Raj Kumar vs The State of Haryana

Ujagar Singh, J.—After trial of the revision-Petitioner for an offence punishable u/s 16(1)(c) of the Prevention of Food Adulteration Act, 1954 (shortly the Act), he was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and in default of payment of fine, he was directed to suffer R.I. for a further period of two months, by the Sub Divisional Judicial Magistrate, Kaithal vide order dated 25.11.1982. The Petitioner preferred an appeal against his conviction and sentence before the Court of Session, but the same was dismissed. This criminal revision has been filed to challenge the order of the trial Court, as also of the appellate Court.

On 29-11-1977 Food Inspector Moti Ram (PW1) visited the shop of the Petitioner he was accompanied by Dr. V.K. Malhotra and Dr. R.C. Mittal. About 30 kg Boora was found contained in a Petti (wooden box) for public sale. After disclosing his identity, the Food Inspector demanded a sample out of the Boora for analysis purpose. The Petitioner refused to give the sample and fled away from his shop. This act of the Petitioner is said to bring the act within the definition of the offence "of preventing the Food Inspector from taking a sample as authorised by the Government."

Learned Counsel for the Petitioner at the very outset has argued that there was a mere refusal on the part of the Petitioner to give the sample and this act does not amount to preventing the Food Inspector from taking a sample. According to him, the Food Inspector derives the powers to take sample of article of food from Section 10 of the Act. Under this section, a Food Inspector has the power to take sample 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; and (iii) a consignee after delivery of any such article to him. The argument is that Sub-clause (i) of Clause (a) of Sub-section (1) of Section 10 of the Act would apply, if at all to the circumstances of the present case. To prove this, the prosecution has to fulfil the requirement of the person from whom the sample is to be taken to be selling such an article.

The next argument of the learned Senior Advocate for the Petitioner is that the evidence of the prosecution witnesses is discrepant and no definite conclusion can be reached.

The learned Counsel for the State has supported the conviction and sentence of the Petitioner on the ground that the refusal to give sample to the Food Inspector will amount to preventing him from taking the sample. He further laid emphasis that all the prosecution witnesses examined to support its version are Government officials and most unlikely to tell lies for falsely implicating the Petitioner.

I have considered the arguments of the learned Counsel for the parties and also gone through the statement of the prosecution witnesses. The requirements of the offence charged are simple and once the Court arrives at the conclusion that the Food Inspector was prevented by a person from taking a sample, there can be no escape from concluding that he is guilty of committing the offence. Ranging from the case of Public Prosecutor Vs. Murugesan, till recently, many cases have been cited. The earlier authorities took a favourable view that mere refusal does not amount to preventing a Food Inspector from taking a sample. Full Bench of Rajasthan High Court in Narain Prashad v. State of Rajasthan and Anr. 1978 Cr. L.J. 1445, relying upon a Division Bench judgment of Allahabad High Court in Jaunpur Municipality v. Maluk Das Gupta and Anr. 1971 Cr. L.J. 705, reproduced the following observations:

Thus the consensus of the opinion of almost all the High Courts barring a few on the point is that Section 16(1)(b) of the Act makes a person liable to punishment, who prevents the Food Inspector from taking the sample as authorised by the Act. Section 10(1)(a)(i) gives the Inspector power to take sample of article of Food from any person selling such article. Sub-section 2 of Section 10 gives the Food Inspector power to enter any place where the article of food is exposed for sale. Sub-section (4) of Section 10 provides for seizure of adulterated food. The Inspector has also power to break open the door or any package in which the article of food is kept. For all the purposes, the Inspector has power to exercise his power of search and seizure, of a police officer under the Code of Criminal Procedure. The Food Inspector is also authorised to exercise powers of a police officer u/s 57 of the Code i.e. to arrest an offender, if he refuses to tell his name and residence. Section 11 prescribes the procedure to be followed by the Food Inspector while taking sample. Therefore, the Food Inspector can follow one of the two modes; one where the vendor co-operates, the other when he refuses to co-operate. To prevent the Food Inspector from taking a sample, the accused must do something which makes it impossible for him to take the sample. The prevention does not mean only obstruction by physical force, but it may even involve threat. The dealer can also prevent a sample being taken by destroying or otherwise making non-available the article of food itself or by making it impossible for the Food Inspector to take the sample by creating a row. Sometime the act of simple refusal may be accompanied by such a conduct and demeanour that it may amount to preventing but mere inaction on the part of the vendor in not giving the sample would not tantamount to preventing the Food inspector from taking the sample.

