M. U. SHAH, J. ( 1 ) APPELLANT Rabari Teja Mohan has been convicted by the learned City Magistrate 6 Court Ahmedabad in Criminal Case No. 90 of 1966 for the offence punishable under sec. 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 by this Court to suffer rigorous imprisonment for six months and to a fine of Rs. 11 in default rigorous imprisonment for three months. ( 2 ) THE appellant-accused was charged with having on or about the 6 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 sec. 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 Rakhial 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 Ramkishan. 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 milk that he was selling. In reply the accused stated that it was cows milk. However he did not express his willingness to sell the milk. The Food Inspector then told him that he was the Food Inspector but the accused said that he wont 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. 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 witness P. W. 2 Ramkishan 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 de-novo 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 sec. 342 of the Code of Criminal Procedure in answer to the Courts 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:- no Sir. In answer to the third question viz. 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:- no Sir. 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:- no Sir. 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 sec. 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 ) SEC. 16 of the Act is the punishing section which provides penalties against an offender. Clause (b) of sub-sec. (1) of sec. 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 ) SEC. 16 of the Act is the punishing section which provides penalties against an offender. Clause (b) of sub-sec. (1) of sec. 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 xhe shall in addition to the penalty to which he may be liable under the provisions of sec. 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 xthe first ingredient according to Mr. Desai which must be present in order to invoke the penalty under sec. 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 circumstance falls into two parts (a) and (b ). Now in the 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 as 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 sec. 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 sec. 10 of the Act. Now sec. 10 (i) of the Act deals with the powers of Food Inspectors. Sub-sec. 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 sec. 10 of the Act. Now sec. 10 (i) of the Act deals with the powers of Food Inspectors. Sub-sec. (1) of sec. 10 of the Act which is material for the purpose and which has been relied upon by Mr. Desai provides that:- 10 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; (b) x x x x x. In this case I will not be concerned with the power of the Food Inspector to send such sample for analysis to the public analyst as mentioned in clause (b) of sub-sec. (1) of sec. 10 of the Act because according to the prosecution case 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-SEC. (1) provides for taking of sample of any article of food from a person selling such article from a person in course of conveying or preparing 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 filling in one of these three characters. The powers to take the sample are not confined only qua a person selling 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. sec. 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 sec. 10 (1) (a) (i) of the Act. In Mr. sec. 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 sec. 10 (1) (a) (i) of the Act. In Mr. Desais submission having regard to the charge the complaint and the tenor of examination of the accused under sec. 342 of the Code of Criminal Procedure the question of taking a sample of an article of food from persons filling in the character (ii) and (iii) of clause (a) of sub-sec. (1) sec. 10 of the Act does not arise in the case. Mr. Desais 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 sec. 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. Desais 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. Desais 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 purchasers 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 sec. 16 (1) (b) of the Act it is but proper that I should discuss the questions. ( 8 ) SALE is defined in clause (xiii) of sec. 16 (1) (b) of the Act it is but proper that I should discuss the questions. ( 8 ) SALE is defined in clause (xiii) of sec. 2 of the Act as under:-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. Thus sec. 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 sec. 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 44sample as defined in sec. 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 filling in one of the three characters aforesaid must be in the manner prescribed. According to Mr. Relying upon this definition Mr. Desai urged that the taking of the sample from a person filling 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-sec. (7) of sec. 10 and clause (a) of sub-sec. (1) of sec. 11 of the Act lay down the manner in which the power is to be exercised. Now sub-sec. (7) of sec. 10 provides that:- Where the food inspector takes any action under clause (a) of sub-sec. (1) sub-sec. (2) sub-sec. (4) or sub-sec. (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-sec. (1) of sec. 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 secs. 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 Inspectors 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-sec. (1) of sec. 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:-TO I have this day taken from the premises of. . . situated at. . . (1) of sec. 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:-TO I have this 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. Food Inspector area. . Place. . Datethus it is clear that the manner referred to by Mr. Desai 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 banner required by law viz. under sec. 10 (1) (a) and sec. 11 (1) (a) of the Act does not arise. In this view of the matter I cannot accept Mr. Desais 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 sec. 10 (7) and sec. 11 (1) (a) of the Act are complied with. The scheme of the Act and the Rules and especially of secs. 10 and 11 of the Act and Rule 12 of the Rules indicate that sec. 10 (7) and sec. 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 the 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 sec. 16 (1) (b) of the Act to the accused. ( 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 sec. 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 it 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. Desais 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. Desais 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. ( 10 ) AS regards the intention of the accused Mr. Desais 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 form taking a sample of food in such a case. Mr. G. M. Vidhyarthi learned Assistant Government Pleader on the contrary contends relying on sec. 19 (1) of the Act that `mens rea need not be established. Now sec. 19 (1) of the Act on which reliance is placed by Mr. Vidhyarthi deals with defences which may or may not be allowed in prosecution under the Act. Its operation is limited to offence under sec. 16 (1) (a) pertaining to the sale of any adulterated or mis-branded 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 sec. 16 (1) (a) of the Act. But sec. 