S.C.Mathur, J. - (1.) THE present revision is directed against the orders passed by the Courts below refusing to drop or quash criminal proceedings pending against the petitioner in the Court of the learned Additional District Magistrate (Judicial) Sitapur. THE applicant's plea is that on the same set of facts on which the present prosecution is based he was prosecuted earlier and was convicted and, therefore, the second prosecution on the same set of facts is barred. In support of this plea the applicant has relied upon, clause (2) of Article 20 of the Constitution of India, section 26 of the General Clauses Act and sub-section (1) of section 403 of the Criminal Procedure Code. In order to appreciate the controversy it is necessary to narrate the history of the case.
(2.) THE applicant is a dealer in food grains and has his shop in Kesriganj within the circle of P. S. Laharpur District Sitapur. On 21-5 -1971 Sri Yogendra Bux Singh, Food Inspector, visited his shop and suspecting adulteration in gram wanted to take sample thereof. In order to take the sample he expressed desire to purchase 600 grames of gram. It is alleged that the applicant refused to sell gram to said Sri Singh and he pushed him out of the shop and thereafter put his lock on the shop,, thus preventing Sri Singh from taking the sample. A first information report; of the incident was lodged at P. S. Laharpur on 21-5-1971 at 6.55 P. M.. under section 353 of the Indian Penal Code. THE incident itself was said to have taken place at 6 P. M. THEreafter' on 22-5-1971 the Food Inspector sent; a charge-sheet to the Sub-Divisional Magistrate, Sitapur under section 16 (1) (b) read with section 10/1 of the Prevention of Food Adulteration Act. On the basis of the charge-sheet submitted by the Food Inspector, the Sub-Divisional Magistrate Sitapur ordered on 26-5 - 1971 for the case to be registered against the present applicant and also ordered summoning of the accused. After the applicant had put in appearance the learned Magistrate framed; charge against him under section 16 (1) (b) of the Prevention of Food Adulteration Act in following terms : - "Dinank 21-5-71 ko turn karib 6 baje sham apni galley ki dukan par gehun, chana, arhar bikri hetu rakhey khadya nirikshak Laharpur dwara paye gaye aur jiska licence mangne per tatha namoone ke liye milavat ka shak hone par 600 grams chana dene se inkar kiya our Khadya Nirikshak ko apshabad kahte huve jabran unhe dukanse bahar kar dukan men tola laga diya." (italicised by me). THE applicant was tried on the basis of the above charge and the learned Magistrate found him guilty of the charge and convicting him sentenced him to pay the fine of Rs. 500/- or in default to undergo rigorous imprisonment for the period of six months. This order of the learned Magistrate was passed on 15-5 -1972. Against this order the applicant preferred appeal before the learned Sessions Judge. THE learned I Temporary Civil and Sessions Judge by his order dated 22-6-1972 dismissed the appeal. While the above proceedings were pending in the court of Sub-Divisional Magistrate, a charge sheet was submitted by the police under Section 353 of the Indian Penal Code on 30-6 -1972. On coming to know of the submission of the charge-sheet against him the applicant surrendered before the learned Magistrate on 27-5-1971, and was subsequently bailed out. The learned Magistrate framed charge against the applicant on 16-3 -1972. As indicated hereinbefore, the judgment of the learned Magistrate in the earlier trial was passed on 15-5-1972. Thus when the charge was framed on 16-3 - 1972 in the second case the earlier case was still pending. The charge framed on 16-3-1972 in the second trial was in following terms :- "That you on or about 6.00 P. M. in Mohalla Kesariganj, P. S. Laharpur, District Sitapur, assaulted Sri Yogendra Bux Singh, Food Inspector, a public servant to wit by pushing him out of your godown and not allowing him to take sample of gram in the execution of his duty as such public servant." (italicised by me). On 10-7-1972, that is after the appeal arising from the judgment in the earlier case had been disposed off the present applicant moved an application before the learned Magistrate trying the second case that he had already been prosecuted and convicted on same set of facts under section 16 of the Prevention of Food Adulteration Act, and, therefore, the present prosecution was barred. This application was; rejected by the learned Magistrate by his order dated 1-11-1972. The applicant preferred revision but the same was also dismissed on 1-6-1973 by the learned Sessions Judge, Sitapur. The applicant is aggrieved by these two orders and that is how he has approached this Court. As