Earlier view of the Division Bench of that Court in Municipal Council, Jaipur v. Mangila 1975 Cri. L.J. 1728, was held to represent the correct statement on the subject. In this Full Bench authority, judgments of Madras, Allahabad, Madhya Pradesh, Patna, Bombay, Punjab, Gujarat and Andhra Pradesh has been referred to. Out of these authorities, two authorities one of the Patna High Court and the other of Bombay High Court had taken a different view. In case Bishan Dass Telu Ram v. State AIR 1957 P&H. 99, the learned Single Judge had taken the view that refusal to give sample even on payment is not the same thing as prevention which need not have an element physical of obstruction but involves some act which hinders an Inspector from taking a sample. But this view was over-ruled by a Division Bench of this Court in Krishna Lal and Ors. v. State of Haryana (1978) 5 Cr. L.T. 235, wherein the facts were that the Petitioners were present on the premises of Messrs Gupta Ice Factory and were in possession of Ice candies for purposes of public sale when the Food Inspector reached there. They informed him that the space and equipment before the manufacture of Ice Candies had been given over to a contractor and on the false pretence of calling him to the premises, all the three of them slipped away from the factory one by one neither returned thereto nor brought the alleged contractor there. After referring to various authorities and discussing them in detail it was observed as follows:

Now the word ''prevents'' as used in Section 16(1)(c) and (d) is not to be construed in isolation and one cannot, lose fight of the preceding and relevant provisions of Sections 10 and 11 of the Act. It is evident from the aforequoted provisions of Section 10(1) that the Food Inspector is empowered to take samples from three classes of the person and the very first due is the person selling such an article. In the context of taking a sample from the seller, therefore, the procedure prescribed by Sections 10 and 11 and the rules framed under the Act at once comes into play. Section 10(3) lays a statutory duty on the Food Inspector to pay to the seller the cost of the sample calculated at a rate at which the article is usually sold to the public. Clause (a) of Sub-section (1) of Section 11 makes it incumbent on the Food Inspector to give a notice in writing then and there to the person from whom he has taken the sample. Clause (b) then obliges the Food Inspector to divide the sample so taken into three parts and after marking and sealing the same to take the signatures or thumb impression of the person from whom the sample has been taken in the manner prescribed. Rule 12 as amended of the Prevention of Food Adulteration Rules, 1955 lays down that when an Inspector takes a sample of an article for the purpose of analysis, he shall give notice of his intention to do so in writing in form VI then and there to the person from whom he takes the sample. Form VI referred to above has in terms been laid down in appendix ''A'' to the Prevention of Food Adulteration Rules, 1955. An overall reading of the aforesaid provisions, therefore, makes it plain that both the presence and the participation of the seller in taking a sample u/s 10(1)(a)(i) is essentially envisaged by the Act and the rules framed thereunder. Therefore, where a seller slips away and evades to participate in the necessary proceedings, the Food Inspector is obviously prevented from taking the sample in accordance with the law. In the absence of the seller neither the price of the article can be tendered to him nor the notice required by law can be delivered nor the signatures or the thumb impressions of the seller can be taken on the sealed samples. It is, therefore, plain that in such a situation the Food Inspector is effectually hindred from complying with the provisions of the Act or to put it in other words the taking of a sample from a person selling such an article is frustrated or circumvented. Applying the ordinary dictionary meaning, therefore, it follows that in such a situation, the Food Inspector in fact and in law is prevented from taking a sample in accordance with the statutory provisions. To ray mind the situation would also be identical where the seller, though physically present, determinedly refuses to participate, co operate or comply with the mandate of the law.

