M.C. Desai, J.
1. The applicants were convicted for the offence of Section 16(1)(b) and (c)(i) of the Prevention of Food Adulteration Act by a Judicial Magistrate, first class. The case against them was they sell milk, that on the day of the occurrence a Food Inspector took a sample of milk from them, that they refused to accept the notice given to them by the Inspector in compliance with the provisions of Section 11(1)(a), that they refused to accept one part of the sample given to them by the Food Inspector in compliance with the provisions of Section 11(1)(c)(i). that they refused to accept the price of the sample tendered to them by the Food Inspector in compliance with the provisions of Section 10(3) and that they refused to sign the receipt for the price and the labels put on three bottles in which three portions of the sample were kept.
There is sufficient evidence to prove these facts and the findings of fact cannot he challenged in revision. A portion of the sample of the milk was sent for chemical analysis and was found to be of unadulterated milk. If a person sells adulterated food, he is guilty under Section 16(a); if a person 'prevents a Food Inspector from taking a sample as authorised by this Act', he is guilty under Section 16(1)(b), and if a person 'prevents a Food Inspector from exercising any other power conferred on him by or under this Act' he is guilty under Section 16(1)(c).
The trial Court was of the view that by the acts mentioned above the applicants committed offences of Section 16(1)(b) and (c); I do not understand how in the operative part of its judgment it added (i) to (c). When the matter went up in appeal before the Sessions Judge he took notice of the allegations that the applicants refused to accept the notice and the price and refused to sign the three bottles; but be seems to have been under the impression that the applicants were convicted for selling adulterated milk.
He wrongly mentioned in the beginning of his judgment that they had been convicted under Section 16(1)(a); he also committed the blunder of stating in his judgment that the sample of milk was found by the Public Analyst to be adulterated, and lastly when he came to deal with the sentence imposed by the trial Court, he said that food adulteration must be dealt with severely. It is difficult to understand how the appellate Court committed the mistake o thinking that the applicants were convicted under Section 16(1)(a). It said nothing about the offences of Section 16(1), (b) and (c); it did not at all discuss whether the above-mentioned acts proved to have been done by the applicants constituted the offences of Section 16(1)(b) and (c).
2. There is no question of the offence of Section 16(1)(a); the applicants have not been convicted of it. The offence of Section 16(1)(b) also has not been committed, because the applicants are not alleged to have prevented the Food Inspector from taking a sample as authorised by the Act; the evidence admittedly is that he did take a sample of the milk. The refusal of the applicants to receive the price of the sample and the notice and to sign the receipt and the labels does not amount to their preventing the Inspector from taking a sample; those acts are to be done by the applicants after the Inspector has taken a sample. The evidence is that when the Inspector asked for a sample, the applicants at once gave him a sample.
The third offence of Section 16(1)(c) also has not been committed by the applicants, because they have not prevented the Inspector from exercising any other power conferred on him by or under the Act. The powers that are conferred upon a Food Inspector are mentioned in Section 10; it is headed as 'Powers of Food Inspectors'. The section has several sub-sections, but all sub-sections do not deal with powers of a Food Inspector; some deal with his powers and some with his duties. There is a distinction between 'power' and 'duty'; 'power' is a thing that may be done or is authorised to be done, while 'duty' is a thing which must be done.
The acts mentioned in Sub-section (1) are the acts which have been expressly described as a Food Inspector's powers; the sub-section begins with the words 'A Food Inspector shall have power' etc, Sub-section (2) also contains a Food Inspector's powers and begins with the words 'Any Food Inspector may enter.' The act mentioned in Sub-section (3) to be done by a Food Inspector is on the other hand not a power but a duty; the cost of the sample 'shall be paid to the person from whom it is taken'. The acts mentioned in Sub-section (5), (6) and (8) are powers and are expressly called powers, but the act mentioned in Sub-section (7) is a duty.
By refusing to accept the price of the sample the applicants might have prevented the Inspector from performing his duty but have certainly not prevented him from exercising a power. The legislature never intended to punish a vendor for refusing to accept the price; the refusal would not prevent the enforcement of the provisions of the Act in any manner. The only person to suffer on account of the refusal would be the vendor himself; it did not matter to the Inspector whether he accepted the price or not and he could go on exercising his powers and could prosecute the vendor for selling adulterated milk.
It is not alleged that the Food Inspector was prevented by the applicants from doing any other act mentioned in Sub-section (10). Section 11 does not deal with a Food Inspector's powers at all; it prescribes the procedure to be followed by him when he takes the sample; in other words it lays down his duties. The only duties which are relevant in the present case are that he must '(a) give a notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample' and '(c) (i) deliver one of the parts to the person from whom sample has been taken.' The Inspector offered a notice and one part of the sample to the applicants; he fully performed his duties by doing so.
The applicants by refusing to accept the notice and one part of the sample cannot, therefore, be said to have prevented him from performing his duties; in any case they cannot be said to have prevented him from exercising his powers. These two provisions have been enacted in the interests of the vendor and the legislature could not have contemplated to punish him for doing an act to prevent their compliance. The distinction between 'power' and 'duty' has this importance that the legislature may punish a vendor for preventing an Inspector from exercising his powers under the Act but has no necessity to punish him for preventing him from performing his duties towards him.
If the exercise of the powers is prevented, the public would suffer because the enforcement of the provisions of the Act would be prevented, but if the performance of the duties is prevented, only the vendor will suffer and he need not be punished further. A vendor must have notice of an intention of the Inspector's having the sample analysed so that he may retain a part of the sample given to him for use, as mentioned in Section 13, in case of necessity. Field J. stated in Parsons v. Birmingham Dairy Co. (1882) 9 QBD 172, that the provision is one of the protections taken by the legislature to protect against the contingency of the sample said to be adulterated being tampered with after it has left the vendor's possession.
Similarly a part of the sample is to be given to him so that if he disputes the correctness of the analysis of the part sent by the Inspector for chemical analysis or fears that the part might have been tampered with before the analysis, he may send his own part for another chemical analysis. Therefore, if a vendor refuses to accept the notice and a part of the sample offered to him, only he would suffer; his refusal would not at all stand in the way of his prosecution and conviction. That is why under Section 16(1)(c) only preventing a Food Inspector from exercising any power is made punishable and not preventing a Food Inspector from performing his duty.
A Food Inspector is bound to tender, a notice and a part of the sample to the vendor, but no obligation is cast upon the vendor to accept the notice and the part of the sample. The legislature contemplated refusal on the part of a vendor to receive a portion of the sample and, therefore, enacted Sub-section (2) of Section 11; if a vendor refuses to accept a portion of the sample tendered to him, the Inspector is required to inform the Public Analyst of the fact. Thus giving information to the Public Analyst of the fact that the vendor has refused to accept a portion of the sample is an alternative to the vendor's accepting the portion, and so long as an Inspector is not prevented from giving information to the Public Analyst of the fact, it cannot be said that he has been prevented from exercising any power.
The applicants did not stop the Inspector from writing to the Public Analyst that they had refused to accept a portion of the sample. There is no pro-vision in the Act which authorises a Food Inspector to require the vendor to sign the labels put on the bottles in which he keeps the three portions of the sample or to sign a receipt for the price of the sample paid to him; therefore, the applicants committed no offence whatsoever by refusing to sign the labels or the receipt for the price.
3. I find that the applicants have committed no offence at all. I allow the application, set aside the applicants' conviction and sentence and acquit them. The fines, if realised from them, shall be refunded.