already indicated hereinabove the applicant's case is that the present prosecution is barred under the provisions of Constitution of India, General. Clauses Act and the Code of Criminal Procedure. The argument of the learned counsel for the applicant was thai, the offence alleged in the two criminal cases were based on the same set of facts and in fact constituted one and the same offence. In case the argument of the learned counsel is accepted that the acts alleged against the applicant constitute one and the same offence certainly the present prosecution against him would be barred. In case, however, it is found that the offence alleged in the earlier case was different and distinct from the offence involved in the present case, the provisions of clause (2) off Article 20 of Constitution of India and section 26 of the General Clauses Act will not at all be attracted. Clause (2!) of Art. 20 of the Constitution of India is in following terms : "(2)-No person shall be prosecuted and punished for the same offence more than once." In order to attract cl. (2) reproduced above it is essential that the offence involved in the two prosecutions should be one and the same. It is, therefore, necessany to find out whether the offence or offences involved in the two prosecutions are one and the same or are distinct. in order to appreciate the controversy it is necessary to examine the provisions of section 16 of the Prevention of Food Adulteration Act and Section 353 of the Indian Penal Code. Clause (b) of subsection (1) of Section 16 of the Prevention of Food Adulteration Act provides as follows :- "16 (1)-If any person...... (b) Prevents a food inspector from taking a sample as authorised by this Act; or........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 Rs. 2000/- or with both ; (ii) for the second offence with imprisonment for a term which may extend to two years and with fine."
(3.) IN order to prove the offence under the above provision all that is required to be proved is that the Food INspector was prevented from taking the sample. The prevention of the Food INspector from taking the sample may take place in various ways. It is not necessary that the element of assault must come in. IN case the preventing is accompanied with assault the accused person would be liable for assaulting also, but that would be not under the above provision but under some other provision. My attention was not drawn to any provision in the Prevention of Food Adulteration Act itself under which the offence of assaulting a public servant may be punishable. Such an offence is certainly punishable under section 353 of the INdian Penal Code which provides as follows : "Assault or use of criminal force to deter public servant from discharge of his duty-Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." From what has been stated hereinabove it will be seen that the offence for which the applicant was tried earlier was quite distinct from the offence for which he is being tried now. IN this view of the matter I am of the opinion that the present trial is not barred under clause (2) of Article 20 of the Constitution of INdia. The applicant's reliance upon Section 26 of the General Clauses Act, 1897 is equally misconceived. Section 26 provides as follows :- "26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." Under the above provision also the offence should be the same. If the acts which the accused is alleged to have done amount to commission of two offences Section 26 will not bar two trials in respect of the two offences. Sec. 26 in fact contemplates those cases where the acts alleged fall within the definition of offence under two enactments. I have already indicated hereinabove that the applicant could not be prosecuted for assaulting a Food INspector under the provisions of the Prevention of Food Adulteration Act. Thus assaulting a Food INspector was not an offence under the Prevention of Food Adulteration Act but was an offence under Sec. 353 of the INdian Penal Code. It is not a case where the same act constitutes offence under two distinct enactments. It is a case where it is an offence only under one enactment viz. IPC. I will now take up the third limb of the argument advanced on behalf of the learned Counsel for the applicant. This argument was based on Section 403 of the CrPC, 1898. Reliance was placed by the learned counsel for the applicant: upon sub-section (l).of the said section which is in the following terms :- "403 (1).-A person who has once: been tried by a Court of competent jurisdiction for an offence and convicted on acquitted of such offence shall, while; such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under Section 237" (Italicised by me.);