1. Appellant Rabari Teja Mohan has been convicted by the learned City Magistrate, 6th Court, Ahmedabad, in Criminal Case No. 90 of 1966 for the offence punishable under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954 37 of 1954) which will hereafter be referred to as "the Act". He has been sentenced on this count to suffer rigorous imprisonment for six months and to a fine of Rs. 1,000/- in default rigorous imprisonment for three months.
2. The appellant-accused was charged with having on or about the 5th day of August 1965 at 5-30 A.M. near Block No. 327 in Bapunagar, Rakhial at Ahmedabad, prevented Food Inspector Shri Mangulal C. Mehta from taking sample of milk from the appellant by throwing away the milk on the ground and thereby having committed an offence punishable under Section 16(1)(b) of the Act. The accused was tried on this charge which the learned City Magistrate has found to have been proved against him beyond reasonable doubt. It appears to be the prosecution case that on the morning of August 5, 1965, at about 5-20 A.M., Food Inspector Mehta accompanied by his peon P.W. 4 Mahmadmiya had gone to Bapunagar in Rakhiyal within the city of Ahmedabad. The accused was seen carrying two cans containing the milk with him on his cycle. He had measures with him. He was selling milk. The Food Inspector called two panchas P.Ws. vadilal and Ramkishore. The accused was then called, but he did not come. The Food Inspector then went to him. He asked him about the quality and the rate of the milk that he was selling. In reply, the accused stated that it was cow's milk. However, he did not express his willingness to sell the milk. The Food Inspector, but the accused said that he won't sell the milk. The food Inspector requested him to give the milk on payment of the price. However , instead of giving the milk, the accused threw away the milk. The Food Inspector then asked the name and the address of the accused. A panchnama was then drawn up which was read over to the panchas and was signed by the panchas. The Food Inspector who recorded the Panchnama also signed it. The Food Inspector then drafted the complaint and obtained the necessary sanction to prosecute the accused. After obtaining the sanction, he instituted the complaint against the accused. This, in brief, is the prosecution case as is revealed from the evidence of the Food Inspector P.W. No. 1 Mangulal Mehta, Ex. 2. In support of his evidence, panchnama Ex. 3 which was signed by the panchas in the presence of the Food Inspector was relied upon. The prosecution had also examined the two panch witnesses P.W. 2 Ramkisan Mulchand Ex. 8 and P.W. 3 Vadilal Mohanlal Ex. 9. Although the panchas admitted their presence and the factum of the panchnama having been signed by them, they did not support the prosecution case in all aspects, and it appears that they were treated as hostile witnesses. The prosecution also relied upon the evidence of the peon P.W. 4 Mahmadmiya Mohmad Afzal Ex. 10, who supported the evidence of the Food Inspector. On this evidence, the learned City Magistrate has accepted the prosecution case as against the accused and convicted and sentenced him as aforesaid.
3. In the case which was tried as a warrant case and where there was a denovo trial because of the another Magistrate having taken office during the pendency of the case, the accused had pleaded not guilty to the charge. In his statement recorded under Section 342 of the Code of Criminal Procedure, in answer to the Court's question:
"You heard the entire evidence of the prosecution. Do you wish to say anything?"
the accused replied:
"I am not selling milk at all. I maintain only cows and buffaloes, I do not know anything in the matter."
In answer to the second question , viz.
"The panch witness Ramkishan states that he had seen you on 5-8-65 at about 5-30 A.M. near Block No. 327 at Bapunagar. Do you wish to say anything to that?"
the answer was
In Answer to the third question, viz.,
"Witness Vadilal states that he had also seen you on that date and at that time. Do you wish to say anything to that?"
the appellant replied:
"I do not wish to say anything to that."