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 taking a sample must be deliberate act of the accused. Accidental or unintentional act of an accused resulting in such prevention cannot create a criminal liability The language of sec. 13 (1) (b) does not lend support to the contention that even an innocent vendor will be criminally liable. Accidental or unintentional act of an accused resulting in such prevention cannot create a criminal liability The language of sec. 13 (1) (b) does not lend support to the contention that even 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 J. P. 317 at p. 218 approvingly referred to by the Supreme Court in the case of Ravula Hariprasad Rao v. The State A. I. R. 1951 S. C. 204 ). In my opinion there is nothing in sec. 16 (1) (b) to show that either by clear intendment or by necessary implication mens rea as a constituent part of the crime is ruled out for the offence punishable under clause (b ). ( 11 ) AS regards the fourth ingredient Mr. Desais 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 accompanied by (i) some physical obstruction (ii) threat or (iii) assault on the Food Inspector. In Mr. Desais submission unless one of the three accompaniments 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 case of State of Gujarat v. Laljibhai Chaturbhai (1966) VII G. L. R. 120 delivered 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 circumstance out of account. It was observed that the Food Inspector has got powers under sec. 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 Court and Gee v. The Ambergate Nottingham and Boston and Eastern Junction Railway Company (1851) 20 L. J. Q. B. 460 p. 465. It was observed:- Whether 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 Corl and Gee v. The Ambergate Nottingham and Boston and Eastern Junction Railway Company (1851) 20 L. J. Q. B. 460 referred to by Raju J. is the one reported in the Revised Reports Vol. 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 Corl and Gee v. The Ambergate Nottingham and Boston and Eastern Junction Railway Company (1851) 20 L. J. Q. B. 460 referred to by Raju J. is the one reported in the Revised Reports Vol. LXXXV 1849-1851 at p. 369 was in 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 the goods gave notice to the vendor not to manufacture 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 delays 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 any 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 Champbell Ch. 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 Champbell Ch. J. held that the defendants had refused to accept the residue of the goods and that they had prevented and discharged 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. Desais contention. ( 12 ) MR. Vidhyarthi 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 A. I. R. 1955 Bom. 390 an appeal against an order of acquittal wherein the Division Bench had an occasion to consider the import of the term prevent used in sec. 4 of 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 sec. 4 of the Act does not necessarily denote the use of physical force or a threat of physical force. It was observed that what constitutes the contravention of the provisions of sec. 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. Desais argument that unless the person charged under sec. 4 is shown to have used physical force or threatened to use physical force he cannot be held to be guilty under sec. 4 (1 ). The Division Bench then referred to the dictionary meaning of the word prevent in Strouds 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 as obstruction by physical force. Strouds Judicial Dictionary makes this position clear. 4 (1 ). The Division Bench then referred to the dictionary meaning of the word prevent in Strouds 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 as obstruction by physical force. Strouds 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 conscious 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 strong 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 sec. 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 a sec. 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 herijan 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. 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 in the proper context in which it is used in sec. 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 sec. 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 sec. 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 Sambhav v. Shaman Lal and another A. I. R. 1961 Allahabad 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 before there could be prevention there should be some kind of overt act. The relevant discussion to be found at p. 104 reads:-IT was contended by learned counsel for the respondent that before 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 Prosecutor v. Murugesan A. I. R 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 sec 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 sec. 16 (1) (b) of the Act. To accept Mr. Desais contention that the intention of the accused to prevent the Food Inspector from taking the sample must necessarily be accompanied 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. Desais submissions on merits of the case. ( 14 ) ON merits Mr. Desais 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 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. Desais argument I need merely recall my observations made earlier viz. There is no merit in any of these submissions. As regards the last two facts of Mr. Desais 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 sec. 10 (7) and sec. 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 trustworthy by the learned Magistrate and is acceptable to me. Therefore the second and third parts of Mr. Desais contention on merits do not survive. The evidence as I shall presently see also leads to a reasonably 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 white 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. I have set out earlier white 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 oil 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 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 signature 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 differed in so far as the Food Inspector stated that he had seen the accused selling the milk and the peon stated that he had seen the accused going on his cycle. It was however contended by Mr. Desai that the version of the two differed in so far as the Food Inspector stated that he had seen the accused 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 of 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 circumstance 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 further circumstances which lend further corroboration to the Food Inspectors 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 secs. 10 (1) (6) (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 throwing 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 offence punishable under sec. 16 (1) (b) of the Act. In any view of the matter therefore the learned trying Magistrate was right in convicting the accused of the offence punishable under sec. 16 (1) (b) of the Act. I must accordingly maintain the order of conviction and sentence now under appeal before me. Appeal is dismissed. The appellant to surrender to his bail. .