Murtaza Husain, J.
1. This criminal revision is directed against the order dated 2-9-1976 passed by the Chief Judicial Magistrate, Faizabad in case No. 2263 of 1975 of his court. Through the impugned order the learned Chief Judicial Magistrate has held that a charge under Section 7/16 of the Prevention of Food Adulteration Act stood made out against the revisionists by the material on record and the aforesaid charge shall be framed against them. The contention of the revisionists before this Court is that the material on record does not make out any offence under Section 7/16 of the Prevention of Food Adulteration Act against the revisionists.
2. The facts of the case, giving rise to this revision, are that a complaint under Section 7/16 of the Prevention of Food Adulteration Act has been filed by the Municipal Medical Officer of Health, Faizabad (opposite party No. 1) against the revisionists in the Court of Chief Judicial Magistrate, Faizabad. The allegations of the complaint are that in the noon of 18-12-1973 Sri Brij Kishore Singh, Food Inspector, was on checking duty near the octroi barrier of Mohalla Saadat Ganj in the city of Faizabad. Shyam Lal, revisionist No. 2 came there with five containers full of milk. The Food Inspector asked him to sell sample of that milk. Shyam Lal Yadava refused to give its sample till the owner of that milk, namely, Chhedi Lal revisionist No. 1 arrived. Within a short while revisionist No. 1 also came there. As soon as he saw the Food Inspector he told Shyam Lal not to give sample of milk to him. After that warning both the revisionists ran away leaving the containers of milk and Shyam Lal's bicycle etc., on the spot. The Food Inspector collected all those articles and took same to police station cantonment in order to lodge there but the Head Constable refused to accept those articles as there was no accommodation at that police station for keeping those articles. The Food Inspector then took those articles to the office of Faizabad Municipal Board where Shyam Lal revisionist turned up in the afternoon and was handed over all the seized articles by the Food Inspector. It was pleaded in the complaint that both the revisionists had committed an offence under Section 7/16 of the Prevention of Food Adulteration Act as they had prevented the Food Inspector from taking a sample of the milk which was in Shyam Lal's possession and which sample the Food Inspector was authorised by the aforesaid Act to take.
3. When the revisionists were summoned they pleaded that taking the entire allegations of the complaint, as they were, no offence under Section 7/16, Prevention of Food Adulteration Act could possibly be made out against them as they had done no overt act to prevent the Food Inspector from taking the sample of milk which he proposed to take. This plea did not find favour with the learned Chief Judicial Magistrate. He rejected the same and passed the impugned order.
4. The only point requiring consideration of this Court is whether or not taking the allegations of the complaint, on their face value, any offence under Section 7/16, Prevention of Food Adulteration Act stands made out against the revisionists.
5. In Municipal Board, Sambhal v. Jhamman Lal 1960 All WR (HC) 490 a Bench of this Court had laid down that:
If a person either by an overt act or by his omission prevents the Food Inspector from obtaining sample from him for example, when he leaves the shop and does not return, he is guilty of an offence under Section 16(b) of the Prevention of Food Adulteration Act as it then stood.
Another Bench of this Court considered that decision in Municipal Board v. Maluk Das Gupta 1971 Cri LJ 705 and it was laid down that:
Prevention under Section 16 must imply doing of some act on part of dealer which may make it impossible for Food Inspector to obtain sample in exercise of his power under Section 10(1). Before a dealer can be made liable under Section 16(1)(b) he must be shown to have either prevented the Food Inspector from acting in furtherance of his duty under Section 10(1)(a) or to have made goods disappear so that taking of sample is rendered impossible.
The above proposition of law was followed by a learned single Judge of this Court in Shri Ram v. State 1976 Cri LJ 736. It was laid down in that authority that:
Mere refusal of vendor to give sample to the Food Inspector on demand is not sufficient to constitute an offence under Section 16(1)(b). There must be an overt act on his part to hold that the Inspector was prevented from taking the sample.
In Narain Prasad v. State of Rajasthan 1978 Cri LJ 1445 a Full Bench of Rajasthan High Court considered the powers of the Food Inspector to take sample in cases where the vendor cooperates in giving the same and also where he does not co-operate in that behalf and it was observed that:
Section 10(1)(a)(i) gives the Inspector power to take sample of article of Food from any person selling such article. Sub-section (2) of Section 10 gives the Food Inspector power to enter any place where the article of food is exposed for sale. Sub-section (4) of Section 10 provides for seizure of adulterated food. The Inspector has also power to break open the door or any package in which article of food is kept. For all purposes the Inspector has power to exercise his power of search and seizure of a police officer under the Criminal Procedure Code. The Food Inspector is also authorised to exercise powers of a police officer under Section 57 of the Code i.e., to arrest a vendor if he refuses to tell his name and residence. Section 11 prescribes the procedure to be followed by the Food Inspector while taking sample. Therefore, the Food Inspector can follow one of the two modes, one where vendor co-operates, the other where he refuses to co-operate.
All that can be said in the present case is that Shyam Lal revisionist had refused to co-operate with the Food Inspector in selling sample of milk when required to do so. It was open to the Food Inspector to take sample in the presence of witnesses and in accordance with the rules even after the revisionists had refused to co-operate and had run away leaving the milk cans on the spot. 'Mere running away from the place of occurrence could not hold them guilty,
6. In Sukhdeo Krishna Kadam v. State of Maharashtra 1979 Cri LJ 264 (Bom) the milk vendor from whom a sample of milk was demanded by the Food Inspector ran away from the spot leaving behind the pot containing the milk. It was laid down that it could not be said that the accused had prevented the Food Inspector from taking the sample as authorised by the Act, because there was nothing in law to prevent the Food Inspector after waiting for a reasonable time, from taking the sample of milk in presence of the Panch and making a Panchnama of the said fact as provided by Sub-section (7) of Section 10 of the Act. These observations fully apply, to the facts of the present case. I am, therefore, of the opinion that allegations of the complaint filed by opposite party No. 1 against the revisionists do not make out an offence of prevention of Food Inspector by them from taking a sample as authorised by the Act, even if those allegations are taken to be true on their face value. They can consequently not be said to have committed any offence under any clause of Section 16 of the Prevention of Food Adulteration Act. There is absolutely no allegation in the complaint to make out the offence under Section 7 of the said Act against them, The learned Chief Judicial Magistrate was therefore not justified in turning down the plea of the revisionists regarding the non-maintainability of their prosecution launched by opposite party No. 1. The impugned order passed by him cannot be sustained and this revision has to be allowed. I, therefore, allow it and after setting aside the impugned order of the Chief Judicial Magistrate, Faizabad quash the proceedings of the case which are pending against the revisionists in his court.