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Kailash Gir Vs. V.K. Khare, Food Inspector and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1981CriLJ1555
AppellantKailash Gir
RespondentV.K. Khare, Food Inspector and anr.
Cases ReferredAyodhya Bhagat v. State of Bihar
Excerpt:
.....injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - the appeal by the petitioner to the additional sessions judge, shajapur failed. their object is to prevent failure of justice where there has been only technical breach of rules not going to the root of the case as such. it, therefore, follows that unless irregularity or omission has misled or caused prejudice to the accused in his defence and has occasioned a failure of justice, it will not vitiate the trial......class. shujalpur in criminal case no. 433 of of 1976, convicting the petitioner for preventing the food inspector respondent no, 1, mr. v. k. khare, from taking a sample of milk, the offence punishable under section 16(1)(c) of the prevention of food adulteration act (hereinafter called the act) and sentencing him to rigorous imprisonment for six months with rs. 1,000/- fine and in the alterative further rigorous imprisonment for three months, revised.2. on 7-8-1976 at about 7 a. m. near village bhilkhedi, while the food inspector v. k. khare (p. w. 1) apprehended the petitioner, who was carrying about four kilograms of milk contained in a canister on his cycle, and asked him to produce his licence authorising him to deal in milk and to sell him sample of milk so that he could get it.....
Judgment:
ORDER

C.P. Singh, J.

1. By this petition, Kailash Gir seeks to have the judgment of the Additional Sessions Judge, Shajapur, sitting at Shujalpur in Criminal Appeal No, 54 of 1978, confirming the judgment of the Judicial Magistrate First Class. Shujalpur in Criminal Case No. 433 of of 1976, convicting the petitioner for preventing the Food Inspector respondent No, 1, Mr. V. K. Khare, from taking a sample of milk, the offence punishable under Section 16(1)(c) of the Prevention of Food Adulteration Act (hereinafter called the Act) and sentencing him to rigorous imprisonment for six months with Rs. 1,000/- fine and in the alterative further rigorous imprisonment for three months, revised.

2. On 7-8-1976 at about 7 a. m. near village Bhilkhedi, while the Food Inspector V. K. Khare (P. W. 1) apprehended the petitioner, who was carrying about four kilograms of milk contained in a canister on his cycle, and asked him to produce his licence authorising him to deal in milk and to sell him sample of milk so that he could get it analysed by a public Analyst by handing over to the petitioner form VI (Ex. P. 1), the petitioner without either producing a licence or selling the sample of milk to the Food Inspector hastily turned his cycle towards Shujalpur and with the milk went away. The Food Inspector in the presence of two witnesses including Savarlal (P. W. 2) prepared the memorandum (Ex. P. 2) and ultimately on these facts the petitioner charged with and tried for prevent- ing the Food Inspector from taking a sample punishable under Section 16(1)(c) of the Act. His defence was that he had been falsely implicated. He examined two witnesses one of them Mansingh, an attesting witness to the memorandum (Ex. P. 2) and Anr. Ganpat tending to prove that the petitioner did not carry on the business of selling milk. The learned Judicial Magistrate First Class, Shujalpur, instead of framing a charge under Section 16(1)(b), framed a charge inter alia under Section 16(1)(c). He relying upon the two witnesses convicted and sentenced him. The appeal by the petitioner to the Additional Sessions Judge, Shajapur failed.

3. The first contention for the petitioner is that the charge framed being inter alia under Section 16(1)(b) of the Act, the petitioner could not have been convicted for violation of Section 16(1)(c) of the Act.

4. The contention has only superficial attraction. It appears that the learned Magistrate inadvertently referred to Section 16(1)(b) and not Section 16(1)(c) of the Act which actually had come to be in force on the date of the offence. What, however, is important is that the petitioner was charged in unequivocal terms with preventing the Food Inspector Shri V. K. Khare from taking a sample of milk from him (the petitioner). This prevention before the amendment of the Act by Act Nu. 34 of 1976 was punishable under Section 16(1)(b) and it appears that the learned Magistrate inadvertently mentioned Section 16(1)(b) and not Section 16(1)(c) of the Act in the charge. Sections 215 and 464 of the Criminal Procedure Code deal with the effect of errors or even omissions to frame a charge respectively. Their object is to prevent failure of justice where there has been only technical breach of rules not going to the root of the case as such. The two sections read together lay down that whatever the irregularity in the framing of a charge, it is not fatal unless there is prejudice caused to the' accused. It, therefore, follows that unless irregularity or omission has misled or caused prejudice to the accused in his defence and has occasioned a failure of justice, it will not vitiate the trial. (See W. Slaney v. State of M. P. AIR 1956 SC 116 : 1956 Cri LJ 291). In this case the learned Magistrate having specified the details constituting the offence, his mere misdescription of the particular sub- 1981Kailash Gir v. V. K. Kharo, Food Inspector clause of Section 16(1) of the Act amounts to a mere technicality, particularly because the petitioner all along had knowledge what case he was to meet during his trial and it having not been shown that he was in any way misled into taking his defence or prejudiced by the wrong mentioning of the Sub-clause in (Sic Section 16(1)).

