H. Swarup, J.
1. The Notified Area Committee, Jaunpur, has filed this appeal against the order of the Sessions Judge acquitting the respondent Maluk Das Gupta of the offence Under Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act), In appeal filed against the order of the trial court convicting him of the offence.
2. The case of the prosecution in brief was that on 2-11-1966, at about 3 p. m., the Food Inspector, Sri Rajni Kant Agnihotri found Maluk Das Gupta selling mustard oil at his shop without a licence. Suspecting that the oil may be adulterated he demanded a sample of the mustard oil but Maluk Das Gupta refused to give the sample,
3. The defence was that the accused was neither selling mustard oil nor did he prevent the Food Inspector from taking the sample. The visit of the Food Inspector was itself denied. The witnesses were alleged to have given false evidence as they were under the influence of the Chairman of the Notified Area Committee.
4. The trial court came to the conclusion that the accused had exhibited for sale at his shop mustard oil and by refusing to give sample thereof had prevented the Food Inspector from taking the sample. On these findings it convicted the accused Under Section 16(1)(b) of the Act and imposed a sentence of six months' rigorous imprisonment and a fine of Rs. 1500 and in default of payment of fine to undergo R. I. for a period of three months. In appeal the learned Sessions Judge held that the accused had caused no physical obstruction to the Food Inspector's taking of sample of the mustard oil. He also did not believe the prosecution case that the accused was selling or exhibiting for sale mustard oil at his shop. On these findings he held that no offence had been committed by the accused as he could not be said to have prevented the Food Inspector from taking sample Under Section 10(1)(a) of the Act.
5. The learned Counsel for the appellant assailing the judgment of the lower appellate court, contended that the finding arrived at by the lower appellate court to the effect that the accused was not selling mustard oil at his shop was liable to be reversed as it was not based on a correct appreciation of the evidence on record. He has further submitted that mere refusal to give sample when demanded by the Food Inspector will amount to preventing the Food Inspector from taking the sample within the meaning of Section 16(1)(b) of the Act. In support of this contention the learned Counsel has relied on the case of Municipal Board v. Jhammanlal : AIR1961All103
6. It is not, however, necessary In this case to decide whether the finding of the first appellate court that the accused was not selling mustard oil is correct or not, as even on the assumption that the accused was 'selling' oil by exhibiting it for sale, he cannot be convicted the reason being that the evidence in the case does not establish that the accused had prevented the Food Inspector from taking the sample.
7. Section 10 of the Act casts no duty or obligation on the vendor of an article of food to tender or offer the sample of the article to the Food Inspector. It confers, on the other hand, a power on the Food Inspector to take sample of any article of food from any person selling the same. Mere refusal to give sample or refusal to comply with the request of the Food Inspector to sell him the goods for sample cannot amount to preventing the Food Inspector from taking the sample Under Section 10(1)(a) of the Act. Section 16(1)(b) of the Act does not make refusal to give Sample an offence. It only makes a person liable to penalty if he prevents a Food Inspector from taking the sample as authorised by the Act.
The word prevent', according to the Webster's New English Dictionary, as relevant for this case means 'to frustrate, to deprivate of power of acting, operating, proceeding, etc.,; to ward off, circumvent; to hinder the progress, or fulfilment.' The phrase 'prevent from' is used in sense of 'hindering'. Prevention Under Section 16 must, therefore, necessarily imply the doing of some act on the part of the dealer which may make it impossible for the Food Inspector to obtain the sample in exercise of his power Under Section 10(1) of the Act. The dealer may 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 hindrance in his way. The dealer must be shown to have either prevented the Food Inspector from acting in the furtherance of his duty Under Section 10(1)(a) of the Act or to have made the goods disappear so that the taking of sample be prevented before he can be made liable Under Section 16(1)(b) of the Act.
8. It was held in the case of Public Prosecutor v. Murugesan : AIR1954Mad199 that where a person made impossible the taking of sample of milk by getting it mixed up with other milk which was boiling in a pan, the Food Inspector had been prevented from taking the sample In the case of Bishan Das v. State it was held that mere refusal to give sample could not amount to preventing the Food Inspector from taking the sample. Prevention may not mean only an obstruction by physical force and may include even a threat. In the present case, however, there is no evidence either of any obstruction by physical force or of any threat which may have deterred the Food Inspector from taking the sample. It cannot, therefore, be held that the. Food Inspector in the present circumstances was prevented by the accused from taking the sample.
Although in the case of A.I.R. 1961 All 103 (supra) an observation was made to the effect that no overt act is necessary for preventing the Food Inspector from taking sample the case was not decided on the basis of this proposition of law. It was held in that case that the action of the vendor in leaving the shop and disappearing amounted to an overt act and that the same had made it impossible for the Food Inspector to obtain sample from the person selling the article. The emphasis was on the words 'from the person selling such article,' and the Court had taken the view that if the seller himself disappeared, the taking of sample, from the person selling the article could not be possible. In these circumstances, the observation made in the case of Jhamman Lal A.I.R. 1961 All 103 (supra) could be only in the nature of obiter dictum. Further the facts existing in the present case are entirely different from the facts found in that case and that case is clearly distinguishable.
9. Where a dealer does no positive act but merely refuses giving the sample voluntarily on demand, he cannot be deemed to have prevented the Food Inspector from taking sample within the meaning of Section 16(1)(b) of the Act. Even if the allegations of the prosecution in the present case are fully believed, the accused can be deemed to have done nothing except to have not complied with the request of the Food Inspector to give him the sample of the mustard oil. This by itself could not amount to preventing the Food Inspector from taking the sample of the article if he so desired by exercise of his powers Under Section 10(1)(a) of the Act. The accused could not, therefore, be held guilty of the offence Under Section 16(1)(b) of the Act.
10. The acquittal of Maluk Das Gupta cannot thus be interfered with. The appeal is accordingly dismissed.