N Criminal Appeal No 615 of 1981
356 Appeal by Special leave from the Judgment and Order dated the 6th May 1981 of the Punjab  Haryana High Court in Criminal Revision No 562 of 1979
Uma Datta TC Sharma and AD Malhotra for the Appellant
RN Poddar for the Respondent
This appeal by special leave is directed against the judgment of the Punjab and Haryana High Court dismissing Criminal Revision Case No 562 of 1979 which was filed by the appellant against the judgment of the Additional Sessions Judge Gurgaon who affirmed the judgment of the Chief Judicial Magistrate Gurgaon sentencing the appellant to rigorous imprisonment for six months and a fine of Rs 1000 under section 16 1 c of the as amended from time to time
We dismissed the appeal and confirmed the conviction and sentence on 54
1983 for reasons to be giving later
We hereby give the reasons
The charge against the appellant was that when the Food Inspector Gurgaon Sant Lal Anand PW2 went to the appellant s grocery shop at Farrukh Nagar at about 4 pm on 2781976 he prevented PW2 from taking a sample of dhania from the stock kept for sale by slipping away from the shop under some pretext
The case of prosecution was that when the Food Inspector PW2 visited the appellant s grocery shop accompanied by Dr Aggarwal Medical officer Incharge Primary Health Centre Farrukh Nagar PW1 and Dr Yadav Chief Medical Officer Health Gurgaon PW3
The appellant was found to have stored 6 kgs
of dhania for sale in his shop
PW 2 disclosed his identity to the appellant and demanded a sample of the dhania for analysis and sought to serve the notice Ex PB and tendered Rs 480 as the price of 600 gms
of dhania asked for
The appellant went away from the shop under the pretext of passing urine without accepting the notice exhibit PB or the sum of Rs 480 tendered by PW2 and he did not come back to the shop though PWs 1 to 3 waited there for about 112 hours
There after PW2 took a sample from the shop in the absence of the appellant and prepared the spot memo exhibit PA in the presence of PWs 1 and 3 and subsequently filed the complaint exhibit PC in the Court of the Chief Judicial Magistrate Gurgaon against the appellant for contravention of s16 1 c of the Prevention of Food Adulteration as amended by preventing him from taking a sample of the article of food
After the examination of PWs 1 to 3 a charge was framed against the appellant for the offence punishable under section 16 1 c of the Act and he pleaded not guilty to the charge and claimed to be tried
The prosecution relied on the evidence of PWs 1 to 3 who deposed to the facts mentioned above
The appellant stated when examined under section 313 Criminal Procedure Code that he is running a cloth business at Delhi and had casually visited his father s grocery shop at Farrukh Nagar on 2781976 when PWs 1 to 3 came there and he went to call his father Uggar Sain DW 1 and came back to the shop alongwith DW 1 after about 6 or 7 minutes and that PWs 1 to 3 had gone from the shop by that time
The appellant examined his father as DW 1 in his defence
The learned Chief Judicial Magistrate Gurgaon who tried the case rejected the evidence of DW 1 as being interested and unreliable and accepted the evidence of PWs 1 to 3 of whom PW 1 however could not identity the appellant as the person who went away from the shop without accepting the notice and cash tendered by PW 2 and found following judgment of the Punjab and Haryana High Court in Krisha Lal  Ors
vs State of Haryana1 that the appellant was guilty of having prevented the Food Inspector PW 2 from taking a sample of the article of food by going away from the shop without accepting the notice and cash tendered by PW 2
Accordingly the learned Magistrate convicted the appellant and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs 1000 under section 16 1 c of the Act
The conviction and sentence were confirmed on appeal by the learned Additional Sessions Judge Gurgaon who found that the appellant was more than 18 years of age at the time of commission of the offence and was therefore not entitled to the benefit of section 360 Cr
PC in view of section 20 AA of the Act according to which section 360 Cr
PC is not applicable to the case of the accused who was more than 18 years of age at the time of commission of the offence
The Criminal Revision Case filed by the appellant in the Punjab and Haryana High Court against the judgment of the learned Additional Sessions Judge Gurgaon was dismissed by SS Dewan J who confirmed the conviction and sentence
Hence this appeal by special leave
