J L ROY Vs. NEPAL CHANDRA SAHA,
LAWS(GAU)-1973-2-4
HIGH COURT OF GAUHATI
Decided on February 27,1973

J L Roy Appellant
VERSUS
Nepal Chandra Saha, Respondents

JUDGEMENT

GOSWAMI, J. - (1.) THIS appeal by a special leave at the instance of the Food Inspector -cum -Urban Health Officer, Karimganj Municipality, Karimganj is directed against a judgement of acquittal passed by the Sub -Divisional Magistrate (J.), Karimganj, in a case under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954, briefly the Act.
(2.) THE prosecution case is that the Food Inspector with witnesses visited the shop of the accused, who is a partner of a firm. Messrs. Bhudai Nepal Chandra Lalit Mohan Saha and on suspicion that there was adulterated flour inside the shop, asked the accused to give sample of 600 grams of flour from one of the bags which were found in the shop. The accused refused to supply the sample. This happened on 25th November, 1970. Being unsuccessful that way he made a written report (Exhibit 2) to the Chairman of the Municipal Board. Karimganj on the following day and requested to accord sanction for prosecution of the accused under Section 16(1)(b) of the Act. We may as well quote in extenso this report as the sanction for prosecution was based by the Chairman on this report. It is admitted by Mr. S.K. Sen, the learned Counsel for the appellant that there is no other report in the record. "To The Chairman, Karimganj Municipality. Sir. I have the honour to state that on 25.11.1970 at about 9 a.m. in course of my duty I with witnesses entered the shop of Messrs. Budhai Nepal Chandra Lalit Mohan Sana of East Bazar, Karimganj and found Sri Nepal Chandra Saha a partner of the shop present in the shop. I checked the food stuff and in course of which I found several bags of flour stored for sale which I suspected to be adulterated and then issued in Form VI to the said Shri Nepal Ch. Saha to give me a sample of 600 grams of flour for Setting analysed by the Public Analyst, Shillong. Sri Nepal Ch. Saha did not accept the notice and on the contrary he refused to supply me with the sample as demanded by me. Then I verbally requested him to comply with my legal demand still then he refused. Sri Nepal Ch. Saha has committed an offence under Section 16(1)(b) of the P. F. A. Act, 1954. You are therefore, requested to accord sanction for the prosecution of the said Sri Nepal Ch. Saha under Section 16(1)(b) of the P. F. A. Act. Faithfully yours, Sd./ - Dated 26.11.1970 Urban Health Officer. Karimganj. It appears the Chairman took the opinion of the local Advocate of the Karimganj Municipality who submitted the following report (Exhibit 4) on 28.11.1970. "Chairman -in -charge, I have gone through the report of the Food Inspector which discloses an offence. In order to prosecute the offender of the P. F. A. Act, 1954, sanction of Chairman in case of Municipality is required under Section 20 of the P. F. A. Act. In the instant case the Chairman -in -ch (......he shall, in addition to the penalty to which he may be liable under the provisions of Section 6. be punishable - (i) for the first offence, with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both; (ii) for a second offence, with imprisonment for a term which may extend to two years and with fine; Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgement of the Court, such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees; (iii) for a third and subsequent offences, with imprisonment for a term which may extend to four years and with fine : Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgement of the Court, such imprisonment shall not be less than two years and such fine shall not be less than three thousand rupees." The section clearly indicates that the offence is complete if any person prevents a Food Inspector from taking a sample as authorised by the Act. The expression "as authorised by the Act" takes us back to Sections 10 and 11 of the Act. The Food Inspectors are appointed under Section 8 of the Act and under Sub -Section (2) thereof shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code. Section 10 provides for the powers of Food Inspectors. Under Section 10(1) the Food Inspectors shall have power - (a) to take sample of any article of food from - (i) any person selling such article; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; X X X X X X X X (2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take sample of such articles of food for analysis. (3) Where any sample is taken under clause (a) of Sub -Section (1) or Sub -Section (2) its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken. (4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded he may seize and carry away or keep in the sale custody of the vendor such article in order that it may be dealt with as hereinafter provided. (5) The power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale; Provided that the power to break open the door shall be exercised only after the owner or any other person in occupation of the premises, if he is present therein refuses to open the door on being called upon to do so : Provided further that the Food Inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure. 1898 (Act V of 1898), relating to the search or inspection of place by a police officer executing a search warrant issued under the Code. (6) x x x (7) x x x (8) Any Food Inspector may exercise the powers of a police officer under Section 57 of the Code of Criminal Procedure. 