In answer to a question:
"Do you wish to say anything else?"
the appellant replied
Thus, the answers of the accused to questions Nos. 1 and 2 and the last question were mere denials, but the answer to question No. 3 was not a mere denial, but that the accused did not want to say anything to that
4. Mr. P. D. Desai, learned Advocate appearing on behalf of the appellant-accused, has contended before me that, on a true and proper interpretation of Section 16(1)(b) of the Act, the said section requires the proof of four ingredients. In other words, the prosecution must prove beyond reasonable doubt the existence of four circumstances to bring home the guilt to the accused, viz.,
I (a) existence of power in the Food Inspector to take the sample of an article of food, and
(b) action on his part to exercise that power in the manner required by law;
II knowledge on the part of the accused that the Food Inspector is proceeding to take a sample of an article of food;
III intention on the part of the accused to effectively hinder or stop the Food Inspector from taking the sample and
IV successful implementation of that intention by some physical obstruction, threat or assault on the Food Inspector.
I will proceed to examine the four circumstances urged by Mr. Desai in order.
5. Section 16 of the Act is the punishing section which provides penalties against an offender. Clause (b) of sub-section (1) of Section 16 of the Act provides the penalty for a person preventing a Food Inspector from taking a sample as authorised by this Act and reads:
"16. (1) If any person-
(a) x x x x
(b) prevents a Food Inspector from taking a sample as authorised by this Act; or
(c) x x x x
(d) x x x x
(e) x x x x
(f) x x x x
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:
x x x x x x x x x
The first ingredient, according to Mr. Desai, which must be present in order to invoke the penalty under Section 16(1)(b) of the Act is, as aforesaid, (a) existence of a power in the Food Inspector to take a sample of an article of food, and (b) action on the part of the Food Inspector to exercise that power in the manner required by law. Thus, the first circumstances falls into two parts (a) and (b), Now., in the instant case it is not the contention of Mr. Desai that the Food Inspector had not the power to take a sample of an article of food. Mr. Desai does not dispute the validity of the appointment of the complainant a the 'Food Inspector. But, contends Mr. Desai that the Food Inspector lacked the power because the condition precedent to the assumption of the power, namely, the conditions mentioned in Section 10(1)(a) are not fulfilled. Mr. Desai contends that the Food Inspector must exercise the power in the manner required by law, which, according to Mr. Desai, has relation to the taking of sample of an article of food by the Food Inspector under Section 10 of the Act. Now, Section 10(1) of the Act deals with the powers of Food Inspectors. Sub-section (1) of Section 10 of the Act which is material for the purpose and which has been relied upon by Mr. Desai, provides that:
"10(1) A food Inspector shall have power-
(a) to take samples of any article of food from
(i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;
(iii) a consignee after delivery of any such article to him; and
(b) x x x x".
In this case, I will not be concerned with the power of the Food Inspector to send such sample for analaysis to the public analyst as mentioned in clause (b) of sub-section (1) of Section 10 of the Act, because, according to the prosecution cases, the accused had emptied the milk cans and thrown away the milk and had thus made it impossible for the Food Inspector to take the sample and send it for analysis, to the Public Analyst.
6. Sub-s. (1) provides for taking of sample of any article of food from a person selling such article, from a person in course of conveying, delivering or preparing to deliver such article, and from a consignee after delivery of such article to him. The Food Inspector has power to take samples of an article of food from a person filing in one of these three characters. The powers to take the sample are not confined only qua a person selling such article. If the prosecution succeeds in establishing the fact that the sample is taken from a person filling in one or the other of these three characters, the taking of the sample of an article of food from that person would be in accordance with the provisions of law, viz., Section 10(1) of the Act and the conditions for the assumption of the power will be deemed to have been fulfilled.