358 The prevention of Food Inspector from taking a sample of an article of food as authorised by the Act is an offence punishable under section 16 1 c with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than on thousand rupees
Mr Uma Datta appellant s learned counsel invited our attention to paragraph 10 of the judgment of the learned Additional Sessions Judge Gurgaon where it has been found that the Food Inspector PW 2 had in fact taken a sample in the presence of PWs 1 and 3
But this must be noted that this was done after the appellant went away from the shop under the pretext of passing urine and did not return for about 1 12 hours during which period PWs 1 to 3 waited for him at the shop
The finding of fact that the appellant went away from the shop under the pretext of passing urine when the Food Inspector PW 2 tendered the notice exhibit PB and the cash of Rs 480 for purchasing a sample of dhania and did not return for about 1 12 hours during which period PWs 1 to 3 waited at the shop for him cannot be canvassed in this appeal
The learned counsel for the appellant invited our attention to two decisions and submitted that the mere disappearance of the appellant from the shop after the sample was asked for by the Food Inspector without anything more did not amount to prevention of the Food Inspector from taking the sample
The first of those decisions is of CP Sen J of the Madhya Pradesh High Court in Jagannath vs State of Madhya Pradesh1 where the facts found were that when the accused was taking 5 litres of milk in his kothi for sale the Food Inspector stopped him as he suspected the milk to be adulterated and asked him to accompany him to the Municipal office for taking a sample and that on reaching the Municipal office the accused bolted away leaving the kothi of milk and the learned Judge held that the accused did not prevent the Food Inspector from taking a sample simply because he bolted away from the spot and that the Food Inspector was free to take the sample from the kothi of milk left behind by the accused even in the absence of the accused
In holding so the learned Judge differed from the view taken in Municipal Board Sambhal vs Jhamman Lal2 where it has been held that the disappearance of the seller from the shop amounts to prevention of the Food Inspector from taking the sample and that over act on the part of the seller is not necessary to constitute an offence under section 16 1 b of the Act as it then stood which corresponds to the present section 16 1 c
The second decision 359 relied upon by the learned counsel of the appellant is of the Full Bench of the Rajasthan High Court in Narain Prasad vs State of Rajasthan  Anr1 where Shrimal J speaking for the bench has observed Thus the consensus of the opinion of almost all the High Court 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 sec
2 of Sec 10 gives the Food Inspector power to enter any place where the article of food is exposed for sale
Sub sec
4 of Sec
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 the power of search and seizure of a police officer under the Crl
The Food Inspector is also authorised to exercise powers of a police officer under Section 57 of the Code ie 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 learned Judges of the Full Bench appear to have held that some overt act on the part of the seller apart from mere refusal to sell the article of food to the Food Inspector is necessary to constitute an offence of prevention of the Food Inspector from taking the sample
On the other hand Mr R N Poddar learned counsel appearing for the State of Haryana invited our attention to two decisions and submitted that the conduct of the appellant in slipping 360 away from the shop when the Food Inspector disclosed his identity and asked for sale of a sample of dhania from his grocery shop amounts to prevention of the Food Inspector from taking the sample as per the provisions of the Act
The first of those decisions is to HCP Tripathi J in Mamchand vs State1 where the learned Judge has observed The sample had to be taken in accordance with the provisions of the Act and Rules thereunder
As soon as the owner of the milk disappeared from the scene the Food Inspector could not have obtained the sample as required under law
By running away from the place the applicant did prevent the Food Inspector from taking sample as required under the Act though not from taking away the entire quantity of the milk which the Food Inspector could do in exercise of his powers under Section 10 iv of the Act
In the case of Municipal Board Sambhal vs Jhamman Lal AIR 1961 AII
