SAIDU MOHAMMED v. FOOD INSPECTOR — 1973 DIGILAW 154 (KER)

Judgment :- 1. Two accused, father and son. were put on trial before the Sub Divisional Magistrate, Kunnamkulam, in C.C. No. 1016 of 1971 for offences under Ss 10 (I) (a) (i) and 10(2) read with S.16(1) (b) and (c) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act. The first accused is the licensee of the shop in building No. 11/1009 situated in Koottungal Bazaar of Chowghat Panchayat. The 2nd accused is his son. When pw.1, the Food Inspector, Inspected the shop on 18 91971 at about 1.00 P.M. the 2nd accused alone was present in the shop. pw.1 wanted 600 grams of toffee manufactured by the Corners Company. The 2nd accused refused to give the sample stating that the toffee was stocked in a package of 1 Kg. and it was not sold in retail and therefore if pw.1 wanted be could purchase one full packet. He was also told that the packet contained a warranty which also stated that the manufacturers will not be answerable if the toffee was sold loose. pw.1 insisted. The 2nd accused thereupon gave a statement Ex. P1 to pw.1. Thereafter charge was laid. 2. The trial court acquitted the first accused, but convicted the 2nd accused and sentenced him to suffer imprisonment till the rising of the court and to pay a fine of Rs.1,000/-. The matter was taken is appeal. The learned Sessions Judge, Trichur, confirmed the conviction and sentence. Hence this revision. 3. The question posed in this revision is an interesting one and is not covered by any authority of this Court or of the Supreme Court. Shortly put, the question is whether the 2nd accused could be said to have committed an offence under S.16 (1) (b) of the Act when be refused to give the sample to the Food Inspector, pw.1 and when he said that be had no objection for selling a packet containing 1 Kg. of toffee. In other words, the question is whether the 2nd accused prevented pw.1 from taking the sample. 4. Before considering the question of law involved in this case, it would be useful to consider the admitted case from the evidence recorded in the case. of toffee. In other words, the question is whether the 2nd accused prevented pw.1 from taking the sample. 4. Before considering the question of law involved in this case, it would be useful to consider the admitted case from the evidence recorded in the case. Pws 1, 2 and 3 have stated that the 2nd accused told pw.1 that 600 grams of toffee could not be given and that there was no objection in the full packet being taken by pw.1. To the same effect is the recital in Ext. P1. Pw.l in his chief-examination states as follows: And in cross-examination he states: The 2nd accused was examined as DW.1. He has deposed In his 342 statement, the 2nd accused has stated. Therefore, the evidence in this case is that the 2nd accused refused to give 600 grams of toffee, but was prepared to give the full packet of toffee containing.1 Kg. In the light of this evidence, what I have to consider is whether the accused-petitioner can be said to have committed the offence. 5.It is necessary here to extract the relevant provisions of law which have a bearing on this case. The offences with which the accused are charged are under S.10(1)(a)(i) read with S.16 (1)(b) of the Act. S.16 (1)(b) reads as follows: "16(1). If any person' .......... (b) prevents a food inspector from taking a sample as authorised by this Act; or he shall, in addition to the penalty to which he may be liable under the provisions of S.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." This section contemplates "prevention" of the Food Inspector from taking a sample, which he is empowered to do under the Act. Does the section postulate an overt act on the part of the accused amounting to preventing the Food Inspector from taking a sample? The answer will depend upon the range of the expression "prevention" and the effect of the expression "taking a sample" occurring in the section. Does the section postulate an overt act on the part of the accused amounting to preventing the Food Inspector from taking a sample? The answer will depend upon the range of the expression "prevention" and the effect of the expression "taking a sample" occurring in the section. In other words, what this Court has to consider is whether "prevention" should be in the form of a conscious overt act on the part of the accused or whether an omission on his part would be sufficient to bring his act within the said expression. Also whether the expression "taking a sample" would mean refusing to sell an article of food. 6. In this connection, we have to see what are the powers of the Food Inspector under the Act for taking a sample because S.16(1)(b) describes "talcing a sample as authorised by this Act". It is necessary to quote extensively S.10 of the Act which deals with the powers of the Food Inspector. "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) to send such sample for analysis to the public analyst for the local area within which such sample has been taken; (c) with the previous approval of the health officer having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health. (2) Any food inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis. (2) Any food inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis. (4) If any article intended for food appears to any food inspector to be adulterated or mis branded, he may seize and carry away or keep in safe custody of the vendor such article in order that it may be dealt with as hereinafter provided: (5) The power conferred by this section includes power to break open any package is which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale." In S.10(1)(a)(i) the expression used is. "a food inspector shall have power to take samples of any article of food from any person selling such article". The question is whether we are confronted in this case with a situation where the Food Inspector exercises the power conferred on him under S.10(1)(a)(i) to take samples of any article of food from a person selling the same. S.10(2) empowers the Food Inspector to enter and inspect any place where the article of food is kept for sale, manufactured or stored and take samples of such articles. S.10(3) provides for payment of price to the vendor. S.10(4) gives the power to the Food Inspector to seize and carry away the articles of food in certain circumstances. S.10(5) confers the additional power on the Food Inspector to break open any package in which the article of food is kept or to break open the door of any premises where the article of food may be kept. 7. Keeping in view these provisions, we have to consider whether "to take samples" used in the above section is the same thing as purchasing the sample from the vendor. The Food Inspector has under the Act sufficient powers to seize an article of food which in his opinion is either adulterated or mis-branded. He has the power to take the sample after entering and inspecting the place where the food is sold or exposed for sale. The Food Inspector has under the Act sufficient powers to seize an article of food which in his opinion is either adulterated or mis-branded. He has the power to take the sample after entering and inspecting the place where the food is sold or exposed for sale. The question therefore is whether the demand by the Food Inspector for the article of food to be sold to him for the purpose of sampling amounts to taking a sample and whether the refusal by the accused in giving the article of food in the circumstances mentioned in this case would amount to preventing the Food Inspector from taking a sample as authorised by the Act. 8. What exactly is meant by the word "taking a sample"? The word "take" cannot be equated with the word "purchase". Nor can it be equated with the word "demand" or with the words "to give". The meaning of the word "take" in the Chamber's Twentieth Century Dictionary is, "to lay bold of, to get into one's possession, to seize, to catch, to capture, to captivate," etc. In the Random House Dictionary of the English Language (Unabridged Edition), the meanings given for the word "take" are; "to get into one's bands, possession, control etc. by force or artifice; to seize or capture; to catch or get etc." In the Webster's Dictionary of English Language, the word "take" is said to mean "to get into one's hands or into one's possession, power or control by force or stratagem; to seize or capture physically". These dictionary meanings indicate that the expression "take" would mean the exercise of volition or the exercise of an overt act by the Food Inspector to lay bold on the sample. It cannot be that the Food Inspector is powerless when a person refuses to sell an article of food to him. In cases where the Food Inspector feels that an article of food is injurious to human consumption, which is sold or exposed for sale by a person, and if that person refuses to sell that article of food to him or in cases where the Food Inspector feels that the entire article has to be seized and kept under his custody, the section gives ample powers to him to do so. If we consider the facts of this case against this background, it would be obvious that to bring a person within the mischief of the section under which he is charged, something more than mere refusal to sell is necessary. As indicated by me above, the case of the prosecution as disclosed by the evidence in the case is that the accused refused to give 600 grams of toffee from the packet containing 1 Kg. of toffee, which was not a refusal to give an article of food at all. He was prepared to sell the article of food contained in the packet as a whole. The complaint also is to the same effect. The accused had two reasons for refusing to sell the article of food in question loose: (1) it is not the practice to sell this toffee loose; and (2) his father was not present in the shop. There is a faint argument based on the case that the package contained a warranty and also a warning by the manufacturer that if the article of food is sold loose, they will not be held responsible. Under these circumstances taking a liberal interpretation of the words used in the section it would be clear that to constitute an offence under the section, the accused should not only omit to do certain things but should actively and deliberately do an act amounting to prevention of the Food Inspector from discharging his duties. 