5. The next contention for the petitioner is that the petitioner could not have been convicted under Section 16(1)(a)(ii) of the Act. I find that there is no force in this contention either. The relevant section so far as applicable to the petitioner would read as follows :

If any person... by himself... stores (for sale) any article of food...other than an article of food which is adulterated within the meaning of Sub-clause (m) of Clause (i-a) of Section 2 or misbranded within the meaning of cl. (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;...in contravention of any of the provisions of this Act or of any rule made thereunder; ... shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than one thousand rupees.

The relevant evidence of Mr. V. K. Khare (P. W. 1) is that he had demanded the licence from the petitioner for selling milk as he had also handed over form VI (Ex, P. 1) expressing his intention to buy the sample of milk from him but the petitioner refusing to give any sample of milk contained in a canister on his cycle went away towards Shujalpur Mandi There is no evidence that the petitioner at that time had the requisite licence. Rule 50 of the Prevention of Food Adulteration Rules requires vendors to have a licence. The petitioner having contravened the rule he has been rightly punished under Section 16(1)(a)(ii) of the Act.

6. The final contention for the petitioner is that his conduct in having gone away on his cycle with the canister containing milk had not amounted to preventing the Food Inspector from taking a sample.

7. It is no doubt true- that there is no statutory definition of the word 'prevent' but this word has come to be interpreted on a number of occasions by different High Courts. Their Lordships of the Rajasthan High Court in Municipal Council, Jaipur v. Mangilal 1975 FAC 284 : 1975 Cri LJ 1728 referred to various dictionaries (viz. Chambers, Oxford and Webster's Third New International Dictionary) to ascertain the meaning of the word 'prevent'. ,The word 'prevent' ordinarily means to stop or to hinder, to preclude to render impracticable or impossible by anticipatory action, to circumvent, to deprive of power of acting or to frustrate. It is clear from the authorities that the verb 'to prevent' is not an equivalent of the word 'to refuse'. Prevention includes something more than mere refusal and it will depend upon the circumstances of a particular case whether the act of the accused had amounted to prevention within the meaning of Sub-clause (c) of Clause (1) of Section 16 of the Act. In the case of State of Gujarat v. Laljibhai AIR 1967 Guj 61 : 1967 Cri LJ 376 (1) the accused had, while refusing to give a sample of milk to the Food Inspector, raised his hands. The act of the accused was held to be mere refusal on his part to give sample as it was not accompanied by any threat or assault. The case of Nazim v. State AIR 1957 All 829 : 1957 Cri LJ 1384 is really not an authority under the Prevention of Food Adulteration Act. His Lordship in that case was concerned with deciding whether the act of the accused had amounted to wilfully obstructing the Food Inspector within the meaning of Section 30 of the U. P. Pure Food Act. In that case when asked by the Inspector to stop, the accused, instead of obliging the Inspector, ran away with the bucket of milk and when chased threw away the milk and it was held that the act of the accused had amounted to obstructing the Inspector in the performance of his duty within the meaning of Section 30 of the U. P. Pure Food Act. In the case of Rewati Raman Sharma v. Jamshedpur Notified Area Committee 1973 FAC 260 : 1970 Cri LJ 583 (Pat), in the absence of evidence to the effect that the Food Inspector insisted on taking the sample and the accused speaking that he would not allow him to do so without offering any physical obstruction, it was held that Rewati Raman Sharma in that case had not prevented the Food Inspector from taking the sample. The gist, however, of the authorities is that whether an act of the accused amounts to prevention is dependent upon the evidence and circumstances of each case.

8. The Gujarat High Court in Teja Mohan v. Mangubhai Mehta AIR 1970 Guj 209 came to lay down that though an accidental or unintentional act of an accused resulting in such prevention cannot create criminal liability, it would be sufficient if in a given case an accused person with intention to prevent a Food Inspector from taking the sample does an act which renders it impossible for the Food Inspector to take a sample as authorised by the Act, A positive action in the form of physical obstruction, threat or assault is not necessary to constitute the offence of prevention. Such a narrow and restricted meaning cannot be given to the word 'prevent' when considered in the proper context in which it is used in Section 16(1)(b) (now 16(1)(c)) and having regard to the nature, design and object of the Act and the dictionary meaning of the word 'prevent'. This case was followed by S. Wasiuddin, J. in Ayodhya Bhagat v. State of Bihar 1973 FAC 89 (Pat). On application of the principles of law laid down in these cases with regard to particularly the dictionary meaning of the word 'prevent' to the evidence adduced, I entertain no doubt that the petitioner without having complied with the request of Mr. V. K. Khare, Food Inspector (P. W. 1) for showing him his licence or selling him sample of milk for which Mr. V. K. Khare had tried to give him form VI making his intention of buying the sample of milk manifest, the petitioner with the milk contained in a canister hastily went away on his cycle, thereby making it impossible for Mr. Khare to take his sample. The act of the petitioner was not mere refusal in these circumstances. It had frustrated the request of Mr. Khare for securing the sample for its being analysed by a Public Analyst later on. The act of the petitioner in hastily taking his cycle with the container with milk had constituted sufficient force so as to make the act of the petitioner amount to prevention within the meaning of Section 16(1)(c) of the Act, The petitioner has been rightly found guilty of offence punishable under Section 16(1)(c) of the Act.

9. In the foregoing circumstances, there being no force in this revision petition, it is dismissed. The conviction of the petitioner is modified to read under Section 16(1)(c) of the Act for preventing the Food Inspector Mr. Khare from taking a sample of milk on 7-8-1976 near village Bhilkhedi. As regards the question of sentence, the only minimum awardable has been awarded.


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