G.N Prasad, J.:— This appeal has been preferred by the District Board of Patna with special leave under sub-section (3) of Section 417 of the Cr PC against an order of acquittal recorded in favour of the respondent by a first class Magistrate of Dina-pore.
2. The prosecution case is that on the 20th November, 1965, Dr. Mohammad Illiyas (P.W 2), an Assistant Health Officer of the District Board and invested with the powers of a Food Inspector, visited the shop of the respondent in village Arap along with two peons—Rairup Singh (P.W 1) and Nanda Singh (P.W 3) — and found him selling mustard oil. Upon his inquiry, the respondent gave out the sale rate of mustard oil as Rs. 4-00 per seer. Thereupon Dr. Illiyas (P.W 2) demanded from him six chhataks of the oil by way of sample for the purpose of sending it for examination by the Public Analyst and offered to him Rs. 1-50 as the price, but the respondent refused to give the sample to the Food Inspector, who was thus prevented from taking the sample. Subsequently, the Food Inspector (P.W 2) forwarded a complaint to the District Medical Officer of Health who sanctioned the prosecution of the respondent. A complaint was accordingly, filed and the respondent was put on trial. The charge foamed against the respondent was that he had committed an offence under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954, by preventing the Food Inspector (P.W 2) “from taking sample of mustard oil on tendering the price for examination by Public Analyst by refusing the sale of sample of mustard oil and also did not allow him to take sample of mustard oil for the said purpose”. The respondent denied his guilt and pleaded not guilty. The learned trying Magistrate accepted the evidence of the Food Inspector (P.W 2), as supported by P.Ws 1 and 3, and held that from the materials on record it had been proved “that the Food Inspector demanded sample of mustard oil from the accused on payment of price but the accused refused to give sample and that when the said Food Inspector merely desired to take the sample, accused did not allow him to take the same”. The learned Magistrate, however, took the view that the mere refusal to give the sample to the Food Inspector unaccompanied by any physical obstruction, threat or assault, did not amount to preventing the Food Inspector from taking a sample. In support of his view, the learned Magistrate relied upon the decision of a learned angle Judge of the Gujarat High Court in State of Gujarat v. Laljibhai Chaturbhai, AIR 1967 Guj 61. The learned Magistrate further held that the Food Inspector (P.W 2) was not justified in asking for the sample from the respondent as there was no satisfactory evidence to indicate that he was carrrying on transactions of sale in the shop, the licence for which stood in the name of his father Sitaram Sao. Accordingly, the learned Magistrate found the respondent not guilty and acquitted him.
3. This appeal originally came tip for hearing before Bahadur. J. sitting singly but his Lordship noticed that there was some conflict of decisions amongst the various High Courts on the point whether to constitute the offence of preventing a Food Inspector from taking sample, there must be a physical obstruction or threat or an assault, and since there was no direct decision of this Court on the point, his Lordship referred this case for hearing by a Division Bench. That is how the matter has come up before us.
4. Before dealing with the questions raised before us in this appeal, if would be convenient to set out the relevant provisions of the Prevention of Food Adulteration Act (Act 37 of 1954). “Sale” has been defined in clause (xiii) of Section 2 of the Act in the following terms:
“‘Sale’ with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such article.”
5. The powers of a Food Inspector have been set out in Section 10 of the Act, the relevant portions of which read:
“10(1) A Food Inspector shall have power—
(a) to take samples of any article of food from—
(i) any person selling such articles
(ii) ……
(iii) ……; and
(b) to send such sample for analysis for the public analyst for the local area within which such sample has been taken?
(c) ……
(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples 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) ……
(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 of 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, 1898 (Act 5 of 1898) relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code.
