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2006 DIGILAW 315 (RAJ)

Ishwar Lal v. State of Rajasthan

2006-01-31

VINEET KOTHARI

body2006
Honble KOTHARI, J.–This Revision Petition is directed against the judgment dated 13.9.1994 whereby the learned Addl. Sessions Judge, Gangapur City, dismissed the appeal filed by the accused petitioner Ishwar Lal upholding the judgment of conviction and punishment dated 14.5.1990 passed by the learned Addl. Chief Judicial Magistrate, Gangapur City, in Cr. Case No. 506/1984 for offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (Herein after referred to as `the Act of 1954). (2). According to the prosecution case on 16.9.1994 Food Inspector Kewal Chand Jain PW 1 went for inspection to the the shop of Ishwar Lal where the petitioner was carrying on his business of Gud, Oil, Sarso, Bura, Vanaspati, Besan and other grocery articles on retail basis. He asked for giving sample of mustard oil for payment which was being sold by the accused petitioner. However, the said accused petitioner refused to give the sample of the said mustard oil and even refused to take the notice of information in Form No. 6 to take sample for analysis under Rule 12 of the prescribed form from the said Food Inspector. (3). According to the complaint (Ex.P-6) filed by the said Food Inspector before the Trial Court in the printed form, item No. 8, 10 and 11 were ticked right and they were the allegations against the accused petitioner. Item No. 8 of the said complaint shows that the seller had refused to take Form No. 6 and also refused to give sample of the edible gods on payment. Item No. 9 which is significantly cut out or marked cross in the said complaint is that the seller had insulted the Food inspector and `prevented him from taking sample by using force. In Item No. 10 the allegation against the accused petitioner is that the seller had failed to produce the license for the calendar year. In Item No. 11 the allegation is that the seller had refused to sign the Form Report. (4). The learned Magistrate who tried the said complaint, convicted and sentenced the accused petitioner vide order dated 14.5.1990 and awarded punishment of one year rigorous imprisonment and a fine of Rs. 500/- and upon failure of payment of fine, to further undergo three months simple imprisonment. The accused petitioner filed an appeal against the said order before the learned Addl. The learned Magistrate who tried the said complaint, convicted and sentenced the accused petitioner vide order dated 14.5.1990 and awarded punishment of one year rigorous imprisonment and a fine of Rs. 500/- and upon failure of payment of fine, to further undergo three months simple imprisonment. The accused petitioner filed an appeal against the said order before the learned Addl. Sessions Judge, who dismissed the said appeal vide impugned order dated 13.9.1994. (5). This Court while admitting the instant revision petition on 23.9.1994 suspended the sentence awarded to the accused petitioner. (6). Mr. A.K. Gupta, the learned counsel for the petitioner urged mainly on the following points:– (i) That the `refusal on the part of the accused petitioner to give sample of the `Mustard Oil in question does not amount to `Prevention which is an offence punishable under Section 16(i)(c) of the Act which reads as under:– ``S. 16(i)(c)–Prevents a food inspector from taking a sample as authorised by this Act. (ii) That in the sanction order (Ex.P-3) which is signed by the Chief Medical and health Officer, Sawai Madhopur, Head Quarter, Karauli the signatures re is in different ink and the said order in which the blanks have been filled up with different ink, shows non-application of mind by the Competent Authority, while passing the sanction order for prosecution and therefore, the punishment and conviction imposed upon the petitioner deserves to be set-aside. (7). Mr. Gupta placed reliance upon the judgment given in the case of Narain Prasad vs. The State of Rajasthan & Anr., AIR 1978 (Raj.) 162 wherein para 22 of the said judgment, the Full Bench of this Court has held as under:– ``Section 16(1)(b) makes a person liable to punishment, who prevents the Food Inspector from taking the sample as Authorised by the Act. To prevent the Food Inspector from taking a sample, the accused must do something which makes it impossible for him to take the sample. The prevention does not mean only obstruction by physical force, but it may even involve threat. The dealer can also prevent a sample being taken by destroying or otherwise making non-available the article of food itself, or by making it impossible for the Food Inspector to take the sample by creating a row. The prevention does not mean only obstruction by physical force, but it may even involve threat. The dealer can also prevent a sample being taken by destroying or otherwise making non-available the article of food itself, or by making it impossible for the Food Inspector to take the sample by creating a row. Sometimes the act of simple refusal may be accompanied by such a conduct and demeanour that it may amount to preventing but mere inaction on on the part of the vendor in not giving the sample would not tantamount to preventing the Food Inspector from taking the sample. This Court further held as under:– ``Where the Food Inspector asked the accused petitioner to give the sample of ``Ghewar on payment but he refused to do so and also refused to take the notice in the prescribed form and also created row and thereby prevented the Food Inspector form taking the same, it was held that the conduct of the accused petitioner fell within the mischief of Section 16(i)(b) of the Act. (8). Learned counsel for the petitioner also placed reliance upon the judgment given in the case of Municipal Council, Jaipur & Anr. vs. Mangilal, 1975 (2) Cr.L.J. 1728. The relevant extract of which is also reproduced here:– ``The word ``preventing must necessarily imply the doing of some act on the part of the accused which may make it impossible for the Food Inspector to obtain the sample in exercise of his powers under Section 10(1) of the Act. There are various ways in which preventing may be achieved and visible obstruction is not the sine qua non of the act of preventing. It may be brought about either when the accused destroys the thing out of