7. Mr. Desai has leaned heavily upon the provision in Section 10(1)(a)(i) of the Act. In Mr. Desai's submission, having regard to the charge, the complaint and the tenor of examination of the accused under Section 342 of the Code of Criminal Procedure, the question of taking a sample of an article of food from persons filing in the characters (ii) and (iii) of clause (a) of sub-section (1) of Section 10 of the Act does not arise in the case. Mr. Desai's submission was that the charge did not specifically relate to the Food Inspector taking the sample while the accused was selling the milk. There is no merit in this submission. The charge which I have set out earlier is broad-based and is not confined to the taking of the sample of milk from a person filling in any particular character. The charge, it may be remembered, was that the accused prevented the Food Inspector from taking sample of the milk from him by throwing away the milk on the ground and thereby committed an offence punishable under Section 16(1)(b) of the Act. It is true that the evidence of the Food Inspector was that he had seen the accused selling the milk and he does not in terms, refer to conveying it. But the evidence further is that, at the material time, the accused had two cans containing milk on his cycle and was carrying measures with him. It was at about 5-30 A.M. of the day that the accused was thus seen with two milk cans on his cycle and selling milk. It was at this time that he was called by the Food Inspector, who disclosed to him his identity and asked him to give a sample of milk for a price to be paid. This evidence indicates with reasonable certainty that the accused was in the course of conveying delivering or preparing to deliver milk to his customers-purchasers and negatives Mr. Desai's contention that the prosecution case rested entirely on the basis that the accused was selling milk and the power of the Food Inspector thus can arise only on proof of the fact that the accused was selling the milk. The examination of the accused by the Court also does not indicate that the prosecution case was confined only to the fact that the accused was, at the material time, selling milk. No prejudice is shown to have been caused to the accused. Again, the question, in my opinion, is merely of an academic interest having regard to the evidence on record which I shall discuss a little later, and which, in my opinion, discloses that the case of the Food Inspector was of attempting to take the sample of milk from the accused who was seen in Bapunagar with two cans of milk and measures with him on his cycle and was selling the milk and was thus in possession of milk intended for sale and which milk was to be delivered or conveyed to the regular purchaser or clients in the ordinary course of his business or work. It is, therefore, not necessary to go into the questions as to what constitutes a 'sale' and what is a 'sample' and the impact of the definitions of the two terms on the prosecution case. However, as Mr. Desai has addressed me at length on the second part of his first contention aforesaid by relying on the definition of the two terms and urged that there must be an article for sale and an action on the part of the Food Inspector to exercise his power of taking the sample in the manner required by law, in order that the Food Inspector has the power to take the sample the prevention of which act is made an offence under Section 16(1)(b) of the Act, it is but proper that I should discuss the questions.
8. "Sale" is defined in clause (xiii) of Section 2 of the Act as under:
" 'sale' with its grammatical variation 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 same of any such article, and includes also an attempt to sell any such article."
Thus Section 2(xiii) gives a special definition of 'sale' which specifically includes within its ambit a sale for analysis. The definition of sale is an inclusive definition and it covers within its fold an agreement for sale, an offer for sale, the exposition of an article for sale or the possession of an article for sale, as also an attempt to sell any such article. If it is shown that the accused was, at the material time, in possession of an article of food and the possession at the relevant time was for the purpose of sale, may be for cash or on credit or by way of exchange or may be a sale of sample for analysis it would be a sale within the meaning of the term as defined in Section 2(xiii) of the Act. It is true as contended by Mr. Desai that mere possession of an adulterated article of food is not a sale but if, in a given case, it is shown that the possession of an adulterated article of food was for sale that would be a sale within the meaning of the term. Coming back to the question of the powers of the Food Inspector of taking the sample, I must say that Mr. Desai had relied upon the definition of the term "sample" as defined in Section 2(xiv) of the Act which defined "sample" as meaning "a sample of any article of food taken under the provisions of this Act or of any rules made thereunder." Relying upon this definition, Mr. Desai urged that the taking of the sample from a person filing in one of the three characters aforesaid must be in the manner prescribed. According to Mr. Desai, the power of taking a sample is a conditional power which must be exercised in the manner required by law. Contends Mr. Desai that sub-section (7) of Section 10 and clause (a) of sub-section (1) of Section 11 of the Act lay down the manner in which the power is to be exercised. Now sub-section (7) of Section 10 provides that: "Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures." Clause (a) of sub-section (1) of Section 11 provides the procedure to be followed by the Inspector taking a sample of food for analysis. Clause (a) provides that he shall give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample so analysed. The notice or the intimation is to be given to the person from whom the sample is taken and that is in the prescribed Form VI under Rule 12 of the Rules. Rule 12 of the Prevention of Food Adulteration Rules, 1955, which will hereafter be referred to as "the Rules" provides for the form of intimation of the purpose of taking sample. Thus, Sections 10(7) and 11(1)(a)(i) of the Act, which respectively make it necessary that one or more persons must be kept present at the time and that a notice in writing of the Food Inspector's intention to have the sample analysed, must be given has relation to the particular act or action of the Food Inspector, viz., the taking of a sample of any article of food from a person filling in one or the other of the three characters laid down in clause (a) of sub-section (1) of Section 10 of the Act. The legislative intent will be clearer from the specimen form No. VI under Rule 12 which is a statutory rule. The relevant form is to state:
I have third day taken from the premises of ........... situated at ................ samples of the food specified below to have the same analysed by the Public Analyst, for .................