9. The learned counsel for the petitioner has dealt with the question of law involved in this case exhaustively placing before me all the available authorities on this aspect. I think it necessary to deal with these cases individually to ascertain from them the line of thought that prevailed with the learned judges who decided these cases. 10. The first case cited is the one reported in Public Prosecutor v. Murugesan AIR. 1954 Madras 199, which was a case under the Madras Prevention of Food Adulteration Act, Act 3 of 1918. In that case when the Food Inspector approached a person selling milk and wanted to give him a sample of milk, the accused went to a hotel nearby and banded over the milk to the servant of the hotel, who poured it into a milk pan in which he was boiling milk. The question was whether a mere refusal to sell amounted to prevention. The question was whether a mere refusal to sell amounted to prevention. It was held in that case that the accused had effectively prevented the officer from taking the sample and that no further overt act was necessary than what had happened. It is clear that the physical act of the accused in pouring the milk into the boiling pan, which contained other milk also, amounted to an overt act on the part of the accused effectively preventing the officer from taking a sample of the milk. No further overt act was necessary to prevent the officer from discharging his duties. While in that case, the officer could not have taken a sample at all, in this case inspite of refusal by the accused to give 600 grams of toffee, the Food Inspector was perfectly at liberty to take a packet of toffee containing 1 kg. of toffee and discharge his duties. 11. The next case cited before me is the decision in Bishan Dass v. State AIR. 1957 Punjab 99. In that case, the accused refused to give sample on payment and it was held that no offence was committed. There, the Food Inspector was prevented from taking a sample and it was held that the refusal to give sample even on payment is not the same thing as prevention which need not have an element of physical obstruction but it does involve some act which binders an Inspector from taking a sample. The learned judge who decided the above case distinguished the case reported in Cort v. The Ambergate. Nottingham and Boston and Eastern Junction Railway Company, (1851) 20 L. J. Q. B. 460 at p. 465, where it was held that "to prevent" does not mean only an obstruction by physical force but it may involve a threat. As in that case, neither physical force nor threat was involved, the Court came to the conclusion that the ingredients of the offence were not made out and held that no offence was made out. The principle enunciated in the above decision, short though, is helpful for this case. Here also, although the accused is alleged to have refused to sell 600 grams of toffee loose, he agreed to sell the full packet of toffee to the Food Inspector. There was neither a physical obstruction nor threat against the Food Inspector preventing him from taking a sample. 12. Here also, although the accused is alleged to have refused to sell 600 grams of toffee loose, he agreed to sell the full packet of toffee to the Food Inspector. There was neither a physical obstruction nor threat against the Food Inspector preventing him from taking a sample. 12. Mussaddi Lal v. State (AIR. 1959 All. 753) related to a case where the accused actually gave sample to the Food Inspector but refused to accept notice under S.11(1)(a) and parts of the sample under S.11(1)(c)(i) and also refused to sign the receipt for the price. The facts of this case are not useful for appreciating the case on hand. The only point which needs mention regarding this decision is the distinction drawn between the powers of the Food Inspector under S.10 and the duties under S.11. S.10 deals with the powers of the Food Inspector but S.11 prescribes the procedure to be followed by him when he takes the sample. There, the accused gave sample but refused to accept the price. Mere refusal by the accused in accepting the price or receiving the sample was held to be not an offence coming within the Act. 13. The next case to be considered is the one reported in Municipal Board v. Jhamman Lal (AIR. 1961 All. 103). In that case, a Division Bench of the Allahabad High Court held that the disappearance of the seller from the shop when the Food Inspector went to the shop to take sample amounted to prevention from taking the sample. The disappearance of the person from the shop was held to be an overt act on the part of the accused therein making him liable for an offence of preventing the Food Inspector from taking a sample of the article of food. in that case, when the Food. Inspector went to take a sample, the owner left the shop promising to return soon but did not return. There is an observation in this case that no overt act is necessary, which has been relied upon by the Public Prosecutor in this case. It is also held therein that if an overt act is necessary, then the disappearance of the seller from the shop is a sufficient overt act to constitute prevention. 