Madhya Pradesh High Court
Jagannath vs State Of Madhya Pradesh on 19 November, 1976
ORDER C.P. Sen, J.
1. The applicant has been eonvicted under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954, for preventing the Food Inspector from taking sample of milk and sentenced to simple imprisonment for six months and fine of Rs. 1000/-.
2. The facts found are that on 14-5-1974 when the applicant was taking 5 litres of milk in his kothi for sale, Food Inspector Sharma (P.W. 1) stopped the applicant, as he suspected the milk to be adulterated. The Food Inspector then asked the applicant to accompany him to the Municipal Office for taking sample. After reaching the office, the applicant quietiy bolted away, leaving Ids kothi of milk. This has been found proved from the statement of the Food Inspector duly corroborated by the panch Ramautar (P.W. 2). The defence was of denial and that he has been falsely implicated. The applicant further asserted that as his milk was found not adulterated, the Food Inspector asked Mm to go away, and so he left along with his Kothi. The defence has been disbelieved. The Courts below have held that thereby the applicant had prevented the Food Inspector from taking sample and committed offence under Section 16(1)(b) of The Act, For this purpose reliance has been placed on a single bench decision of this Court in Habib Khan v. State of M.P. 1971 MPLJ 883.
3. The only question to be determined is as to whether by leaving behind the kothi of milk without giving sample, the applicant prevented ike Food Inspector from taking sample.
4. Section 16(1)(b) provides that if a person prevents a Food Inspector from talking sample as authorised by this Act, he shall be punished with imprisonment and fine. Under Section 10, a Food Inspector has the power to take sample of any article at Food meant for sale, the Inspector may enter and inspect any place where any article of food is manufactured or stored for sale. He can even seize such article of food if it appears to be adulterated or misbranded. The Inspector has also power to break open the door or any package in which article of food is kept For these purposes the Inspector has been empowered to exercise powers of search and seizure of a police officer under the Code of Criminal Procedure. The Food Inspector may also exercise the powers of a police officer under Section 57 of the Code i.e. to arrest an offender if he refuses to disclose Ms name and residence. Section 11 prescribes the procedure to be followed by a Food Inspector while taking sample. He may either give notice, pay price and deliver one sample bottle to the vendor or if he declines to accept the same, then the Food Inspector is required to send intimation to this effect to the Public Analyst along with the sample for analysis. Therefore, the Food Inspector can follow one of the two modes, one where the vendor co-operates, the other when he refuses to co-operate. One prevents a Food Inspector from taking sample when he does something which makes it impossible for the Inspector to take the sample. So when the vendor simply bolts away bom the spot leaving behind the article of food, thereby he could not frustrate the Inspector from taking sample because the Inspector can still take sample in the absence of the vendor. Prevention consists in hindering a person or obstructing him from taking the particular action or doing the particular act. Prevention does not mean only obstruction by physical force but it may involve threat.
5. In Habib Khan v. State of M.P., 1971 MPLJ 883, a single Bench of this Court has held that when a milk vendor leaves behind a milk-can and bolts away, he commits of Fence under Section 16(1)(b). Reliance was placed on Municipal Board v. Jhamman Lat . The Allahabad case placed reliance oa Pablic Prosecutor v. Mumgesan . In the Madras case the vendor had poured his milkcam into a pan where milk was boiling and so it was held that it became impossible for the Food Inspector to take sample The Allahabad case also dissented from Bishan Dass v. State where it was held that refusal to give sample even on payment is not the same thing as prevention which need not have an dement of physical obstruction but involves some act which hinders an Inspector from taking a sample. In the Allahabad case it has been held that disappearance of the setter from the shop amounts to prevention, overt act on the part of accused is not necessary. The Division Bench proceeded on the assomption that only method of taking sample, by a Food Inspector is by payment of price and giving one sample bottle to the vendor. The Bench overlooked the alternative method of faking sample in the absence of the vendor, under Section 11(2) of the Act. Recently, mother Division Bench of the Allahabad High Court m Jaunpur Municipality v. Maluk Das, 1971 Cri LJ 705 (All) has distinguished the aforesaid Allahabad case and held the abservations therein to be obiter. In the latter case, reliance has been placed on Bishan Dass v. State (supra). The single Bench of this Court was of the opinion that if an unknown vendor bolts away without giving sample, the exercise of power of the Food Inspector under Section 10 would be defeated and so he thereby contravenes Section 16(1)(b) of the Act. With respect it may be pointed out that the Food Inspector has got necessary power to arrest under the Section if the vendor declines to disclose his indentity and the Inspector can take sample in his absent
6. In Jaunpur Municipality v. Maluk Das (1971 Cri LJ 705) (All) (Supra) it has been held:
Section 10 of the Act casts no duty or obligation on the vendor of an article of food to tender or offer the sample of the article to the Food Inspector. It confers, on the other hand, a power on the Food Inspector to take sample of any article of food from any person selling the same. Mere refusal to give sample or refusal to comply with the request of the Food Inspector to sell him the goods for sample cannot amount to preventing the Food Inspector from taking the sample under Section 10(1)(a) of the Act. Section 16(1)(b) of the Act does not make refusal to give sample an offence. It only makes a person Sable to penalty if he prevents a Food Inspector from taking the sample as authorised by the Act.
The word 'prevent", according to the Webster's New English Dictionary, as relevant for this case meatms "to frustrate, to deprivate of power of acting, operating, proceeding, etc; to ward off, circumvent, to binder the progress, or fulfilment." The phrase "prevent from" is used in sence of 'hindering'. Prevention under Section 16 must, therefore, necessarily imply the doing of some act on the part of the dealer which may make it inpossible for the Food Inspector to obtain the sample in exercise of his power under Section 10(1) of the Act. The dealer may prevent a sample being taken by destroying or otherwise making non-available the article of food itself or by making it impossible for the Food Inspector to take the sample by creating hindrance in his way. The dealer must be shown to have either prevented the Food Inspector from acting in the furtherance of his duty under Section 10(1)(a) of the Act or to have made the goods disappear so that the taking of sample be prevented before he can be made liable under Section 16(1)(b) of the Act.
In that case the vendor jefused to give sample but he did no overt art to preveat the Food Inspector to take sample.
7. In J.L. Roy v. Nepal Chandra, 1974 Cri LJ 576 (Gau), P..K. Goswami C.J. (as he then was) sitting in a Division Beach has held:
It is, therefore, clear that the Food Inspector can enter the shop under the Law and without any assistance from the shopkeeper or the person-in-charge, can take sample of any article of food stored for sale in the shop If in taking of sample which is authorised under the Act, for which no consent of the pesson-in-charge or the shopkeeper is necessary, he is prevented! from warying. Into effect the taking of the sample, offence under Section 16(1)(b) is committed. It is not necessary that when the Food Inspector wants to take sample that some force shall be used upon him by the shopkeeper or by the person-in-chairge. It is also not necessary that there should be a fracas over the taking of sample. The Food Inspectors are not usually accompanied by Police Officers, They are authorised under the Act and are conferred with only certain powers of the Police Officers in order to carry out their duties under the Act.
In that case the vendor did not allow the Food Inspector to take sample.
8. Therefore, here in the present case, the applicant did not prevent the Food Inspector from taking sample simply because he bolted away from the spot. The Food Inspector was free to take sample from the kothi of milk left behind by the applicant. Under the circumstances, the conviction and sentence passed against the applicant cannot be sustained.
9. With the result, the revision is allowed, the conviction and sentence of the applicant under Section 16(1)(b) of the Act are set aside and he is acquitted of the charge for which he has been convicted. Fine, if paid, be refunded.