Details of food.
Thus, it is clear that the manner referred to by Mr. Deasi is the one to be observed in taking the sample of an article of food for analysis. If, in a given case, as in the case before me, the accused throws away the milk and thus renders it impossible for the Food Inspector to take the sample and to have the sample analysed the question of taking the sample of food and further of taking it in the manner required by law, viz., under Section 10(1)(a) and Section 11(1)(a) of the Act does not arise. In this view of the matter. I cannot accept Mr. Desai's contention that there is no power in the Food Inspector, unless the article is for sale, and there is no exercise of the power till the formalities of the power under Section 10(7) and Section 11(1)(a) of the Act are complied with. The scheme of the Act and the Rules and especially of Sections 10 and 11 of the Act and Rule 12 of the Rules indicate that Section 10(7) and Section 11(1)(a) can have no play in a case where the accused throws away the milk and prevents a Food Inspector from taking a sample as authorised by the Act. In the instant case, however, the evidence of Food Inspector which has been found by the learned Magistrate to be reliable and which is acceptable to me shows that the two panchas were kept present at the relevant time.
9. This takes me to the consideration of the second, third and fourth circumstances, which, according to Mr. Desai, must necessarily be proved to bring home the offence under Section 16(1)(b) of the Act to the accused. It may be remembered that these circumstances or ingredients as I would like to call them, are (i) the knowledge on the part of the accused that the Food Inspector is to proceed to take an article of food, (ii) intention on the part of the accused to effectively hinder or stop the Food Inspector from taking sample, and (iii) successful implementation of that intention by some physical obstruction, threat or assault on the Food Inspector. Mr. Desai has contended that the accused must be shown to have knowledge at the relevant time that Food Inspector is to take a sample of the article of food. His submission further was that the accused must be shown to have the knowledge that the Food Inspector was acting in discharge of his duty as a Food Inspector. On the question of intention and successful implementation of the intention Mr. Desai has contended that the prosecution must prove the intention of the accused to effectively hinder or stop the Food Inspector from taking the sample. Thus, in Mr. Desai's submission, in order to succeed in the case, the prosecution must first establish knowledge on the part of the accused that the Food Inspector is to take the sample of food from him in his capacity as a Food Inspector and in discharge of his duty as such. So far, I am in agreement with Mr. Desai. The knowledge to be proved is that the complainant is a Food Inspector who is authorised to take the sample and that he proposes to take the sample of the Article of food from him for analysis.