(6) ……
(7) ……
(8) Any food inspector may exercise the powers of a police officer under Section 57 of the Cr PC, 1898 (Act 5 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) ……”
6. The penal provision is contained in Section 16 of the Act, the relevant portion of which is as follows:—
“16(1) If any person:—
(a) ……
(b) prevents a food inspector from faking a sample as authorised by this Act; or
(c) prevents a food inspector from exercising any other power conferred on him by or under this Act; or
(e) ……
(f) ……
he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees:
Provided that:—
7. It has been contended before us by Mr. S.C Ghose appearing on behalf of the respondent that Sadhu Sao was not the owner of the shop and, therefore, he could not be liable for any penalty under the Act. In support of this contention Mr. Ghose relied upon the evidence of three persons who were examined as defence witnesses and stated in substance that the shop belonged to his father Sitaram Sao from whom the respondent was separate and that the respondent had no concern with the said shop. I do not, however, feel in the least impressed by the evidence of the defence witnesses, because in the cross-examination of none of the prosecution witnesses even a suggestion was made that Sadhu Sao had no concern with the shop or that he was separate from his father. I have, therefore, no doubt in my mind that the defence thus put forward is an afterthought and wholly unworthy of credence. Besides it has been admitted by D.W 1 that the respondent is the only son of his father and both the father and the son live in one and the same house. Likewise, D.W 2 has admitted that Sitaram Sao and his son live together in the same house in which the shop in question is located. D.W 3 has also admitted that Sitaram Sao and Sadhu Sao live in one and the same house. It is, therefore, impossible to accept the contention put forward on behalf of the respondent that Sadhu Sao had no interest in the shop or that it was the property of his father with which he had no concern. Moreover, neither Section 10 nor Section 16 contemplates that the person from whom the sample of any article of food is demanded for the purpose of analysis by a Food Inspector must be the owner of the article in question or must have some interest therein. The Food Inspector has power to demand a sample from any person selling an article of food. The section does not say that the person selling the article must necessarily be the owner thereof or a person having some interest therein. Similarly, Section 16(1) refers to any person and does not say that such a person must necessarily have title to or interest in the article of food, the taking of a sample of which has been prevented. As Section 16(1) is worded, even a rank outsider would incur the penalty provided therein if he or she prevents a Food Inspector from taking a sample which he is authorised to take under the provisions of the Act, or prevents him from exercising any other power conferred upon him by or under the Act. I am, therefore, clearly of the opinion that this contention of Mr. Ghose is devoid of substance.
8. Upon the language of Section 10(1)(a)(i) of the Act, a Food Inspector is authorsed to take sample of any article of food from any person selling such article. It is not necessary, as the learned Magistrate seems to think, that the person from whom the Food Inspector demands the sample must be the licensee of the shop. It is enough if he is a person selling the article of food, the sample of which is demanded by the Food Inspector for being sold to him on tender of the requisite price. No doubt, if a person is merely sitting in the shop, and not carrying any sale transaction himself, then he cannot be called upon to give the sample. In that case if the article of food is found to be stored or kept exposed for sale, then the Food Inspector is empowered to act under sub-section (2) of Section 10 read with sub-section (5) thereof. But the evidence of the Food Inspector (P.W 2) in the present case is not that the respondent was merely sitting in the shop at the time when he had visited it. His evidence rather is that the respondent was selling mustard oil in the shop. Both P.Ws 1 and 3 have said that the respondent was selling mustard oil at the time when the Food Inspector (P.W 2) had asked for the sample of the mustard oil. The learned Magistrate, rightly saw no reason to reject the evidence of these witnesses, The learned Magistrate was therefore, not right in proceeding upon the footing that there is no evidence on the record to prove that the respondent was carrying on sale transaction at the time when the Food Inspector had demanded the sale of the sample of the mustard oil to him and offered to pay the price to him. I am, therefore, unable to subscribe to the view taken by the learned Magistrate that the Food Inspector was not justified in demanding the sample from the respondent.
9. Mr. Ghose has, however, contended that the respondent was not bound to enter into a transaction of sale with the Food Inspector, as desired by him, and that upon the refusal to sell, it was open to the Food Inspector to exercise his powers under sub-sections (2) and (5) of Section 10 of the Act. In my opinion, there is no force in this contention also. The powers of the Food Inspector under sub-sections (2) and (5) are in addition to, and not in derogation of his powers under sub-section (1). It was, therefore, open to the Food Inspector (P.W 2) to demand the sale of the sample of the mustard oil from the respondent whom he had found selling the oil at the time of his visit to the shop.
