In Re: Valaguru Asari

Krishnaswami Reddy, J.—The revision petitioner has been convicted u/s 16(1)(b) of the Prevention of Food Adulteration Act and

sentenced to pay a fine of Rs. 100, in default to undergo simple imprisonment for two months by the District Magistrate, Tiruchirapalli. On appeal,

the Sessions Judge. Tiruchirapalli, confirmed the conviction and sentence. The following facts are not disputed before me:--

The Food Inspector. (P. W. 1) found the petitioner carrying milk in a chombu covered with a tumbler at about 8 a.m. on 13-3-1965 in the

outskirts of Manapparai. P. W. 1 called the petitioner for the purpose of taking sample milk when the petitioner was going at a distance of half a

furlong from him. The petitioner poured the entire milk from the chombu in the paddv field, threw away the chombu and the tumbler and ran away.

P. W. 1 seized the chombu and the tumbler and filed a complaint against the petitioner alleging that he prevented him from taking the sample.

It is contended by the learned Counsel appearing for the petitioner that the conviction u/s 16(1)(b) of the Prevention of Food Adulteration Act

cannot be sustained for the reason that there was nothing to show from the evidence of the Food Inspector that he either demanded sample from

the petitioner or that he expressed his intention to take sample from the petitioner. There appears to be substance in the contention of the learned

counsel.

It is necessary, to appreciate the contention of the learned counsel, to set out the relevant portions of Section 16 of the Prevention of Food

Adulteration Act.

(1) If any person -- (a) ......... (b) prevents a food inspector from taking a sample as authorised by this Act or (c) prevents Food Inspector

from exercising any other power conferred upon him by or under this Act, or ...... he shall ...... be punishable. .........

Section 16(1)(c) deals with preventing the Food Inspector from exercising any other power conferred on him under the Act This clause deals

generally, since a Food Inspector has got several powers to exercise. Though the power of taking sample is also one of the powers conferred on

him under the Act, It is specially carved out from the other powers and specifically brought in clause (b) of Section 16(1). It is therefore, necessary

for the prosecution to show that the person who prevented the Food Inspector from exercising this power, knew, to bring him within the mischief

of Section 16(1)(b), that the Food Inspector wanted to take sample from him. He may be made known either by a demand of sample or a

communication of the intention to take sample, by the Food Inspector. It must be strictly proved that the accused, knowing the Food Inspector

wanted to take sample, prevented the Food Inspector deliberately from taking such sample. There is no evidence that the Food Inspector either

expressed his intention to the petitioner that he was going to take sample or that he, demanded the sample from the petitioner. In the absence of

such evidence, the conviction u/s 16(1)(b) of the Act cannot be sustained. However, he would be liable u/s 16(1)(c) of the Act. The powers of the

Food Inspector are enumerated in Section 10 of the Act. u/s 10, Clause (3), any Food Inspector may exercise the powers of a Police Officer u/s

57 Cr. P. C. When the Food Inspector called the petitioner while he was taking milk with him. he had prevented the Food Inspector from coming

to him and ascertaining his name and residence and other details, by his pouring the milk, throwing the choumbu and tumbler and running away.

The learned Public Prosecutor contended that though the Food Inspector had not communicated his intention to take sample from the petitioner,

he had stated on oath that he called the petitioner with the intention of taking sample from him and that this would suffice to bring him within Section

16(1)(b) of the Act I am unable to agree with his contention. He relied upon the following decisions in support of his contention: Public Prosecutor

Vs. Murugesan, . Municipal Board, Sambhal Vs. Jhamman Lal and Another, . Perumal Konar. in re 1964 MLJ Crl 661 U965 (1) Cri LJ 389 and

Nazim Vs. State, .

In the first three decisions, there was a demand of sample by the Food Inspector. In Public Prosecutor Vs. Murugesan, , the maistrv and a

cooly of a Panchavat Board deputed by the Sanitary Inspector to take sample of milk asked the accused to give sample; but the accused instead

of giving a sample went into the hotel and handed over the milk to a servant who poured it into a milk pan containing other boiled milk. The

conviction of the accused was upheld for having prevented the officer from taking the sample. In Municipal Board, Sambhal Vs. Jhamman Lal and

Another, , the Food Inspector asked the accused to give him a sample of mustard oil; but he left the shop promising to come shortly. The Food

Inspector waited for some time and the accused did not turn up. The accused was prosecuted for having prevented the Food Inspector from

taking the sample by abruptly leaving the shop without giving him the sample. The conviction was upheld. In 1964 MLJ Crl 661 (1965 (1) Crl LJ

389, the Food Inspector stopped the person carrying milk and demanded sample for analysis: hut the accused instead of complying with the

demand of the officer placed the can inside the hotel, took to his heels and ran away. The accused was prosecuted under both the clauses 16 (1)

(a) and 16 (1) (c) of the Act. The conviction was upheld under both the clauses by Anantanarayanan, J., (as he then was). Anantanarayanan, J..

held that the accused was clearly guilty of an offence u/s 16(1)(c) of the Act as the Food Inspector was prevented by the accused from exercising

any other power conferred on him by or under the Act. The conviction u/s 16(1)(b) was also confirmed. In these three cases, it is clear that there

was a demand for sample by the Food Inspector.

In this case, as already stated, there was no demand by the Food Inspector; nor he expressed his intention to take sample. Hence, these

decisions do not support the contention of the learned Public Prosecutor.

In Nazim Vs. State, the accused who was passing by the road with a bucket of milk in his hand was asked by the Food Inspector to stop, but

the accused instead of complying with the request took to his heels and when chased by the peon threw away the milk from which the Food

Inspector intended to take a sample. The accused in this case was charged u/s 30 of the U. P. Pure Food Act and Rule 4 framed under the said

Act. Section 30 of the U. P. Pure Food Act is substantially similar to that of Section 16(1)(c) of the Act. There is no provision in the U. P. Pure

Food Act similar to that of Section 16(1)(b) of the Act. Section 30 of the U. P. Pure Food Act U as follows:

A person who willfully obstructs any person acting in the performance of any duty under this Act or any rule, by-law, order or warrant made or

issued thereunder, shall be guilty of an offence"".

This decision may not be of any use for the contention of the learned Public Prosecutor as we are concerned in this case with Section 16(1)(b) of

the Act. This decision will, of course, have relevancy if the petitioner was prosecuted u/s 16(1)(c) of the Act.

As stated already, if the petitioner was prosecuted u/s 16(1)(c) of the Act, he would have been guilty of having prevented the officer from

exercising his powers conferred on him by the Act. I am not inclined to alter the conviction to Section 16(1)(c) of the Act as the complaint was not

laid under the said section and opportunity to meet the charge u/s 16(1)(c) was not given to the petitioner by the trial Court.

The revision petition Is allowed and the petitioner is acquitted. Fine amount, if paid, will be refunded.