14. In the case reported in State v. Laljibhai (AIR. 1967 Guj. 61) the accused refused to give the sample and left the shop. It is also held therein that if an overt act is necessary, then the disappearance of the seller from the shop is a sufficient overt act to constitute prevention. 14. In the case reported in State v. Laljibhai (AIR. 1967 Guj. 61) the accused refused to give the sample and left the shop. It was held in that case that to bring an act or omission to be a refusal on the part of the accused, there should be a physical obstruction or assault and a mere refusal will not constitute a prevention. Of course, this case does not consider the earlier decision of the Division Bench of the Allahabad High Court reported in Municipal Board v. Jhamman Lal (AIR. 1961 All. 103). 15. In Leja Mohan v. Mangubhai (AIR. 1970 Guj. 209) the accused when he was approached by the Food Inspector to take a sample of the milk threw it on the ground. It was held that there was a positive action on the part of the accused preventing the Food Inspector from taking a sample, thus amounting to prevention of the Food Inspector as contemplated under the Act. The throwing of milk on the ground has made it impossible for the Food Inspector to take a sample. In R. R. Sharma v. Jamshedpur N. A. Committee (AIR 1970 Patna 104) it is observed as follows: "It does not create any obligation on the part of the salesman or any other person mentioned therein to actively co-operate with Food Inspector in taking the sample by physically handing over the article to him. It was for the Food Inspector to take the sample and if the salesman prevented him from doing so, he could be liable for an offence under S.16(1)(b) of the Act." It was also observed that the expression "to prevent" indicates 'some action on the part of the person preventing any act, which would render the performance of that act impracticable or impossible'. This can take various shapes. Simple non-cooperation by not handing over the article to the Food Inspector will not amount to prevention. This case considered the earlier Punjab and Gujarat High Court decisions referred to above as well as the Division Bench ruling of the Allahabad High Court. 16. In Mamchand v. State of U. P. (1971 Crl. This can take various shapes. Simple non-cooperation by not handing over the article to the Food Inspector will not amount to prevention. This case considered the earlier Punjab and Gujarat High Court decisions referred to above as well as the Division Bench ruling of the Allahabad High Court. 16. In Mamchand v. State of U. P. (1971 Crl. L. T. 1772) when the Food Inspector approached the accused for taking a sample, the accused left the milk at the spot and bolted away from the scene and this act was held to be an act of prevention. 17. In Jaunpur Municipality v. Maluk Das (1971 Crl. L. J. 705) which was again a Division Bench decision of the Allahabad High Court, it was held that an overt act is necessary to bring the accused within the mischief of the section. The earlier Allahabad decision reported in Municipal Board v. Jhamman-lal (AIR. 1961 All. 103) was distinguished with the observation that it was only an obiter dictum. According to this decision, S.10 of the Act confers power on the Food Inspector but it casts no duty or obligation on the part of the vendor to tender or offer an article of food to the Food Inspector. Mere refusal to give sample or refusal to comply with the request of the Food Inspector to sell him the goods does not constitute an offence and it is laid down that refusal to give sample is not an offence coming within S.16(1) (b) of the Act. It only makes the person liable to pay penalty if be prevents the Food Inspector from taking a sample as authorised by the Act. 'Preventing', as is understood, is doing of some act making it impossible for the Food Inspector to obtain a sample in exercise of his power. 18. The last case cited before me is a Division Bench ruling of the Patna High Court in District Board v. Sadhu Suo (AIR 1971 Patna 222), which was largely relied upon by the court below in convicting the accused. It may be mentioned that the decision of the single judge of the Patna High Court in R, R. Sharma v. Jamshedpur N. A.Committee (AIR, 1970 Patna 104) was not brought to the notice of the Court. What was considered in that case was a mere refusal to sell sample to the Food Inspector. It may be mentioned that the decision of the single judge of the Patna High Court in R, R. Sharma v. Jamshedpur N. A.Committee (AIR, 1970 Patna 104) was not brought to the notice of the Court. What was considered in that case was a mere refusal to sell sample to the Food Inspector. It was held in that case that if a person selling an article of food refuses to comply with the demand of the Food Inspector to give a sample of it to him on tender of the requisite price, then the refusal has the consequence of preventing the Food Inspector from taking a sample which he is authorised to take by the Act and the person who thus prevents a Food Inspector from taking a sample commits an offence punishable under S.16(1) (b) read with S.10 (1) (a) (i) of the Act. 19. I agree that there is conflict of decisions between the various High Courts on this interesting question. But the facts of the case on hand should be considered independent of those decisions. What