10. The real question for consideration, therefore, is whether the act of the respondent, which must include his omission to sell the sample to the Food Inspector, despite the tender of the requisite price for it to him, amounted to preventing the Food Inspector from taking the sample which he was authorised to take under sub-section (1) of Section 10 of the Act on this point, as rightly noticed by Bahadur. J., there is a conflict of decisions amongst the different High Courts. The extreme view has been taken in the Gujarat case, AIR 1967 Guj 61 to which I have already referred, and where V.B Raju, J., sitting singly, has held that mere refusal to give a sample of food would not amount to preventing the Food Inspector from taking a sample in the absence of a physical obstruction or a threat or an assault. On the other hand, there are decisions of the Madras and the Allahabad High Courts which indicate that the offer of physical obstruction, threat or assault is not necessary to constitute an act of prevention within the meaning of clauses (b) and (c) of Section 16(1) of the Act. For example, in Public Prosecutor v. Murugesan, AIR 1954 Mad 199, the facts were that a Sanitary Inspector of a Panchayat Board had asked the accused to give a sample of milk which he was carrying for sale for the purpose of being sent for chemical analysis. But instead of giving a sample to the Sanitary Inspector the accused went into a hotel and handed over the milk to a servant of the hotel, who in his turn poured the milk into a milk pan containing other boiled milk. It was held that the accused was guilty, inasmuch as by his act he effectively prevented the Sanitary Inspector from taking the sample and no further overt act was necessary to constitute the act of preventing within the meaning of Section 14(3) of the Madras Prevention of Adulteration Act (3 of 1918). Ramaswami, J. has observed that it would be very dangerous extension of the plain meaning of the word “prevent” to hold that no offence would be made out “unless there was a physical clash and an effective disabling of the executive officer from taking the sample.”
11. In Municipal Board, Sambhal v. Jhamman Lal, AIR 1961 All 103, which is a Bench decision of the Allahabad High Court, the facts were that the Food Inspector had asked the accused to give him a sample of the mustard oil but the accused left the shop promising to return shortly. The Food Inspector waited for some time, but the accused did not turn up. The accused was then prosecuted for having prevented the Food Inspector from taking the sample by abruptly leaving the shop without giving the sample. It was held, following the Madras decision just referred to, that the commission of an overt act was not necessary to constitute an act of prevention and that the conduct of the accused in disappearing in the circumstances mentioned above had made it impossible for the Food Inspector to obtain the sample from the person selling such article which he was entitled to obtain under Section 10(1) of the Act. It was observed:
“If a person either by an overt act or by his omission prevents the Food Inspector from obtaining sample from him he would be guilty under S. 16(b).”
12. The decision of Kapur, J. (as he then was) of the Punjab High Court in Bishan Dass Telu Ram v. State, AIR 1957 Punj 99 seems to contain a middle view. His Lordship held that prevention within the meaning of Section 16(b) of the Act “need not have an element of physical obstruction but it does involve some act which hinders an Inspector from taking a sample.” Mr. Ghose has also drawn our attention to Mussaddi Lal v. The State, AIR 1959 All 753 which is a decision of M.C Desai, J. sitting singly. But the material facts of that case were different. There the Food Inspector had obtained a sample of milk from the accused, but the accused had refused to accept a notice given to them in compliance with the provisions of Section 11(1)(a) to the effect that they had refused to accept one part of the sample offered to them as required by Section 11(1)(c)(i). They had also refused to accept the price of the sample tendered to them by the Food Inspector as required by Section 10(3). It was held that by refusing to accept the notice or the price of the sample, the accused had not prevented the Inspector from taking the sample or exercising his powers under the law. A distinction was drawn between power and duty which the Food Inspector has under Section 10 of the Act, and it was held that the accused had not prevented the Inspector from exercising his powers under the Act.