10. As regards the intention of the accused, Mr. Desai's contention is not a simple proposition that the intention must be to prevent the Food Inspector from taking a sample as authorised by the Act, but Mr. Desai says such intention must be to effectively hinder or stop the Food Inspector from taking the sample. I am not inclined to accept such a qualified or restricted proposition of law, although in my opinion, it must be shown that the intention of the accused was to prevent the Food Inspector from taking a sample of food in such a case. Mr. G. M. Vidyarthi, learned Assistant Government Pleader, on the contrary, contends, relying on Section 19(1) of the Act that 'mens rea' need not be established. Now, section 19(1) of the Act on which reliance is placed by Mr. Vidyarthi deals with defences which may or may not be allowed in prosecution under the Act, Its operation is limited to offence under Section 16(1)(a) pertaining to the sale of any adulterated or misbranded article of food. What is not available to the defence under the section is to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser who purchased the said article from him was not prejudiced by the sale and this places upon the defence the burden of showing that the accused had no mens rea to commit an offence under Section 16(1)(a) of the Act. But Section 16(1)(b) of the Act provides penalty for an act amounting to 'preventing' a Food Inspector from taking a sample as authorised by the Act. The act of an accused resulting in preventing a Food Inspector from takin a sample must be a deliberate act of the accused. Accidental or unintentional act of an accused resulting in such prevention cannot create a criminal liability. The language of Section 16(1)(b) does not lend support to the contention that given an innocent vendor will be criminally liable. As observed by the Lord Chief Justice of England "It is in my opinion of utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that, unless the statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, an accused should not be found guilty of an offence against the criminal law unless he has got a guilty mind, Brand v. Wood, (1946) 110 JP 317 at p. 318, approvingly, referred to by the Supreme Court in the case of Revula Hariprasad Rao v. State AIR 1951 SC
204." In my opinion, there is nothing in Section 16(1)(b) to show that either by clear intendment or by necessary implication mens rea as a constituent part of the crime is rules out for the offence punishable under clause (b).
11. As regards the fourth ingredient, Mr. Desai's submission, it may be remembered, was that assuming that there was an intention on the part of the accused person, to prevent the Food Inspector from taking the sample, such intention must be accompained by (i) some physical obstruction, (ii) threat, or (iii) assault on the Food Inspector. In Mr. Desai's submission, unless one of the three accompainments to the intention is proved, there is no offence. I understand Mr. Desai to say that there must be an overt act of one of the three types evincing such intention. In support of his contention. Mr. Desai has strongly relied upon a decision of this High Court in the Chaturbhai (1966) 7 Guj LR 120 = (AIR 1967 Guj 61) delievered by Mr. Justice Raju. In that case, the State had filed an appeal against an order of acquittal under the Prevention of Food Adulteration Act, 1954. The prosecution case was that the accused, who was sitting in his shop when the Food Inspector, visited it and asked for a sample of milk, refused to give a sample and left the shop and thus prevented the Food Inspector from taking the sample. The evidence disclosed that the respondent had raised his hand at the time. But there was no evidence to show whether the raising of the hand amounted to a threat or an assault and the learned Judge, therefore, left the circumstances out of account. It was observed that the Food Inspector has got powers under Section 10 of the Act to take a sample and, therefore, mere refusal would not amount to preventing the Food Inspector from taking a sample. In the opinion of the learned Judge, there was also no evidence of any threat as was in the case of Cort and Gee v. Ambergate, Nottingham and Boston and Eastern Junction Rly., Co., (1851) 20 LJ QB 460 at p. 465. It was observed: "Whbether the Food Inspector was prevented or not would depend on the case in order to constitute the offence. There must be a physical obstruction or a threat or an assault. Mere refusal to give a sample would not amount to such prevention. Nor would merely leaving a shop, we do not know for what purpose, amount to prevention. The acquittal appeal is, therefore, dismissed." It appears from the observations of Raju, J., that a mere refusal to give a sample or merely leaving a shop would not amount to preventing a Food Inspector from taking a sample. As observed by the learned Judge in the case, whether the Food