1898 (Act V of 1898) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized. (9) x x x x" Section 11 of the Act provides as under : "11. (1) When a Food Inspector takes, a sample of food for analysis, he shall - (a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample; (b) x x x (c) x x x (2) If the person from whom the sample has been taken declines to accept one of the parts, the Food Inspector shall send intimation to the Public Analyst of such refusal and thereupon the Public Analyst receiving a sample for analysis shall divide it into two parts, and shall seal or fasten up one of those parts and shall cause it, either upon receipt of the sample or when he delivers his report to be delivered to the Food Inspector who shall retain it for production in case legal proceedings are taken. (3) When a sample of any article of food is taken under Sub -Section (1) or Sub -Section (2) of Section 10. the Food Inspector shall send a sample of it in accordance with the rules prescribed for sampling to the Public Analyst for the local area concerned. x x x x" 4. 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 person -in -charge., of the shopkeeper is necessary he is prevented from carrying 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 -charge. 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 art 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. If any assault is made upon the Food Inspector, who is a public servant under section 21 I. P. C., provisions of the Indian Penal Code may also be attracted. While an offence under Section 16(1)(b) may be committed, it may also be possible that other offences may also be committed justifying action under the Penal Code. The learned Magistrate was entirely wrong in holding that force must be used upon the Food Inspector in order that the offence under Section 16(1)(b) may be committed. There is no, ingredient of force necessary to establish, an offence under section 16(1)(b) of the Act if from the facts found the Inspector is prevented from taking the sample. 5. That however would not conclude the matter in this case. The learned Advocate General. Nagaland, has drawn our attention to the offence report on which cognisance was taken by the Magistrate. Under Section 20 no prosecution for such an offence shall be instituted without the written consent of the Municipality in this case. It is claimed by Mr. S.K. Sen that proper sanction has been given by the Chairman in this case and there is no defect whatsoever in that sanction. We have already set out the relevant documents with reference to the sanction. It is clear that the report on which consent was accorded disclosed that "the accused refused to supply me with the sample as demanded by me. Then I verbally requested him to comply with my legal demand still then he refused".The verbal demand was certainly a demand to supply the sample. There is. nothing in the report (Exhibit 2) to indicate that the Food Inspector was prevented from taking sample of the flour from the shop. It is true that when we read his evidence we find that he stated that he made an attempt to open the bag and he was prevented from doing so. but that was only when he gave evidence in Court after two years on 16th November, 1972 during cross -examination. The Magistrate has disbelieved this part of the evidence as afterthought. The sanctioning order on its face does not describe on what facts the sanctioning authority was satisfied to enable him to accord the consent.' It will be however appellant that the facts placed before the Chairman disclosed in Exhibit 2 were the basis for according the sanction. It is therefore, difficult to appreciate how the local Advocate of the Municipality could write on the report (Exh. 2) that an offence was disclosed under Section 16(1)(b). The report even does not recite the words of the section, far less other facts. It has only stated that the accused refused to supply the sample when demanded. This is not what is contemplated under Section 16(1)(b). The facts placed before the Chairman therefore do not establish that an Offence under Section 16(1)(b) was made out, even prima facie, to enable the authority to give the consent to the institution of the case. We are clearly of the opinion that the facts before the sanctioning authority did not disclose an offence under Section 16(1)(b) of the Act. The sanction accorded in this case is not a sanction in the eve of law. That being the position, under Section 20 the learned Magistrate could not entertain the complaint in this case for the offence against the accused under Section 16(1)(b) on the report accompanied by the particular sanction in this case. It is because of this infirmity in the sanction that the entire trial was vitiated. We are, therefore, unable to interfere with the order of acquittal in this case. The appeal fails and is dismissed.;


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