103 it was held by a Division Bench of this Court that if a person selling article leaves the shop he prevents Food Inspector from taking sample as authorised by the Act
In the instant case the applicant left the milk which he was exposing for sale and thereby prevented the Food Inspector from taking its sample
 A learned single Judge of the Madhya Pradesh High Court has taken a similar view in Habib Khan vs State of Madhya Pradesh2 In that case a milk vendor on being accosted by the Food Inspector kept his milk can in the canteen and bolted away and it has been held that the milk vendor prevented the Food Inspector from taking the sample and thus committed an offence under section 16 1 b of the Act as it stood than
The learned Judge has observed in his judgment thus The power of taking the sample has been conferred on the Food Inspector so that he may prosecute the person found selling adulterated food stuff or found in possession thereof for the purposes of sale
Now if a person bolts away and thus his identity remains undis 361 closed the whole purpose of the exercise of the power conferred under section 10 on the Food Inspector is defeated
In such a case it will have to be held that in bolting away the person prevented the effective exercise of the power by the Food Inspector
If this is so it is difficult to see how the same action on the part of a known person would make any difference
If he bolts away an additional burden will be cast on the Inspector if he decides to prosecute him for selling or keeping for sale adulterated food articles to prove that the person who bolted away was the accused and that the article left by him was in his possession
Witnesses may not be available at the nick of the time and here again the result would be the same
This is why it is necessary to interpret the two expressions prevents and in exercise of the powers under the Act in the manner interpreted by the Allahabad High Court in Municipal Board Sambhal vs Jhamman Lal supra We are of the opinion that the view of the Allahabad High Court expressed in Municipal Board Sambhal vs Jhaman Lal supra reiterated in Mamchand vs State referred to above and taken by the learned single Judge of Madhya Pradesh High Court in Habib Khan vs State of Madhya Pradesh supra and the Punjab and Haryana High Court in the judgment under appeal in this case is the correct view and that appellant in this case who bolted away from the shop under the pretext of passing urine when the Food Inspector PW 2 went to his shop alongwith PWs 1 and 3 and disclosed his identity and tendered the notice exhibit PB and cash of Rs 480 and asked for a sample of the dhania kept for sale in his grocery shop without accepting the notice and the cash prevented the Food Inspector PW 2 from taking a sample in accordance with the provisions of the Act and the Rules made thereunder and that no other overt act is necessary on the facts of this case to constitute the offence for which the appellant has been convicted and sentenced and that he has been rightly convicted and sentenced by the Court below under section 16 1 c of the Act
We accordingly dismiss the appeal and confirm the conviction of the appellant and the sentence awarded to him
PBR Appeal dismissed


Summary:
A Food Inspector visited the appellant s grocery shop and demanded a sample of dhania for analysis
Leaving the shop on a false pretext the appellant did not return to the shop for quite a long time
Thereupon after following the requisite procedure the Food Inspector took a sample of dhania in the absence of the appellant
On a charge under Section 161c of the that the appellant had prevented the Food Inspector from taking a sample of the article of food the trial court convicted and sentenced him
The conviction and sentence were affirmed on appeal
The High Court dismissed his criminal revision petition
In appeal to this Court it was contended that mere disappearance from the shop after the sample was demanded by the Food Inspector without anything more did not constitute an offence of prevention of the Food Inspector from taking a sample
Dismissing the appeal
 HELD The appellant had been rightly convicted and sentenced under section 1611 c of the Act
The appellant s disappearance from the shop for a long time amounted to prevention of the Food Inspector from taking a sample in accordance with the provisions of the Act and the Rules
No other overt act is necessary to constitute the offence
361 F H Municipal Board
Sambhal vs Jhaman Lal AIR 1961 All
103 Mam Chand vs State  Habib Khan vs State of Madhya Pradesh  approved
Jagannath vs State of Madhya Pradesh 1977 Crl
LJ 974 Narain Prasad vs State of Rajasthan AIR overruled