13. In my opinion, the question must be decided upon the plain dictionary meaning of the word “to prevent” which according to the Chamber's Dictionary means “to balk: to preclude: to stop, keep or hinder effectually: to keep from coming to pass”. According to the Oxford Dictionary it means “to provide beforehand against the occurrence of (something); to render (an act or event) impracticable or impossible by anticipatory action; to preclude, stop, hinder”. It is clear, therefore, that physical obstruction is not an essential attribute of the verb “to prevent” and that prevention can be brought about by some act or omission whereby the person prevented is hindered from performing an act or exercising his power. By way of illustration, I would refer to the offence of ‘wrongful confinement’ as defined in Section 340 of the Indian Penal Code which reads:
“whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said ‘wrongfully to confine’ that person.”
14. It has been held that proof of actual physical obstruction is not essential to support a charge of wrongful confinement: see Ratanlal. The Law of Crimes, page 903 (21st Edition). Upon the plain meaning of the word “to prevent” I find myself unable. I say so with respect to follow the view expressed by V.B Raju, J. in the Gujarat case, AIR 1967 Guj 61. In my opinion, a Food Inspector can be prevented from obtaining a sample which he is authorised to take in exercise of his powers under the Act within the meaning of 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 is true, as suggested by Mr. Ghose, that the Food Inspector can also proceed under the other sub-section of Section 10, where the person refuses to sell a sample of food to him as required under Section 10(1). But the very fact that the Food Inspector is compelled in such a case to resort to his powers under the other sub-section of Section 10 would imply that he has been prevented by some act or omission of the person selling the article of food from exercising his powers under sub-section (1). 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 a limitation upon the powers of the Food Inspector would amount to rendering his powers under sub-section (1) nugatory. The correct view must, therefore, be that if a person selling an article of 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 commits an offence punishable under Section 16(1)(b) read with Section 10(1)(a)(i) of the Act.
15. In the instant case, it has been proved from materials on the record, as found by the learned Magistrate also, that the respondent had refused to give to the Food Inspector (P.W 2) the sample of mustard oil despite the offer of payment of price to him, and that the respondent did not allow me to take the sample. In the view which I have taken, the act of the respondent which must include also his omission fell within the mischief of Section 16(1)(b) of the Act and he is, therefore, liable to the penalty provided in that section.
16. Finally, Mr. Ghose has urged that the present prosecution must fail on the ground that it was not instituted with requisite sanction as contemplated by Section 20 of the Act in this connection Mr. Ghose has urged that there is no material on the record to show that the District Medical Officer of Health, who has given the sanction for the prosecution of the respondent, had the requisite authority for it under any general or special order of the District Board. It appears, however, that the prosecution has brought on the record two documents (Exts. 5 and 7) which give ample indication of the fact that the District Medical Officer of Health was authorised by the District Board by a resolution passed by the District Board at a special meeting held on the 27th April 1957 to institute cases in accordance with Section 20(1) of the Act Ext. 5 is a notice and it shows that a special meeting of the District Board was called for being held on the 27th April, 1957, to consider the Government circular dated the 31st January, 1957, in which it had been suggested that “the Board should authorise the Health Officers also to institute cases in accordance with Section 20(1) of the Food Adulteration Act”. Ext. 7 is the resolution passed by the District Board on the 27th April, 1957, which is appended to Ext. 5 itself and reads:
“No. 8 approved.”
17. Reading Exts. 5 and 7 together, it is abundantly clear that what was approved at the said special meeting of the District Board was the suggestion of the Government that the District Board should authorise the Health Officers also to institute cases in accordance with Section 20(1) of the Act. The fact that this is the true interpretation of Exts. 5 and 7 is also clear from the petition of complaint itself, wherein the District Medical Officer of Health indicated that “I have been authorised by the District Board, Patna by Resolution No. 8 (Special) dated 27-4-1957 to file complaint under the Food Adulteration Act”. I am, therefore, unable to accept the contention of Mr. Ghose that the present prosecution must fail for want of requisite sanction under Section 20 of the Act. For the aforesaid reasons, I am unable to uphold the acquittal of the respondent. I, therefore, set aside his acquittal and convict the respondent under Section 16(1)(b) read with Section 10(1)(a) of the Act and sentence him to undergo simple imprisonment for six months and to pay a fine of Rs. 1000/- or, in default, to undergo simple imprisonment for a further term of two months. The appeal is, accordingly, allowed.
A.N Mukharji, J.:— I agree.
18. Appeal allowed and accused convicted.