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1. Appellant Rabari Teja Mohan has been convicted by the learned City Magistrate, 6th Court, Ahmedabad, in Criminal Case No. 90 of 1966 for the offence punishable under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954 37 of 1954) which will hereafter be referred to as "the Act". He has been sentenced on this count to suffer rigorous imprisonment for six months and to a fine of Rs. 1,000/- in default rigorous imprisonment for three months.

2. The appellant-accused was charged with having on or about the 5th day of August 1965 at 5-30 A.M. near Block No. 327 in Bapunagar, Rakhial at Ahmedabad, prevented Food Inspector Shri Mangulal C. Mehta from taking sample of milk from the appellant by throwing away the milk on the ground and thereby having committed an offence punishable under Section 16(1)(b) of the Act. The accused was tried on this charge which the learned City Magistrate has found to have been proved against him beyond reasonable doubt. It appears to be the prosecution case that on the morning of August 5, 1965, at about 5-20 A.M., Food Inspector Mehta accompanied by his peon P.W. 4 Mahmadmiya had gone to Bapunagar in Rakhiyal within the city of Ahmedabad. The accused was seen carrying two cans containing the milk with him on his cycle. He had measures with him. He was selling milk. The Food Inspector called two panchas P.Ws. vadilal and Ramkishore. The accused was then called, but he did not come. The Food Inspector then went to him. He asked him about the quality and the rate of the milk that he was selling. In reply, the accused stated that it was cow's milk. However, he did not express his willingness to sell the milk. The Food Inspector, but the accused said that he won't sell the milk. The food Inspector requested him to give the milk on payment of the price. However , instead of giving the milk, the accused threw away the milk. The Food Inspector then asked the name and the address of the accused. A panchnama was then drawn up which was read over to the panchas and was signed by the panchas. The Food Inspector who recorded the Panchnama also signed it. The Food Inspector then drafted the complaint and obtained the necessary sanction to prosecute the accused. After obtaining the sanction, he instituted the complaint against the accused. This, in brief, is the prosecution case as is revealed from the evidence of the Food Inspector P.W. No. 1 Mangulal Mehta, Ex. 2. In support of his evidence, panchnama Ex. 3 which was signed by the panchas in the presence of the Food Inspector was relied upon. The prosecution had also examined the two panch witnesses P.W. 2 Ramkisan Mulchand Ex. 8 and P.W. 3 Vadilal Mohanlal Ex. 9. Although the panchas admitted their presence and the factum of the panchnama having been signed by them, they did not support the prosecution case in all aspects, and it appears that they were treated as hostile witnesses. The prosecution also relied upon the evidence of the peon P.W. 4 Mahmadmiya Mohmad Afzal Ex. 10, who supported the evidence of the Food Inspector. On this evidence, the learned City Magistrate has accepted the prosecution case as against the accused and convicted and sentenced him as aforesaid.

7. Mr. Desai has leaned heavily upon the provision in Section 10(1)(a)(i) of the Act. In Mr. Desai's submission, having regard to the charge, the complaint and the tenor of examination of the accused under Section 342 of the Code of Criminal Procedure, the question of taking a sample of an article of food from persons filing in the characters (ii) and (iii) of clause (a) of sub-section (1) of Section 10 of the Act does not arise in the case. Mr. Desai's submission was that the charge did not specifically relate to the Food Inspector taking the sample while the accused was selling the milk. There is no merit in this submission. The charge which I have set out earlier is broad-based and is not confined to the taking of the sample of milk from a person filling in any particular character. The charge, it may be remembered, was that the accused prevented the Food Inspector from taking sample of the milk from him by throwing away the milk on the ground and thereby committed an offence punishable under Section 16(1)(b) of the Act. It is true that the evidence of the Food Inspector was that he had seen the accused selling the milk and he does not in terms, refer to conveying it. But the evidence further is that, at the material time, the accused had two cans containing milk on his cycle and was carrying measures with him. It was at about 5-30 A.M. of the day that the accused was thus seen with two milk cans on his cycle and selling milk. It was at this time that he was called by the Food Inspector, who disclosed to him his identity and asked him to give a sample of milk for a price to be paid. This evidence indicates with reasonable certainty that the accused was in the course of conveying delivering or preparing to deliver milk to his customers-purchasers and negatives Mr. Desai's contention that the prosecution case rested entirely on the basis that the accused was selling milk and the power of the Food Inspector thus can arise only on proof of the fact that the accused was selling the milk. The examination of the accused by the Court also does not indicate that the prosecution case was confined only to the fact that the accused was, at the material time, selling milk. No prejudice is shown to have been caused to the accused. Again, the question, in my opinion, is merely of an academic interest having regard to the evidence on record which I shall discuss a little later, and which, in my opinion, discloses that the case of the Food Inspector was of attempting to take the sample of milk from the accused who was seen in Bapunagar with two cans of milk and measures with him on his cycle and was selling the milk and was thus in possession of milk intended for sale and which milk was to be delivered or conveyed to the regular purchaser or clients in the ordinary course of his business or work. It is, therefore, not necessary to go into the questions as to what constitutes a 'sale' and what is a 'sample' and the impact of the definitions of the two terms on the prosecution case. However, as Mr. Desai has addressed me at length on the second part of his first contention aforesaid by relying on the definition of the two terms and urged that there must be an article for sale and an action on the part of the Food Inspector to exercise his power of taking the sample in the manner required by law, in order that the Food Inspector has the power to take the sample the prevention of which act is made an offence under Section 16(1)(b) of the Act, it is but proper that I should discuss the questions.