Inspector was prevented or not would depend on the facts of the case. It is not, therefore, correct to say that the decision lays down a rule of law which concludes the point before me. The case in (1851) 20 LJQB 460 referred to by Raju, J., is the one reported in (1851) 85 RR 361 at p. 369 wa sin relation to an action for damages brought by the vendor against the purchaser for breach of an executory contract to manufacture and supply the goods, namely, railway chairs, from time to time, to be paid for after delivery and where the purchaser, having accepted and paid for a portion of goods, gave notice to the vendor not to manufactrure any more as the purchaser had no occasion for them and will not accept or pay for them and the vendor having been desirous and able to complete the supply. It was contended by the plaintiffs that the defendants did prevent and discharge the plaintiffs from supplying the residue of the chairs and from the further execution and performance of the said contract. The defendants disputed that the plaintiffs were ready and willing to perform their contract and contended that the delay and final cessations took place with their concurrence. It was contended that the only modes in which the plaintiffs could exonerate themselves from the conditions precedent were either a competent dispensation or an actual prevention by the covenantee. It was contended that they did not prevent or discharge the plaintiffs from supplying the residue of the chairs. It was contended that "prevent" must mean an obstruction by physical force, and in answer to a question from the Court, the reply was that it would not be a preventing of the delivery of goods if the purchaser were to write in a letter to the person who ought to supply them. "Should you come to my house to deliver them. I will blow your brains out." It was contended that there could be no readiness and willingness to perform the contract unless all the chairs were finished and tendered; that to prevent must be by positive physical obstruction, and that there can be no discharging unless by an instrument under seal. On a consideration of the various contentions raised. Lord Campbell, Ch. J. Held that the defendants had refused to accept the residue of the goods and that they had prevented and dishcarged the plaintiff from manufacturing and delivering them and therefore, the vendor was entitled to maintain an action against the purchasers for breach of the contract. It is difficult to see how the decision can assist Mr. Desai's contention.
12. Mr. Vidyarthi had, in this connection rightly relied upon a decision of the Division Bench of the Bombay High Court consisting of Gajendragadkar and Vyas JJ., in State v. Kanu Dharma Patil, AIR 1955 Bom 390, an appeal against an order of acquittal wherein the Division bench had an ocasion to consider the import of the term 'prevent' used in Section 4 of the Bombay Harijan Temple Entry Act (35 of 1947), which provides, inter alia, that whoever (i) prevents a 'Harijan' from exercising any right conferred by this Act, or (ii) molests or obstructs or causes or attempts to cause obstruction to a Harijan in the exercise of any such rights shall on conviction, be punished as laid down in that section. The Division Bench took the view that Section 4 of the Act does not necessarily denote the use of physical force or a threat of physical force. It was observed that "What consitutes the contravention of the provisions of Section 4 would naturally be a question of fact in each case. But, it would be going too far, we think, if we were to accept Mr. V. S. Desai's argument that unless the person charged under Section 4 is shown to have used physical force or threatened to use physical force, he cannot be held to be guilty under Section 4(1)." The Division Bench then referred to the object and the purpose of the Act and then to the dictionary meaning of the word "prevent" in Stroud's Judicial Dictionary and observed:
"x x x x x As a matter of legal construction it is not possible to hold that the word "prevent" means only an obstruction by physical force. Stroud's Judicial Dictionary makes this position clear. To prevent says the author, does not mean only an obstruction by physical force, e.g., in the phrase that one party to a bargain "prevented or discharged the other from fulfilling his part thereof." It is not intended to suggest that the prevention is a result of physical obstruction.
In some cases, prevention may take the form of physical obstruction. The gates of the temple may be closed or the entry of a Harijan in the temple may be barred by putting a physical obstruction in his way. But, it is equally possible that in some cases where Harijans who are not fully consicous of their rights and not aware of the strength of their cause seek to enter the temple in a timid and diffident way, they might be prevented from making an entry merely by the use of words storng and loud."
