S.S.DEWAN, J. - (1.) THE precise connotation that could be attached to the word 'prevents' in section 16(1)(c) of the Prevention of Food Adulteration Act, 1954, is the interesting issue of interpretation which arises in this petition.
(2.) TERSELY speaking, shorn of all unnecessary details, the prosecution case as disclosed at the trial is that on June 2, 1979, Food Inspector Dr. Sat Pal visited the shop of M/s. Sadhu Ram Sushil Kumar at Moga and found the Petitioners selling 'Patashas' besides some other articles. The Food Inspector after disclosing his identity wanted to purchase Patashas from the accused-petitioners for analysis. In the meantime, Lajpat Rai petitioner slipped away from the shop. The Food Inspector served a notice (Form No. VI) on Yadd Ram petitioner but he refused to sign or thumb mark the same. He, however, then purchased 1-1/2 kgs. of Patashas from Yadd Ram for Rs. 6/-. He paid the price to Yadd Ram but when asked to sign or thumb mark in token of his having received the price, the latter refused to do so. The notice and the receipt were attested by Dr. Avtar Singh Virk. When the Food Inspector completed the formalities and had just sealed one packet, Lajpat Rai petitioner accompanied by some persons appeared on the scene and he physically pushed back the Food Inspector and snatched the papers concerning the taking of sample from Yadd Ram. The letter snatched the sealed sample from the Food Inspector while the other two parts of the sample were snatched away by some persons from amongst the crowd. The members of the crowd continued hooting and as a result thereof, the Food Inspector was compelled to leave the place without the sample and the documents being prepared by him. The petitioner were tried for contravening the provisions of Section 16(1)(c) of the Act. The learned Magistrate found the accused guilty of the said offence and sentenced them. Being aggrieved by the judgment of their conviction and sentence by the trial Magistrate, the petitioners went up in appeal but without any success. The rather delicate question as to what amounts to preventing a Food Inspector from taking a sample in the present context must necessarily revolve around the relevant statutory provisions of Section 10, 11 and 16 of the Act. The term 'prevent' having not been defined by the statute, I have to construe it in the light of various High Courts. In Public Prosecutor v. Murugesan, AIR 1954 Mad. 199, Ramaswami, J., while interpreting Section 11(3) of the Madras Prevention of Food Adulteration Act observed as under (at p. 199) : "Where a person by his action effectively prevented the officer from taking the sample, held that no over act was necessary to make out preventing under Section 14(3) of the Act." In Municipal Board Sambhal v. Jhammanlal, AIR 1961 All. 103, the word 'prevent' appearing in the Act came up for interpretation. The accused is that case instead of giving sample of mustard oil to the Food Inspector left the shop and promised to come shortly. The Food Inspector waited for some time, but the accused did not turn up. Tota Ram, who appears to have been also sitting on the shop was then asked by the Food Inspector to supply the sample. He said that sample could only be given by Jhammanlal accused and that he was going to call Jhammanlal. He also left the shop. The Food Inspector waited for an hour and a half, but neither Totaram nor Jhammanlal came back. On conviction it was urged before the Allahabad High Court that Food Inspector was not prevented from taking sample, because under sub-section (4) of Section 10 of the Act, he could have seized the articles and carried it away. B.D. Bhagava, J., speaking for the High Court observed : "If a person disappears from the shop, in our opinion, he has done an overt act by means of which he has made it impossible for the Food Inspector to obtain a sample from him. Apart from this fact we do not think that in cases of prevention an overt act is necessary" In Habib Khan v. State of Madhya Pradesh, 1971 MPLJ 883, Bhave, J., held that :- "It is not always necessary to use either threat or physical force to prevent the exercise of any power. It can be done in many other ways. * * * Where a milk vendor on being accosted by Food Inspector, keeps his milk-case in canteen and bolts away, the milk vendor prevents the Food Inspector from taking the sample and thus commits an offence under Section 16(1)(b)." In Ayodhya Bhagat v. State of Bihar, 1973 FAC 89, Wasiuddin J. of the Patna High Court observed as under : "A Food Inspector can be prevented from obtaining a sample which he is authorised to take in exercise of his power under the Act within the meaning of the Section 16(1)(b) not only by some overt act, but also by an omission which has the consequence of preventing the Food Inspector from obtaining the sample from a person selling the article of food concerned. It cannot be the intention of the legislature that the Food Inspector must be compelled by reason of some act or omission of the person selling an article of food to resort to his powers under sub-sections (2) and (5) in every case. To impose such as limitation upon the powers of the Food Inspector would amount to rendering his powers under sub-section (1) nugatory. If, therefore, a person selling an article food refuses to comply with the demand of the Food Inspector to give a sample of it to him on tender of the requisite price then the refusal has the consequence of preventing the Food Inspector from taking a sample which he is authorised to take by the Act and the person who thus prevents a Food Inspector from taking a sample an offence punishable under Section 16(1)(b) read with Section 10(1)(i) of the Act.
(3.) IN District Board Patna v. Sadhu Sao, 1972 FAC 265 the accused in that case on being asked by the Food Inspector to give 6 chhataks of mustard oil by way of sample, refused to give sample to the Food Inspector. The learned Judge came to the conclusion that the act of the accused which includes also his omission had the consequence of preventing the Food Inspector from obtaining the sample from a person selling the article of food concerned. Keeping the above proposition of law in view, I shall now examination examine whether in the case in hand it has been proved from material on record that the petitioners not only refused to give sample of 'Patashas' for the purpose of analysis to the Food Inspector but created such circumstances whereby the Food Inspector can be said to have been prevented from taking the sample within the meaning of Section 16(1)(c) of the Act.;