11. As regards the fourth ingredient, Mr. Desai's submission, it may be remembered, was that assuming that there was an intention on the part of the accused person, to prevent the Food Inspector from taking the sample, such intention must be accompained by (i) some physical obstruction, (ii) threat, or (iii) assault on the Food Inspector. In Mr. Desai's submission, unless one of the three accompainments to the intention is proved, there is no offence. I understand Mr. Desai to say that there must be an overt act of one of the three types evincing such intention. In support of his contention. Mr. Desai has strongly relied upon a decision of this High Court in the Chaturbhai (1966) 7 Guj LR 120 = (AIR 1967 Guj 61) delievered by Mr. Justice Raju. In that case, the State had filed an appeal against an order of acquittal under the Prevention of Food Adulteration Act, 1954. The prosecution case was that the accused, who was sitting in his shop when the Food Inspector, visited it and asked for a sample of milk, refused to give a sample and left the shop and thus prevented the Food Inspector from taking the sample. The evidence disclosed that the respondent had raised his hand at the time. But there was no evidence to show whether the raising of the hand amounted to a threat or an assault and the learned Judge, therefore, left the circumstances out of account. It was observed that the Food Inspector has got powers under Section 10 of the Act to take a sample and, therefore, mere refusal would not amount to preventing the Food Inspector from taking a sample. In the opinion of the learned Judge, there was also no evidence of any threat as was in the case of Cort and Gee v. Ambergate, Nottingham and Boston and Eastern Junction Rly., Co., (1851) 20 LJ QB 460 at p. 465. It was observed: "Whbether the Food Inspector was prevented or not would depend on the case in order to constitute the offence. There must be a physical obstruction or a threat or an assault. Mere refusal to give a sample would not amount to such prevention. Nor would merely leaving a shop, we do not know for what purpose, amount to prevention. The acquittal appeal is, therefore, dismissed." It appears from the observations of Raju, J., that a mere refusal to give a sample or merely leaving a shop would not amount to preventing a Food Inspector from taking a sample. As observed by the learned Judge in the case, whether the Food Inspector was prevented or not would depend on the facts of the case. It is not, therefore, correct to say that the decision lays down a rule of law which concludes the point before me. The case in (1851) 20 LJQB 460 referred to by Raju, J., is the one reported in (1851) 85 RR 361 at p. 369 wa sin relation to an action for damages brought by the vendor against the purchaser for breach of an executory contract to manufacture and supply the goods, namely, railway chairs, from time to time, to be paid for after delivery and where the purchaser, having accepted and paid for a portion of goods, gave notice to the vendor not to manufactrure any more as the purchaser had no occasion for them and will not accept or pay for them and the vendor having been desirous and able to complete the supply. It was contended by the plaintiffs that the defendants did prevent and discharge the plaintiffs from supplying the residue of the chairs and from the further execution and performance of the said contract. The defendants disputed that the plaintiffs were ready and willing to perform their contract and contended that the delay and final cessations took place with their concurrence. It was contended that the only modes in which the plaintiffs could exonerate themselves from the conditions precedent were either a competent dispensation or an actual prevention by the covenantee. It was contended that they did not prevent or discharge the plaintiffs from supplying the residue of the chairs. It was contended that "prevent" must mean an obstruction by physical force, and in answer to a question from the Court, the reply was that it would not be a preventing of the delivery of goods if the purchaser were to write in a letter to the person who ought to supply them. "Should you come to my house to deliver them. I will blow your brains out." It was contended that there could be no readiness and willingness to perform the contract unless all the chairs were finished and tendered; that to prevent must be by positive physical obstruction, and that there can be no discharging unless by an instrument under seal. On a consideration of the various contentions raised. Lord Campbell, Ch. J. Held that the defendants had refused to accept the residue of the goods and that they had prevented and dishcarged the plaintiff from manufacturing and delivering them and therefore, the vendor was entitled to maintain an action against the purchasers for breach of the contract. It is difficult to see how the decision can assist Mr. Desai's contention.

