LexRAM LABHAYA versus MUNICIPAL CORORATION OF DELHI AND ANR.
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RAM LABHAYA v. MUNICIPAL CORORATION OF DELHI AND ANR. Februari: 26, 1974 [M. H. BEG, Y. V. CHANDRACHUD AND R. S. SARKARIA, JJ.] Prtven1ion of Food Adulteratioh Act, 1954-S. 10(7) whether mandatory or directory-Scope of. The appellant was charged with an offence 1;1ndCr s .. 16(7) of the ~reventio!1 of Food Adulteration .Aot~ 1954 for adulterating foreign starches with llaldt. 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 .Pr~visions of s. 10(7) of the A~~· The High Court set aside the order of acquittal and held that the prov1s1ons 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 ally of the clauses menti9ned therein he shall call one or more persons to be present at the time when ~uch 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. Jt was contended thats. 10(7) was mandatory and since the F09<1 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 can be no doubt that "one or more persons" nlust mean one or more independent persons. In view of the legislative history of i. 10(7) while takin~ action under any of the provisions mentioned in the sub-section, the food Inspector must call one or more inde~ndent persons to be present at the time when such action is taken. It is not, however, correct tO say that regardtc_ss of an circumstances non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obliga- tion 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-Fl I~ the instant case the Food Inspector did. call the neighbouring shopkeepers to witness the taking of the sample. None was willing to cooperate. He could not certainly compel their presence. In such circumstances the prose- cution was relieved of its obligation to cite independent witnesses. The Food Inspector WM unable to secure the presence of independent persons and was th~.refore, driven to take a sample in the presence of the members of his staff onIY. I~ is easy enough to understand that ·shopkeepers might feel bound by fraternal h~s but ~o cou.rt can countenance ?- conspiracy to keep out independent witnesses _in a bid to defeat the working of laws. f472 F-473 BJ Babula! Hargovindas v. State of Gujarat [1971] Supp. S.C.R. 53, followed. CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No 192 of 1970. . A B c D E F G Appeal by special leave from the judgment and order dated the 18th August, 1970 of the Delhi High Court in Criminal Appeal No. J 9 of H 1966. M. K. Ramamwthi and Vinee/ K11mar, for the appellant. RAM LABHAYA v. MUNIC CORP. OF DELHI (Chandrachud, /.) 4 71 A Hardaya! Hardy, B. P. Maheshwari and N. K. Jain, for the respon- B D E F G H dent. - The Judgment of the Court was delivered by OrANDRACHUD, J. On July 31, 1965 a Food Inspector of the Muriicipal Corporation of Delhi took a sample of Haldi from the appel- lant'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 of Haldi was not taken by the Food Inspector in the presence of independent witnesses, leading to non-com- pliance with the "mandatory provisions" of section 10(7) of the Act. The order of, acquittal was set aside in appeal by the High Court of Delhi which~following its own earlier judgment took the view that the provisions of section 10( 7) of the Act are directory and not mandatory. This appeal by special leave is directed againstlhe judgment of the High Court convicting the appellant of the offence of selling an adulterated article of food and sentencing. him to suffer imprisonment for six months and to pay a fine of Rs. 1
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