# RAM LABHAYA v. MUNICIPAL CORORATION OF DELHI AND ANR

- **Citation:** [1974] 3 S.C.R. 470
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Bench:** M. H. Beg, Y. V. Chandrachud, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-labhaya-v-municipal-cororation-of-delhi-and-anr-6086
- **Pages:** 4

## Headnote

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 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-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 prosecution 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.

## Text

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 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-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 prosecution 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 responB
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 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 of 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 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. 1000.
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(i) (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
sample 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 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 independen~ persons. It is
urged that section 10(7) is mandatory and its contravention would
vitiate the conviction.
Section !Q(7) provides :
"Where the food inspector takes any action under clause
(a) of sub-section (I), 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
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
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, sub-section (7)
ran thus :
-..
"Where the Food Inspector takes any action under clause
(a) of sub-section(!) ...... 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
he~ in Food Inspector, Corporation of Calicut v. Vincent and Anr.(1>
and Ram Sarup Tara Chand v. The Stale.(')
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 Foocl 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 qr 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 tqat 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(')
it was held by this Court after noticing that section 10(7) was
amended in 1964, that non-compliance with it would not vitiate the
trial and since the Food Inspector was not in the position of an
accompJice 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.LR. [19661 (2) Kerala 551.
(2) A.LR. 1965 Punjab ~
(3) [1971] Supp. S.C.R. 53,
A
B
c
D
E
F
G
H
A
B
c
D
E
RAM LABHAYA v .. MUNIC. CORP. OF DELHI { Chandrachud, J.) 4 7 3
As stated earlier the Food Inspector was unable to secure the presence of independent persons and was therefore driven 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 independont
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 Rn!e
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 th~ question of sentence. Counsel for the Corporation did not also press for a
substantive sentence. In the circumstances, a s~ntence 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.
PJ3.R.
2-M 45 Sup. Cl/75