judged by standard different from that applicable to those against conviction see AIR 1983 SC 360 : (1983 Cri LJ 692 (2)). In an appeal against acquittal, it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the Court below was wrong. See AIR 1955 SC 216 : (1955 Cri LJ 572). The Court of appeal will interfere only if it is proved without any doubt not only that the accused person is guilty but that he has been acquitted on unreasonable ground. The Supreme Court has held that the reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible, the appellate Court should be slow in interfering with the judgment of the trial Court even if it is possible for it to take a different view after a process of laborious reasoning AIR 1983 SC 810 : (1983 Cri LJ 1105).
12. In the present case, it is admitted to the prosecution witness Shri B.L. Shukla, who had taken sample, that the phial was empty to the extent of 11/2 inches. The capacity of the phial, according to him, was 200 grams and he had only filled 125 grams oil in that phial. The defence witness Shri S. Mookerji D.W. 1, gave his statement after seeing the sample phial No. 997/74 and categorically deposed that it was empty to the extent of about two inches. According to him it was quite natural for acidity to increase due to presence of air or oxygen in the empty space by process of auto-oxidation. He also deposed that if sample is sent for analysis after 46 days, there will be much increase in the acidity: This evidence of defence has remained unrebutted and uncontroverted. Shri B. L. Shukla, Food Inspector P.W. 1 in his cross-examination, showed his ignorance about the presence of air or oxygen in the empty space of phials. In his further cross-examination, he admitted that acidity increases with the pasage of time. The phial in which sample oil was kept, had a capacity of 200 grams and it contained only 125 grams of oil. There was, thus, sufficient empty space in the phial. It is no body's case that empty space was vacuum. The defence witness Shri S. Mookerji has deposed that the empty space in phial was two inches and due to presence of air or oxygen, acidity increases automatically due to process of auto-oxidation. The sample phial which had empty space thus contained volume of oxygen therein. The sample was taken on 19-9-1974 and the Public Analyst gave his report of analysis-Exhibit Ka-4, on 5-11-1974 which was after more than 46 days of the taking of the sample.
13. Shri S. Mookerji, D.W. 1, has categorically deposed that if the analysis of sample is made after 46 days, there would be. much increase in acidity. There is nothing in his cross-examination to render his testimony incredible. The groundnut oil like any other oil is subject to deterioration in the process of which the fat content is likely to increase. At any rate, it cannot be asserted in the absence of evidence of the prosecution that the excess of acidity in this case, which in itself is not appreciable over the 3 per cent fatty contents permissible under the rules framed under the Act might not have been due to empty space in the sample phial and due to the delay in analysing the sample. The prosecution has not attributed any other reasons for the excess of acidity in the sample oil. It was for the prosecution to establish their case beyond doubt, and if there was empty space in the sample phial and there was delay of 46 days in analysing the sample, it was for the prosecution to satisfy the Court that it had no relation to the incriminating excess percentage of the fatty content in the oil. The lower Court has given benefit of doubt to the accuseed respondent after appreciating the evidence on record. I do not find that the order of acquittal is perverse and unreasonable.
14. Regarding that next ground of challenge, the learned counsel for the appellant argued that there was difference of opinion among High Courts, regarding mandatory nature of Section 10(7) of the Act. One view is that it is mandatory, other is that it is directory. The contention of the learned counsel was that non-compliance in calling public witnesses would not be fatal in the present case on the admitted facts. This contention appears to have force. The Supreme Court has examined the State of law on the subject in the case of Ram Lubhaya v. Muncipal Corporation of Delhi, reported in 1975 FAJ 253: (1974 Cri LJ 672) (SC) and has held at page 673:
Prior to the amendment of Sub-section (7) in 1964 it contained the words 'as far as possible call not less than two persons.' But 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. While taking action under any of the provisions mentioned in Sub-section (7) of Section 10, the Food Inspector must call one or more independent persons to be present at the time when such action is taken. However, regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would not 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 non-compliance with it would not, therefore, vitiate the trial and since the Food Inspector is not in the position of an accomplice his evidence alone if believed can sustain the conviction.
15. It is, thus, quite clear that under Section 10(7) of the Act, the Food Inspector is enjoined to call one or more persons to be present at the time when sample of any article is taken.
16. Having regard to the language implied under Section 10(7) of the Act, there should not be difficulty in holding that the requirement of Sub-section (7) of Section 10 of the Act, may be regarded as mandatory, but this itself is not sufficient. As regards the directory provisions, in case of its violation, Court takes no notice of it but when a mandatory provision is violated, further question that requires to be determined is whether the violation of the mandatory provision justifies the total rejection of the seizure and the action taken by the Food Inspector. Mere violation or failure to comply with the aforesaid provisions would not, by itself, affect the legality or validity of the act of the Food Inspector concerned. The objective of Section 10(7) of the Act is to ensure that actual or genuine transaction of sale of the sample and its formalities are proved by the evidence, which is above board and satisfactory. In the present case, there are two witnesses at the time of taking of sample, who have also put in their signature on the documents-Exhibit Ka-1, Ka-2 and Ka-3. No doubt, in his cross-examination, the Food Inspector, Shri B. L. Shukla has deposed that these two witnesses were subordinates, but that by itself, is not sufficient to presume that they were under the influence of the Food Inspector.