which the sample is to be taken or say he closes the premises where the thing may be lying. But the mere refusal on the part, of the accused to deliver the sample of milk will not amount to preventing within the meaning of Section 16(i)(b) of the Act. The word ``refusal and the word ``preventing have different shades of meaning. Sometimes, accompanied by the requisite conduct or demeanour as act of refusal may amount to preventing but one cannot say generally that mere refusal in every case will amount to preventing within the meaning of Section 16(1)(b) of the Act. (9). The word ``refusal and the word ``preventing have different shades of meaning. Sometimes, accompanied by the requisite conduct or demeanour as act of refusal may amount to preventing but one cannot say generally that mere refusal in every case will amount to preventing within the meaning of Section 16(1)(b) of the Act. (9). On the point of requirement of application of mind while sanctioning the prosecution under the said Act, he relied upon the Judgment given in the case of State vs. Suraj Mal, 2000 WLC (Raj) U.C. 322. He also placed reliance on the Judgment given in the case of State vs. Ram Swaroop, (2000) WLC (Raj) U.C. 503. (10). On the other hand, Mr. Arun Sharma, the learned Public Prosecutor has tried to strongly support the impugned judgments. (11). Having heard the learned counsel for the parties and after perusal of the record of the case, this case once again throws up, the sorry state of affairs and the manner in which the State Authorities prosecutes the accused persons under a well meaning Legislation. There cannot be any denial that the said Prevention of Food Adulteration Act, was enacted by Parliament with the pious object of providing and protecting good health to its citizens. It enacted this law with a purpose to provide adulteration free food stuffs to the citizens of the country. Therefore, the Prevention of Food Adulteration Act, was zealously sought to be guarded by the Parliament providing strict punishment for those who were found to be guilty for making adulteration of the food stuffs. It is also undeniable that the law has held the field for over 50 years and many cases under this enactment have consumed the time, place and energy of the Courts of law at the different level of the country. Many acquittals with exceptional convictions here and there is the hands of superior Courts appear to have not yet driven home the points for prosecution under this law. The State Authorities who were fastened with the liability to prosecute the guilty under this law, appear to have not taken any clue from the reasons give by the judgments while acquitting the accused persons of various charges or offences in this law. (12). The instant case is again an example of such failure of the prosecuting agency. The State Authorities who were fastened with the liability to prosecute the guilty under this law, appear to have not taken any clue from the reasons give by the judgments while acquitting the accused persons of various charges or offences in this law. (12). The instant case is again an example of such failure of the prosecuting agency. The sanction order in the present case does not show application of mind of the Competent Authority while sanctioning the prosecution in the present case, which appears to have been signed in the mechanical manner by the C.M. & H.O. The said order appears to have been signed the order for prosecution brought before him already prepared. While on the other hand, learned counsel for the petitioner seems to be apparently succeeding while contending that mere `refusal on the part of the accused petitioner to give sample of the `Mustard Oil in question does not amount to `prevention which is an offence under Section 16(1)(b) of the Act. Since, the accused petitioner did not do anything positive to `prevent the Food Inspector from taking the sample, therefore, even for his reticent refusal to give sample of the mustard oil in question which could have been adulterated, he cannot be punished. (13). The irony seems to be that learned counsel has in his favour the aforesaid two judgments one is of Division Bench and another one is of Full Bench, which are clearly binding on this Court which lay down that the word `refusal and the word `preventing have different shades of meaning and generally speaking mere `refusal cannot amount to `preventing and it should be accompanied by some act, `conduct or demeanour so as to fall within the more darker area of word `preventing. The Division Benchs view was upheld by the Full Bench in the Case of Narain Prasad vs. The State of Rajasthan & Anr. (Supra), where the Full Bench in para 22 of the judgment have clearly said that to ``prevent the Food Inspector from taking the sample, the accused must do something which makes it impossible for him to take the sample. Learned counsel for the petitioner contends that mere and simple ``refusal to give sample in the present case un-accompanied by any positive act on the part of the petitioner cannot make out the case of ``preventing and, therefore, the conviction deserves to be set-aside. Learned counsel for the petitioner contends that mere and simple ``refusal to give sample in the present case un-accompanied by any positive act on the part of the petitioner cannot make out the case of ``preventing and, therefore, the conviction deserves to be set-aside. Learned P.P. is unable to controvert this legal position. May be the Food Inspector have to be more emphatic and take police help, while taking the samples or at least get attestation of two independent witnesses for such refusal to give sample which travels into the realm of `prevention punishable under section 16(1)(c) of the Act. (14). On account of the aforesaid weakness on the part of the prosecution as indicated above, this Court is left with no other alternative option but to allow this revision petition and set- aside the impugned orders dated 13.9.1994 and 14.5.1990. (15). Accordingly, this revision petition is allowed. The impugned orders dated 13.9.2004 and 14.5.1990 are set-aside. The conviction and sentence imposed upon the petitioner for offence under Section 7/16 of the aforesaid Act of 1954 is set-aside. Since, the sentence of the accused petitioner was suspended, his bail bonds are discharged.