The Division Bench then dealt with the contention which was raised in the case, viz., that the provisions of the Act which is a penal statute, must be strictly enforced and observed:
"It is a matter of utmost importance that the provisions of this Act must be strictly enforced. Undoubtedly Section 4 is a part of a penal statute and it must be construed in favour of the accused. But even while construing the statute in favour of the accused, we cannot give to the material words used in Section 4 the very narrow and the very unreasonable construction for which Mr. Desai contends."
The Division Bench was in the case concerned with a case wherein the acquitted respondent had prevented a harijan boy from entering a temple. The prevention was not a physical one, but was by use of strong and loud words resulting in the Harijan boy getting out of the temple without obtaining the Darshan of the deity. This decision of the Division Bench shows what exactly is the connotation of the word "prevent". It makes no difference that the word is to be found in the Bombay Harijan Temple Entry Act, Mr. P.D. Desai has, however, tried to distinguish this decision by saying (i) that it takes into account the purpose and object of the Act; (ii) that it deals with Harijans who are as a class timid; and (iii) that the context therein was different, whereas the Gujarat decision of Raju, J., directly covered the case. In my opinion, the Bombay decision applies with equal force in this case. Having regard to the nature and design of the Prevention of Food Adulteration Act, the object of the Act and the dictionary meaning of the Word 'prevent' which does not mean only an obstruction by physical force, the word 'prevent' when considered the proper context in which it is used in Section 16(1)(b) of the Act cannot be given the narrow or restricted meaning canvassed by Mr. Desai. To do so would be giving to the material words used in Section 4 a very narrow and very unreasonable construction. As aforesaid, the decision of Raju, J., is not applicable here. In my opinion, it is sufficient if in a given case, an accused person with the intent to prevent a Food Inspector from taking the sample does an act which renders it impossible for the Food Inspector to take a sample as authorised by the Act. A positive action in the form of a physical obstruction, threat or assault is not necessary to constitute the act of prevention so as to constitute an offence within the meaning of Section 16(1)(b) of the Act. There needs be no overt act. I am further fortified in this view by the observations of a Division Bench of the Allahabad High Court in the case of Municipal Board, Sambhal v. Jhamman Lal, AIR 1961 All 103, laying down that in cases of prevention an overt act is not necessary. The relevant discussion to be found at p. 104 reads:
"it was contended by learned counsel for the respondent that beforee there could be prevention, there should be some kind of overt act. 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."
A similar view has been taken by the Madras High Court in Public Prosecution v. Murugesan AIR 1954 Mad 199. It was a case where a person by his action effectively prevented the officer from taking the sample. It was held: "No overt act was necessary to make out 'preventing' under Section 14(3) of the Act," I am in respectful agreement with the Bombay, Allahabad and Madras view. As aforesaid in my opinion, no overt act is necessary to constitute the act of preventing within the meaning of Section 16(1)(b) of the Act. To accept Mr. Desai's contention that the intention of the accused to prevent the Food Inspector from taking the sample must necessarily be accompained by some physical obstruction, threat or assault on the Food Inspector would amount to saying that there must necessarily be an overt act, a proposition which is unacceptable to me.
13. I would now proceed to consider Mr. Desai's submissions on merits of the case.
14. On merits Mr. Desai's submission was that he wished only to say (i) that the prosecution has not been able to prove, beyond reasonable doubt, that the accused was, either selling, offering for sale, exposing for sale or having possession of the article for sale; (ii) that there was no reliable evidence that the power was no reliable evidenc ethat the power was exercised in the manner required; and (iii) that it was not proved that the throwing away of the milk cans was a physical obstruction. There is no merit in any of these submissions. As regards the last two facts of Mr. Desai's argument, I need merely recall my observations made earlier, viz., (i) that in such cases it is not necessary to show that there was a physical obstruction, and (ii) that in a case where an accused renders it impossible for a Food Inspector to take a sample of food, there is no question of exercising the power in the manner laid down in Section 10(7) and Section 11(1)(a) of the Act. Even then, as I shall presently see, the evidence of the Food Inspector clearly brings out the fact that the panchas were kept present at all material times. The evidence on the point has been found to be trust worthy by the learned Magistrate and is acceptable to me. Therefore, the second and third parts of Mr. Desai's contention on merits do not survive. The evidence, as I shall presently see, also leads to a resonably certain legal inference that the accused was in possession of milk for sale at the time and as such, the first part of the contention will also not survive.
