JUDGMENT V.P. MATHUR, J. 1. THIS is an appeal against acquittal. The order of acquittal has been made by Mr. R.K. Arya, Chief Judicial Magistrate, Farrukhabad on 2-3-1977. The case against Satish Kumar Kapoor was for an offence punishable under Section 16 (1) (c) of the Prevention of Food Adulteration Act. 2. THE prosecution case was that on 6-7-1975 at about 6:30 in the morning, Food Inspector Sri L. S. Tandon along with Sri R. N. Saxena, Food Inspector reached the Ice Candy factory of the accused Satish Kumar Kapoor installed in one of the outer rooms of his residential house in Mohalla Khat-rana, Farrukhabad adjacent to the machine room. There is his Gaddi room and the two rooms are connected by a door. It is said that the accused prevented the Food Inspector Mr. L. S. Tandon from taking the sample of ice-candy which he was manufacturing in his factory, closed the door and himself left the place. The matter has to be considered on two aspects namely the legal aspect and the factual aspect. The learned Magistrate is of the view that subsection (2) of Section 10 of the Prevention of Food Adulteration Act does not make it incumbent upon the factory owner or the manufacturer to give the sample. It only authorises the Inspector to take the sample. His opinion is that as such even if all the prosecution allegations are accepted, it will not be a case in which the Food Inspector was prevented from taking the sample. On the factual side, his finding is that actually no occurrence took place on the date and time mentioned by the prosecution and the whole has been made up, because the accused did not oblige the Food Inspector regarding his illegal demand. 3. TAKING the legal position first, the learned Magistrate has made a distinction between the provisions of Section 10(1) and 10(2) of the Act. According to him, in view of Section 10(1), the Food Inspector is authorised to take sample from any person, but according to sub-section (2) of Section 10, the Food inspector has been authorised to take sample from the premises. In my opinion unnecessarily a lengthy discussion of the two provisions of the law has been made in the judgment and a distinction without difference has been struck. In my opinion unnecessarily a lengthy discussion of the two provisions of the law has been made in the judgment and a distinction without difference has been struck. As a matter of fact, although the language of the two provisions of the law is obviously different. The import is the sarnie. Under sub-section (2) of Section 10 the Food Inspector has the authority to enter and inspect any place where articles of food are being manufactured or stored for sale or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale, or where any adulterant is manufactured or kept. He has also the authority to take samples of such article of food or adulterant for analysis. Naturally the sample has to be taken in accordance with certain procedures as prescribed by the Act itself and they involve payment of the price service of the notice etc. The mere fact that no mention of "person" is made in subsection (2) cannot be taken to mean that the sample can be obtained even if the person who is manufacturing the food item is absent. Some body will have to be present on the spot to disclose the price of the sample and to obtain it and to receive the notice etc. Therefore the effect of sub-sections (1) and (2) is the same. Sub-section (2) cannot operate in vacuum. A person is to be involved because the sample will have to be taken from him in accordance with the provisions of the Act. It cannot be contemplated that if the manufacturer or the owner or the servant are all absent, the inspector can still enter the place where the manufacture is going on and obtain a sample of his own accord in the absence of every body. 4. THE discussion in the learned Magistrate's judgment was unnecessary also, because if the prosecution evidence is believed then it will have to be held that the Inspector was not allowed to function properly and he was prevented from taking the sample. In a Division Bench Case 1971 CrLJ 785 it was held that mere refusal on the part of the vendor to comply with the request of the Food Inspector to sell him goods for sample will not amount to preventing the Food Inspector from taking the sample. In a Division Bench Case 1971 CrLJ 785 it was held that mere refusal on the part of the vendor to comply with the request of the Food Inspector to sell him goods for sample will not amount to preventing the Food Inspector from taking the sample. In this case, the earlier case of Municipal Board Sambhal v. Jhamman Lal, AIR 1961 Allahabad 103=1960 AWR 490 Division Bench was considered and it was held that the observations in Jhamman Lal's case were in the nature of obiter dictum and were distinguishable. Subsequently in the case of Sriram v. State, 1976 ACQ High Court page 19 another case was considered by this Court. There the accused on demand refused to give