has emerged from the prosecution witnesses is not an absolute refusal by the 2nd accused to give sample or any act on his part preventing the officer from taking a sample, but a bona fide refusal by him not to sell 600 grams of toffee loose but to sell the Food Inspector the entire packet containing 1 kg. of toffee. When be was examined as pw.1 the accused No 2 also deposed that being a government purpose, he was even prepared to forego the price for 400 grams. An additional point which has emerged from his 342 statement is that the packet contained something equivalent to a warranty under the Act declaring that only permitted colour was used and that if sold loose the company will not be responsible for any action against the seller. These two circumstances according to me are matters which distinguish the case on band from the cases referred to above. It cannot be said that by refusing to give 600 grams of toffee while agreeing to sell the full packet, the 2nd accused had prevented the Food Inspector from taking a sample. His refusal has not made it impossible or impracticable for the Food Inspector to take the sample. It cannot be said that by refusing to give 600 grams of toffee while agreeing to sell the full packet, the 2nd accused had prevented the Food Inspector from taking a sample. His refusal has not made it impossible or impracticable for the Food Inspector to take the sample. He cannot therefore be accused of having committed any overt act making it impossible for the Food Inspector from taking a sample. This is not the same as throwing the milk on the ground or pouring the milk in the boiling pan with other milk or bolting away from the shop making it impossible for the Food Inspector from taking a sample. Under these circumstances, I am inclined to accept the version given by the accused in this case. If only the Food Inspector had accepted the offer of taking the full packet, the accused would not have been in a position to put forward such a defence. Even if the case put forward by dw.1 that he was prepared to forego the price of 400 grams of toffee is to be disbelieved, the payment of the price for 400 grams more would not have caused any great loss to the Food Inspector. Perhaps the Food Inspector was under the impression that be could not buy more. According to me, the materials placed before me are not sufficient to bring home the guilt of the accused beyond reasonable doubt. 20. Another point which needs consideration in this case favourable to the accused is that the packet contained a warranty the benefit of which he would have been denied if he had sold it loose. He has clearly deposed that the packet contained a warranty stating that only permitted colour is used and that the seller would be denied the benefit of this warranty if sold loose. Under these circumstances, his refusal should be taken as a proper refusal. Therefore, he cannot be deemed to have committed an offence under S.16(1)(b) or S.10(1)(a)(i). 21. The learned counsel for the petitioner brought to my notice the decision reported in R. J. Gujar v. Jamnadas, AIR. Under these circumstances, his refusal should be taken as a proper refusal. Therefore, he cannot be deemed to have committed an offence under S.16(1)(b) or S.10(1)(a)(i). 21. The learned counsel for the petitioner brought to my notice the decision reported in R. J. Gujar v. Jamnadas, AIR. 1970 Bombay 135, where the accused, who was a Kirana merchant and was also dealing in "Anik Ghee" supplied to him by the manufacturers in sealed tins under a warranty, refused to sell to the Food Inspector a sample of 450 grams after breaking open the sealed tin as required by the Food Inspector. The accused insisted that the food inspector should purchase the sealed tin containing 2 kg. but the food inspector refused to purchase the quantity of more than 450 grams under the impression that he had no power to purchase a quantity larger than 450 grams. It was held an offence preventing the Food Inspector from taking a sample, as contemplated by S.16(1)(b) of the Act was not committed. It was also held that having regard to his right to take the benefit of the statutory defence under S.19 of the Act, the seller was entitled to insist that it should be purchased is the form in which he received it from manufacturer. Incidentally it was also held that R.22 which enabled the Food Inspector to take sample was only an enabling provision and it did not bind the Food Inspector to purchase only the quantity mentioned therein. The case with which we are dealing here is more or less the same. With respect, I accept the principles laid down in this decision and hold that the refusal of the 2nd accused to sell 600 grams of toffee to the Food Inspector loose was not a refusal amounting to prevention of the Food Inspector from taking a sample. I would like to make it clear that this case rests solely on the particular facts disclosed in the evidence and under those facts the accused cannot be said to have committed any offence. In the result, the criminal revision petition is allowed. The conviction and sentence passed against the accused are set aside and he is acquitted. Fine paid, if any, will be refunded to the accused-petitioner.