15. Now, the evidence examined in the trial Court consists, as aforesaid,of the deposition of the Food Inspector, supported as it is by the evidence of the peon of the Food Inspector who was all along with him and is further corroborated by the evidence in the shape of the panchnama, which is proved to have been signed by the panchas who acknowledge their signatures to the panchnama. I have set out earlier, while making out a statement of the prosecution case, the evidence in chief of the Food Inspector and I need not repeat it. I may only say that the evidence discloses that the Food Inspector had seen the accused with two milk cans and measures on his cycle at 5-30 A.M. of the relevant day, that he had seen him selling milk, that he had called the two panchas, that he had asked the accused about the quality and the rate of the milk, that the accused had refused to sell the milk and thereupon he had revealed to the accused his identity as a Food Inspector and requested him to give milk on payment of the price, but the accused did not sell the milk meaning that he did not enable the Food Inspector to take the sample of the milk and instead threw away the milk. No material infirmity is brought out in the cross-examination of the Food Inspector. On the contrary, he has stated that he took down the name of the accused as was given by him and this was after due verification, he has repelled the defence suggestion that the man obstructing the Food Inspector from taking the sample was not the accused. He has also repelled the suggestion that the panchnama was made afterwards. Except for throwing some challenge as regards the identity of the accused in the cross-examination, the other material facts stated by by the Food Inspector in his evidence in chief have gone unchallenged. The identity of the accused is established beyond reasonable doubt and this is not a case of mistaken identity. Panchas Ramkishan and Vadilal admit their signatures to the panchnama Ex. 3 of the factum of milk having been spilled on the ground, although they prevaricate on some other part of their evidence. So far they support the evidence of the Food Inspector. The evidence of the peon supports the version of the Food Inspector in all material particulars. It was, however, contended by Mr. Desai that the version of the two different in so far as the Food Inspector stated that he had seen the accusd selling the milk and the peon stated that he had seen the accused going on his cycle. But, reading the evidence of the peon as a whole, I do not find any material variation so as to introduce any infirmity in the evidence of the peon. In any case, the two versions are not inconsistent. The evidence of the Food Inspector appears to me to be trustworthy. His is a natural version of the events that had happened on that early morning. It is not shown that the Food Inspector had any bias against the accused, nor is any such case made out against the peon. Even apart from the evidence of the two panch witnesses who have been declared hostile, the evidence of the Food Inspector receives corroboration from the material circumstances that the milk was found spilled on the ground at the time when the panchnama, Ex. 3 was drawn up. Again, the early hour of the day and the manner in which the accused was seen at the time with two milk cans and measures on his cycle and going in the blocks in Bapunagar are further circumstances which lend further corroboration to the Food Inspector's version. The evidence leaves no manner of doubt that the accused was in possession of milk for sale and that he had thrown away the remaining part of the milk of the two cans on the ground and this was with the deliberate intention to thereby prevent the Food Inspector from taking the sample of milk for analysis, which would have exposed him to a criminal charge of sale of adulterated milk. The accused had thus made it impossible for the Food Inspector to exercise his powers under Sections 10(1)(b)(a), 10(7) and 11(1) of the Act. As aforesaid, an overt act is not necessary for the purpose. However, in this case, the very act of the accused in thorwing away the milk when the Food Inspector proposed to take the sample of the milk amounted to an overt act. In any view of the matter, therefore, the learned trying Magistrate was right in convicting the accused of the right in convicting the accused of the offence punishable under Section 16(1)(b) of the Act. I must accordingly maintain the order of conviction and sentence now under appeal before me.