P.K. 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 judgment of acquittal passed by the Sub -Divisional Magistrate (J.), Karimgani in 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, Karimgani 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, tine learned Counsel for the appellant, that there is no other report in the record.
The Chairman, Karimgani 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 Saha 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 getting 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 -charge of Municipality or the Chairman himself should accord sanction as are done in other cases of the similar nature.
Sd./ - - - - -, Advocate 28 -11 -1970
The Chairman appears to have made the following order on the basis of this report of the Advocate:
P1. visit Sri Nepal Ch. Saha's shop again and draw sample for your purpose and report.
Sd./ - - - - -, Chairman 18 -12 -1970
We do not find what transpired between 18 -12 -1970 and 9 -1 -1971 when the following order sanctioning the prosecution was passed by the Chairman:
In pursuance of Resolution No. 4 of 29 -1 -1970 of Karimganj Municipality sanction is hereby accorded for the prosecution of Sri Nepal Chandra Saha, a partner of Messrs. Budhai Nepal Chandra Lalit Mohan Saha of East Bazar, Karimganj. P. S. Karimganj.
Under Section 7/16(b) of Prevention of Food Adulteration Act, 1954, by the Food Inspector, Karimganj Municipal Board.
Sd. - -. Chairman, 9 -1 -1971. Karimgani Municipal Board.
This is marked as Exhibit 5 in the case.
After this the Food Inspector submitted a complaint to the Sub -Divisional Magistrate (J.) on 4 -1 -1971 on which cognizance was taken by the Magistrate with the result as stated above.
The complainant examined himself and another witness who is his subordinate employee of the Municipality. The defence did not adduce any evidence, but the accused in his statement under Section 342. Criminal P. C. denied the charge and asserted that he did not prevent the taking of sample. The learned Magistrate acquitted the accused as it appears, on the following grounds:
Firstly, he held that "mere refusal to give a sample would not amount to preventing. The preventing should be by physical obstruction, a threat or an assault". The learned Magistrate having propounded the law as above, found that there was no physical obstruction or threat or assault in this case. The learned Magistrate did not place reliance on the evidence of the two witnesses with regard to their attempt to prove before the Court that the accused was angry and that there was likelihood of breach of peace. We do not feel called upon in this case to decide whether the learned Magistrate is correct in holding that the two witnesses are unreliable with regard to the statements on oath made by them and if there are compelling reasons to take a different view from that of the learned Magistrate with regard to the assessment of the evidence in this case. It is sufficient to take note of the legal requirement of Section 16(1)(b) of the Act. That section reads as follows:
16(1) If any person -
(a) X X X
(b) prevents a Food Inspector from taking a sample as authorised by this Act,
(c) X X X
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 tooth;
(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 judgment 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 judgment 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 9 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
(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 safe 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 to 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 1893 (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
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 he 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
(3.) 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 flood stored far 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 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. 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 toe 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.;