.... 21. It appears to me that the main ground on which this case turns is that the words ''refusal'' and ''prevent'' have different shades of meaning because the underlying concept of refusal is to decline to do a certain thing by a person himself whereas the concept of prevention is to offer hindrance or obstruction of some kind to another. Now if the two words are viewed in isolation which primarily is an exercise in etymology then there can perhaps be no dispute with the proposition that the words ''refusal'' and ''prevent'' are not synonymous. However, herein we are more concerned to see the factual and the legal effect of a refusal by a seller or a consignee to give a sample in the particular context of the provisions of the Prevention of Food Adulteration Act and the rules framed thereunder It is, therefore, that one does not find adequate justification or occasion to introduce and lay great store on the finer nuances of a shade of difference in the meaning of these two words when viewed in abstract: As I had occasion to observe earlier a word in a statute is not to be construed as if in a vacuum and it necessarily takes its shade and hue from the context in which the same is placed. What we are concerned here are the factual consequences and the legal result which flows from such refusal. If the determined refusal by a seller to give a sample in actual practice effectually hinders the Food Inspector to take a sample from a person selling the same as is provided by Section 10(1)(a)(i) then the inevitable legal consequence of such refusal is to necessarily prevent the Food Inspector to exercise his powers in accordance with the said provision of the statute. This legal result is in my view clearly within the mischief of the word ''prevent'' as used in Section 16(1)(c) and (d).

Another case Om Parkash v. State of Punjab 1983 P.F.A.J. 516, came up before this Court wherein the Petitioner pushed away the Food Inspector and then slipped away and the view taken by the Division Bench was followed. A different view was taken in Chuni Lal v. The State of Haryana (1983) 10 Cr. L.T. 156, wherein the Petitioner had gone away on the pretext of urinating and did not return and it was held that the act of the Petitioner would not tantamount to refusal to deliver the sample, but in that case the above Division Bench decision was not referred to. Ulatimately, I will refer to Rajinder Pershad Vs. State of Haryana, wherein the Food Inspector went to the grocery shop of the accused along with two witnesses and after disclosing his identity tendered the notice and cash and asked for a sample of Dhania kept for sale in the shop and the accused bolted away from the shop under the pretext of passing urine without accepting the notice and the cash. The view of the apex Court was that the offence punishable u/s 16(1)(c) had been committed and no other overt act was necessary to constitute the offence. The above said Full Bench decision of Rajasthan High Court was over-ruled and the view taken by Division Bench of this Court in Kishan Lal''s case (supra) was affirmed as the view of the Division Bench was followed in Rajinder Parshad''s case (supra) by the trial Court. In this view of the matter, this point need not be further considered and it has to be held that the act of the Petitioner amounted to preventing the Food Inspector from taking the sample.

The evidence in this case is contradictory In the complaint, the allegation is that the Petitioner refused to give the sample and thus he prevented the Food Inspector from taking the sample of Bura. In his statement PW1 Mr. Moti Ram stated that when he wanted to take a sample the Petitioner refused to give it saying that he will not give the sample. Apart from this, he did not say anything. Saying this the Petitioner ran away after leaving the shop and hid himself somewhere. PW2 Shri R.C. Mittal stated that when the Food Inspector wanted to take the sample, the Petitioner told the Food Inspector that his father was not on the shop and he would go to call him and thereafter the Petitioner left the shop and did not come back. This witness stated that he did not know the Petitioner earlier PW3 Shri R.C. Malhotra stated that when the Food Inspector demanded a sample, the Petitioner refused to give it and went away from the shop. In cross-examination this witness stated that he did not remember as to what the Petitioner was doing at that time. He further stated that the Petitioner left the shop and went away and did not hide himself. This witness admitted that he did not know the Petitioner earlier and did not see the Petitioner running away. In this view of the contradictory factual evidence, it is difficult to arrive at a correct conclusion as to what was the actual answer of the Petitioner to the Food Inspector and it cannot be said as to what act of the Petitioner amounted to preventing the Food Inspector from taking the sample. As a matter of fact, there is no evidence that the Petitioner is a vendor selling such article within the meaning of Section 10(1)(a)(i) of the Act. Before any offence is committed, the prosecution has to prove that the person from whom sample of any article of food has to be taken should be a person selling such article. It has come on the file that the Petitioner''s wife owns a car and the Petitioner is running a taxi. The Petitioner has examined his father DW1 Banarsi Dass in support thereof. Exhibit D.1 is a certificate issued by the District Transport Officer, Patiala, that car No. PUP 3458 was transferred in the name of Smt. Santosh Rani wife of the Petitioner and Smt. Salochana Rani wife of Sohan Lal of Raghav Majra (Patiala) on 1st of April, 1977. The allegation of the Petitioner is that the Food Inspector used to ask him for this car and there was some dispute between them. This also makes it quite doubtful whether the Petitioner runs the shop and thus is a seller of the articles or not. In my view, the matter is not beyond doubt.

In view of the observations made above, I accept this revision, set aside the orders of conviction and sentence and acquit Petitioner of the charge Fine, if paid, be refunded to him.