17. It has been held in case of Yogeshwar v. State of Rajasthan, 1977 FAJ 113 that:
What Sub-section (7) of Section 10 of the Act requires is that a Food Inspector while taking sample should call one or more persons to be present when the sample is taken and there is no doubt that such person or persons should be independent and disinterested. It was also held that the Driver (witness in question) was, no doubt, employee with the Municipal Board, but on that ground alone there is no reason to hold he was not independent witness.
It has been held in case of Tiloram v. State, 1978 FAJ 118 : (1967 Cri LJ 1295) (Delhi) (page 681) that:
the object of enacting Section 10(7) is really to ensure that the particular sample is taken from the accused. I am disinclined, as present advised, to hold that Section 10(7) must be construed to mean that persons who are called should never belong to department meant for preventing food adulteration.
18. The object of enacting Section 10(7) of the Act is clearly to ensure that the particular sample is taken from the accused. The object is to keep the act of taking sample above suspicion. The Food Inspector cannot be regarded as accomplice and his evidence does not necessarily require corroboration AIR 1971 SC 1277 : (1971 Cri LJ 1075). The compliance with Sub-section (7) of Section 10 of the Act is necessary only for satisfying the Court that requisite sample was taken, as alleged. Court's scrutiny of such compliance becomes unnecessary when the accused admits taking and sealing of sample and delivery of one such sample to him (See 1973 Cri LJ 301).
19. The Food Inspector's statement has remained unshaken under cross-examination. It cannot be inferred from the record that the Food Inspector could have some oblique or dishonest motive in not complying with Section 10(7) of the Act. The statement of the Inspector Shri B. L. Shukla, P.W. 1, regarding actual and genuine prosecution of sale having taken place is corroborated strongly by, the admission of the accused that sample was taken from him by the Food Inspector in his presence and divided the sample into three parts, and sealed them properly and gave one part of sample along with notice to him. The accused signed three documents, Exhibit Ka-1 receipt. Exhibit Ka-2 Form No. 6, and Exhibit Ka-3 -- Spot Note. These documents have also been signed by two witnesses. The accused has, nowhere, challenged his signatures on these documents. A suggestion was put to B. L. Shukla, P. W. 1, on behalf of the accused that the accused was not present at the time of taking sample which suggestion was denied by the Food Inspector. In his statement under Section 313, Cr. P.C. the accused clearly admitted that sample was taken in his presence and he was delivered a part of the sample. He, however, stated that price was not paid to him and his signatures were obtained by the police under threat. This plea of non-payment of price is palpably a false plea, which cannot be sustained. Though the Food Inspector has not explained as to why he was not able to obtain independent witnesses and to show to the Court that he made sincere efforts to obtain such witnesses, the. non-compliance of provisions of Section 7 or Section 10 of the Act, will not vitiate action of the Food Inspector, unless the persons from whom the sample is taken, is prejudiced by the non-compliance. Section 10(7) of the Act, merely prescribes the procedure for taking the sample of the articles suspected to be adulterated, failure to comply with the provisions does not vitiate the taking of the sample or effect the validity of the prosecution See 1973 Chandigarh LR 578 Sukhram v. State of Haryana.
20. In the present case, merely because witnesses of locality were not present by itself is not sufficient to throw away the prosecution case. This omission is not fatal to the prosecution and the view taken by the learned Magistrate that non-compliance of Section 10(7) of the Act, hits the root of the case is wrong. At any rate, there is no reason to think that the Food Inspector and the witnesses were interested in falsely implicating the respondent accused. There is no material on record to justify the conclusion that they had any interest in getting the respondent accused prosecuted, nor there is any allegation that the Food Inspector had any interest to implicate the respondent falsely.
21. The accused had admitted the taking of sample by the Inspector in his presence and it is proved that the price was paid to him by the Food Inspector. Hence taking of sample by the Food Inspector cannot be said to be unfair or irregular. On the facts of the case, it cannot be held that inadvertent failure to comply with the provisions of Section 10(7) of the Act, would demolish the prosecution case. However, this will not affect the merits of the case because the chief question is whether the sample oil taken from the accused was adulterated or not. The lower court has given , benefit of doubt to the accused basing its finding on the evidence and this finding does not deserve to be disturbed, as already discussed above.
22. In the result, the appellant has not been able to show that the trial Court has given verdict of acquittal on untenable reasons and in disregard of the evidence.
23. For the reasons given above, the appeal fails and must be dismissed.
The appeal is hereby dismissed.