a sample and then went away after closing his shop. It was held that it was an overt act which frustrated the inspector's mission and prevented him from doing his duty. THE closing of the shop was held to be having a direct nexus with the vendor's refusal to give a sample. The latest law in the matter has been laid down by the Supreme Court in the case of Rajinder Pershad v. State of Haryana, 1983 AWC 789 S.C. In the case before the Supreme Court, the facts were that the Food Inspector disclosed his identity and asked the shop keeper for a sample of dhania which he had kept for sale and offered payment. The accused however made a false pretext that he wanted to go to pass urine and, on that plea, he left the place and did not return. It was held that this amounted to preventing the Food Inspector from taking the sample in accordance with the provisions of the Act and rules and no other overt act was necessary to constitute the offence. Hence it was held that conviction under Election 16 (1) (c) of the Prevention of Food Adulteration Act was justified. While deciding this case the Supreme Court overruled the case of Jagannath v. State of M.P., 1977 CrLJ 974 M.P. and of Narain Prasad v. State of Rajasthan, AIR 1978 Rajasthan 162 F.B.; it approved the cases of Municipal Board Sambhal v. Jhamman Lal, 1960 AWR 490=AIR 1961 Alld. 103 and the case of Habib Khan v. State of Madhya Pradesh, 1971 MPLJ 889 as well as the case of Mamchand v. State, 1971 AWR 621. 5. 103 and the case of Habib Khan v. State of Madhya Pradesh, 1971 MPLJ 889 as well as the case of Mamchand v. State, 1971 AWR 621. 5. THEREFORE the situation now is that if the Court believes the prosecution evidence which has been adduced in this case that when the inspector asked the accused to give him sample of the ice-candy, the accused refused to do so, closed the door between the factory and the Gaddi room and himself went away inside his residential portion then it will only follow that he was guilty of preventing the food inspector from taking the sample and it will be futile to argue that inspite of all this the food inspector could have still taken the sample from the premises because according to the learned Magistrate person was not involved. This is about the legal aspect of the matter. 6. SO far as the factual aspect is concerned, the learned Magistrate has taken into consideration certain facts established on the record. As soon as the notice suspending the license was served on the accused, he sent a reply which is on the record and about which a mention has been made by the learned Magistrate and clearly said that all the allegations were wrong that the inspectors never visited his premises on about 6-7-75 and no occurrence as mentioned ever took place. He has also examined two witnesses in support of his contention and himself states in his statement under section 313 CrPC that no raid was made at his premises; that he never refused to give any sample; that he never closed the door and never bolted away. His contention is that the inspector wanted something illegal from him which he was not prepared to do and hence a false case has been started. It may be mentioned here that according to the prosecution version one independent witness Kunwar Singh was present on the spot when the occurrence took place. According to the two inspectors who were examined in this case, Kunwar Singh has signed Ext. Ka 2 also. His address has been mentioned as son of Banshilal, resident of village Lakhmai, P.S. Mau Darwaza, district Farrukhabad. It is also in evidence that other persons of the locality collected on the spot. According to the two inspectors who were examined in this case, Kunwar Singh has signed Ext. Ka 2 also. His address has been mentioned as son of Banshilal, resident of village Lakhmai, P.S. Mau Darwaza, district Farrukhabad. It is also in evidence that other persons of the locality collected on the spot. It may be argued that the persons of the same locality might not come forward to depose against the accused. But atleast an attempt may have been made to bring them in the witness-box. There is however no explanation why Kunwar Singh was not examined. There is no allegation that he is prejudiced against the inspector and in favour of the accused. It means therefore that although independent evidence was available which was not produced and the two inspectors only entered the witness box to support the prosecution case. This was sufficient to make the learned Magistrate to come to the conclusion that perhaps the prosecution version was not correct and what the accused was saying was right and actually no occurrence as alleged took place and a case has been made up. Such a conclusion could be arrived at on the basis of the evidence on the record, it cannot be said to be perverse. This being so, on facts the prosecution case was rightly held as not made out, and this appeal has to fail. In the result the appeal is hereby dismissed. Appeal dismissed.