15. Now, the evidence examined in the trial Court consists, as aforesaid,of the deposition of the Food Inspector, supported as it is by the evidence of the peon of the Food Inspector who was all along with him and is further corroborated by the evidence in the shape of the panchnama, which is proved to have been signed by the panchas who acknowledge their signatures to the panchnama. I have set out earlier, while making out a statement of the prosecution case, the evidence in chief of the Food Inspector and I need not repeat it. I may only say that the evidence discloses that the Food Inspector had seen the accused with two milk cans and measures on his cycle at 5-30 A.M. of the relevant day, that he had seen him selling milk, that he had called the two panchas, that he had asked the accused about the quality and the rate of the milk, that the accused had refused to sell the milk and thereupon he had revealed to the accused his identity as a Food Inspector and requested him to give milk on payment of the price, but the accused did not sell the milk meaning that he did not enable the Food Inspector to take the sample of the milk and instead threw away the milk. No material infirmity is brought out in the cross-examination of the Food Inspector. On the contrary, he has stated that he took down the name of the accused as was given by him and this was after due verification, he has repelled the defence suggestion that the man obstructing the Food Inspector from taking the sample was not the accused. He has also repelled the suggestion that the panchnama was made afterwards. Except for throwing some challenge as regards the identity of the accused in the cross-examination, the other material facts stated by by the Food Inspector in his evidence in chief have gone unchallenged. The identity of the accused is established beyond reasonable doubt and this is not a case of mistaken identity. Panchas Ramkishan and Vadilal admit their signatures to the panchnama Ex. 3 of the factum of milk having been spilled on the ground, although they prevaricate on some other part of their evidence. So far they support the evidence of the Food Inspector. The evidence of the peon supports the version of the Food Inspector in all material particulars. It was, however, contended by Mr. Desai that the version of the two different in so far as the Food Inspector stated that he had seen the accusd selling the milk and the peon stated that he had seen the accused going on his cycle. But, reading the evidence of the peon as a whole, I do not find any material variation so as to introduce any infirmity in the evidence of the peon. In any case, the two versions are not inconsistent. The evidence of the Food Inspector appears to me to be trustworthy. His is a natural version of the events that had happened on that early morning. It is not shown that the Food Inspector had any bias against the accused, nor is any such case made out against the peon. Even apart from the evidence of the two panch witnesses who have been declared hostile, the evidence of the Food Inspector receives corroboration from the material circumstances that the milk was found spilled on the ground at the time when the panchnama, Ex. 3 was drawn up. Again, the early hour of the day and the manner in which the accused was seen at the time with two milk cans and measures on his cycle and going in the blocks in Bapunagar are further circumstances which lend further corroboration to the Food Inspector's version. The evidence leaves no manner of doubt that the accused was in possession of milk for sale and that he had thrown away the remaining part of the milk of the two cans on the ground and this was with the deliberate intention to thereby prevent the Food Inspector from taking the sample of milk for analysis, which would have exposed him to a criminal charge of sale of adulterated milk. The accused had thus made it impossible for the Food Inspector to exercise his powers under Sections 10(1)(b)(a), 10(7) and 11(1) of the Act. As aforesaid, an overt act is not necessary for the purpose. However, in this case, the very act of the accused in thorwing away the milk when the Food Inspector proposed to take the sample of the milk amounted to an overt act. In any view of the matter, therefore, the learned trying Magistrate was right in convicting the accused of the right in convicting the accused of the offence punishable under Section 16(1)(b) of the Act. I must accordingly maintain the order of conviction and sentence now under appeal before me.
16. Appeal is dismissed. The appellant to surrender to his bail.
17. Appeal dismissed.