1. This Appeal is by the State against the acquittal of the accused of the charge under Sec. 16(1)(b) of the Prevention of Food Adulteration Act, hereinafter referred to as the ‘Act’.
2. A-1 and A-2 are partners in a business dealing in food grains like turmeric, jaggery, pulses, flours and oils at door No. 10-1-1972 on Vinukonda road in Narasaraopet.
3. The case for the prosecution is that on 16-5-67 at about 9-00 A.M P.W 1, the Food Inspector Narasaraopet Municipality along with his Maistry, P.W 2 went to the shop of the accused and found two bags of turmeric powder kept in the shop for purposes of sale. P.W 1 demanded A-1 to give sample of turmeric in one of the bags for purposes of analysis but A-1 refused and when A-2 was asked he also refused. Then P.W 1 told them that such refusal is wrongful under the provisions of the Act. A-1 asked A-2 to lock the shop and after A-2 had clone so of both them went away. P.Ws 1 and 2 waited there for some time and when the accused did not turn, in the presence of P.W 2 one Khaderveli, he drafted a panchanama and then filed the charge sheet under Sec. 16(1)(b) of the Act for preventing the Food Inspector from taking sample as authorised by the Act. In support of this case the prosecution had examined P.Ws 1 to 3.
4. The accused denied the offence and contended that the Food Inspector never visited their shop and he was not prevented from taking any sample of the turmeric powder and examined five witnesses in his defence.
5. The Magistrate on an examination of the evidence found the accused not guilty of the charge and acquitted the accused of the charge. Hence this appeal by the State.
6. It is strenuously contended on behalf of the accused here that even if the prosecution story is true merely refusing to give a sample and looking the door and going away does not amount to preventing the Food Inspector from taking the sample as contemplated by Sec. 16(1)(b) of the Act that the Food Inspector is authorised and empowered under the Act itself to take the sample by force and if necessary by breaking open the lock of the shop in so far as he was not physically prevented from doing any such act, he cannot be said to have been prevented from taking the sample. This contention is not tenable. The word ‘prevents’ only means ‘to hinder effectively’ from taking the sample. It does not necessarily mean that there should be actual prevention by using physical force against the Food Inspector who intends to take sample. As pointed in Municipal Board v. Jhamman Lal . AIR 1961 Allahabad 103. if a person selling the article leaves the shop when the Food Inspector had come and had asked for sample even then he should be construed to have prevented the Food Inspector from taking the sample and if a person disappears from the shop 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. In that case there were two persons, the first person who was asked to give a sample left the shop saying that he will come shortly and did not return and when the second person in the shop was asked to supply the sample he stated that only the first person that could give and saying that he would fetch him left the place and both of them did not return for an hour and a half; the Food Inspector left the place and gave a report. In those circumstances the accused were found to have prevented the Food Inspector from taking the sample. In Public Prosecutor v. Murugesan . AIR 1954 Madras 199. the accused who was carrying milk was asked to give the milk for sample, but he went into a hotel nearby and had the milk poured into a milk pan in which milk was also boiling. It was held therein that the accused by his action had effectively prevented the officer from taking sample, and that no further overt act was necessary to make out ‘preventing’ under the section. In the present case the Accused if P.W 1 is believed had gone further. A-1 and A-2 refused to give sample and at the instance of A-1, A-2 locked the shop and both of them had left the place. Thus they had effectively prevented P.W 1 from taking any sample. So, if the prosecution version is accepted the case against the accused under Sec. 16(1)(b) is made out.
7. It is however contended that P.Ws 1 and 2 never visited the place, that due to the animosity that P.W 1 entertained against the A-1 on account of his suspecting A-1 to be responsible on his pending transfer, this case has been foisted without even visiting the shop, and that A-1 and A-2 never prevented him from taking the sample. On behalf of the prosecution however three witnesses were examined. Of these P.W 1 is the Food Inspector and P.W 2 is his Maistry working under him. Two independent witnesses had however been taken for signing in the Mahazar prepared and the alleged Mahazar, Ex. P-1, was prepared at the shop itself. Of these only one P.W 3 has been examined. But this P.W 3 had turned hostile. His evidence now in Court is that he did not at any time go with P.Ws 1 and 2 to the shop of the accused, that as he was going for his work, P.W 1 met him at Sitaramaswami temple and asked him to sign in Ex. P. 1 and he signed.
8. The Magistrate has also pointed out a number of discrepancies in the evidence of P.Ws 1 and 2. While P.W 1 stated that both the accused were present when he visited the shop, P.W 2 stated that A-2 alone was present and when P.W 1 asked him to give the sample of turmeric powder he refused. In cross examination he stated that A-2 went to fetch A-1 keeping the door of the shop open and then A-1 and A-2 returned together. P.W 1 the Food Inspector says that when he asked for the turmeric powder A-1 stated that if the sample of turmeric powder is given, a result to the effect that it was adulterated only will be received and so saying he refused whereas P.W 2 says that they did not give any reason for the refusal. There is also a discrepancy in the evidence of these two witnesses as to where the name board of the firm was. While P.W 1 stated that it was on the wall P.W 2 stated that it was lying on the ground. The inconsistent versions throw a doubt as to the truth of their visit to the shop. There is also the evidence let in on behalf of the Accused to show that P.Ws 1 and 2 did not visit the shop on 16-5-1957. The Clerk, D.W 1 and a neighboring owner D.W 3 say that on the date in question there was no inspection of the shop at all by P.Ws 1 and 2. Besides this there is evidence to show that after D.W 2, A-1 was the Secretary of the Kirana Merchants Association, that the transfer of P.W 1 from Narasaraopet to Machilipatnam was pending and P.W 1, according to D.W 5, met A-1 on the road and told him that he was responsible for his transfer and when A-1 protested that he was not capable of doing such a thing, P.W 1 went away in an angry mood threatening him that he would see the consequences. Whatever the truth of this allegation is, the evidence let in on behalf of the prosecution with regard to the visit and the refusal by the accused to give turmeric powder is discrepant and is uncorroborated by any independent testimony. I, therefore, see no reason to interfere with the order of acquittal passed by the lower court.
9. The appeal, is therefore, dismissed.