V.P.Mathur - (1.) THIS is an appeal against acquittal. The order of acquittal has been made by Mr. R. K. Arya, Chief Judicial Magistrate, Farrukhabad on 2-3-1977. The case against Satish Kumar Kapoor was for an offence punishable under Section 16 (1) (c) of the Prevention of Food Adulteration Act.
(2.) THE prosecution case was that on 6-7-1975 at about 6:30 in the morning, Food Inspector Sri L. S. Tandon along with Sri R. N. Saxena, Food Inspector reached the Ice Candy factory of the accused Satish Kumar Kapoor installed in one of the outer rooms of his residential house in Mohalla Khat-rana, Farrukhabad adjacent to the machine room. THEre is his Gaddi room and the two rooms are connected by a door. It is said that the accused prevented the Food Inspector Mr. L. S. Tandon from taking the sample of ice-candy which he was manufacturing in his factory, closed the door and himself left the place. The matter has to be considered on two aspects namely the legal aspect and the factual aspect. The learned Magistrate is of the view that subsection (2) of Section 10 of the Prevention of Food Adulteration Act does not make it incumbent upon the factory owner or the manufacturer to give the sample. It only authorises the Inspector to take the sample. His opinion is that as such even if all the prosecution allegations are accepted, it will not be a case in which the Food Inspector was prevented from taking the sample. On the factual side, his finding is that actually no occurrence took place on the date and time mentioned by the prosecution and the whole has been made up, because the accused did not oblige the Food Inspector regarding his illegal demand. Taking the legal position first, the learned Magistrate has made a distinction between the provisions of Section 10(1) and 10(2) of the Act. According to him, in view of Section 10(1), the Food Inspector is authorised to take sample from any person, but according to sub-section (2) of Section 10, the Food inspector has been authorised to take sample from the premises. In my opinion unnecessarily a lengthy discussion of the two provisions of the law has been made in the judgment and a distinction without difference has been struck. As a matter of fact, although the language of the two provisions of the law is obviously different. The import is the sarnie. Under sub-section (2) of Section 10 the Food Inspector has the authority to enter and inspect any place where articles of food are being manufactured or stored for sale or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale, or where any adulterant is manufactured or kept. He has also the authority to take samples of such article of food or adulterant for analysis. Naturally the sample has to be taken in accordance with certain procedures as prescribed by the Act itself and they involve payment of the price service of the notice etc. The mere fact that no mention of "person" is made in subsection (2) cannot be taken to mean that the sample can be obtained even if the person who is manufacturing the food item is absent. Some body will have to be present on the spot to disclose the price of the sample and to obtain it and to receive the notice etc. Therefore the effect of sub-sections (1) and (2) is the same. Sub-section (2) cannot operate in vacuum. A person is to be involved because the sample will have to be taken from him in accordance with the provisions of the Act. It cannot be contemplated that if the manufacturer or the owner or the servant are all absent, the inspector can still enter the place where the manufacture is going on and obtain a sample of his own accord in the absence of every body.
(3.) THE discussion in the learned Magistrate's judgment was unnecessary also, because if the prosecution evidence is believed then it will have to be held that the Inspector was not allowed to function properly and he was prevented from taking the sample. In a Division Bench Case 1971 CrLJ 785 it was held that mere refusal on the part of the vendor to comply with the request of the Food Inspector to sell him goods for sample will not amount to preventing the Food Inspector from taking the sample. In this case, the earlier case of Municipal Board Sambhal v. Jhamman Lal, AIR 1961 Allahabad 103=1960 AWR 490 Division Bench was considered and it was held that the observations in Jhamman Lal's case were in the nature of obiter dictum and were distinguishable. Subsequently in the case of Sriram v. State, 1976 ACQ High Court page 19 another case was considered by this Court. THEre the accused on demand refused to give a sample and then went away after closing his shop. It was held that it was an overt act which frustrated the inspector's mission and prevented him from doing his duty. THE closing of the shop was held to be having a direct nexus with the vendor's refusal to give a sample. The latest law in the matter has been laid down by the Supreme Court in the case of Rajinder Pershad v. State of Haryana, 1983 AWC 789 S. C. : In the case before the Supreme Court, the facts were that the Food Inspector disclosed his identity and asked the shop keeper for a sample of dhania which he had kept for sale and offered payment. The accused however made a false pretext that he wanted to go to pass urine and, on that plea, he left the place and did not return. It was held that this amounted to preventing the Food Inspector from taking the sample in accordance with the provisions of the Act and rules and no other overt act was necessary to constitute the offence. Hence it was held that conviction under Election 16 (1) (c) of the Prevention of Food Adulteration Act was justified. While deciding this case the Supreme Court overruled the case of Jagannath v. State of M. P., 1977 CrLJ 974 M. P. and of Narain Prasad v. State of Rajasthan, AIR 1978 Rajasthan 162 F. B. ; it approved the cases of Municipal Board Sambhal v. Jhamman Lal, 1960 AWR 490 = AIR 1961 Alld. 103 and the case of Habib Khan v. State of Madhya Pradesh, 1971 MPLJ 889 as well as the case of Mamchand v. State, 1971 AWR 621.;