M.R.A. Ansari, J.
(1) The Municipal Corporation of Delhi, the appellant herein, filed a complaint against the respondent Lakshmi Narain for an offence under section 16(1)(b) and (c) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) with the allegation that on 23-3-1961 the Food Inspector of the Corporation. went to the factory of the respondent for the purpose of taking samples from the finished food products manufactured in the factory like tomato sauce, vinegar, jams and jellies etc. The respondent who was the proprietor of the factory and who was present in the factory at that time, however, prevented the Food Inspector from taking a sample of the articles of food on the ground that the respondent held a license under the Fruit Products Order, 1955 and that the Food Inspector had no authority under the Act to take samples of the said products. The learned Magistrate, before whom the complaint was filed, acquitted the respondent on two grounds, namely.
(I)that the factory of the respondent was governed by the provisions of the Fruit Products Order and the provisions of the Act did not apply to the articles of food manufactured by the respondent and that, thereforee, the Food Inspector of the Corporation had no authority to take samples of the food products manufactured by the respondent and (ii) that on the evidence it was not proved that the respondent had prevented the Food Inspector from taking a sample of the food products.
(2) The Corporation filed an appeal in this Court against the acquittal of the respondent. The appeal was dismissed on the ground that it was not filed by the complainant who had filed the complaint in the trial Court, namely, the Municipal Prosecutor and that the appeal was filed by the Corporation which was not the complainant in the trial Court. This Court did not consider the appeal on merits. Against this judgment of the Court, the Corporation filed an appeal by special leave to the Supreme Court and the Supreme Court reversed the judgment of this Court and held that the Corporation was competent to file the appeal and the appeal filed by the Corporation was, thereforee. maintainable. The Supreme Court, thereforee, directed this Court to dispose of the appeal on merits. That is how the appeal has now come up again for consideration before us.
(3) As already stated, the learned trial Court acquitted the respondent on two grounds, namely,-
(I)that the respondent held a license for his factory under the Fruit Products Order and that, thereforee, the Food inspector of the Corporation had no authority to take a sample of the articles of food manufactured by the respondent and (ii) that on the evidence, the prosecution had not proved that the respondent had actually prevented the Food Inspector from taking the sample.
(4) We shall proceed to consider the first ground on which the respondent was acquitted by the learned trial Court.
(5) The learned trial Court gave the following reasons for holding that the Food Inspector had no authority to take samples from the respondent factory:-
(I)that Rule 50 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) under which a manufacturer had to take out a license under the Act did not apply to Fruit Products covered by the Fruit Products Order, 1955. (ii) that Rule 9(a) of the Rules authorised the Food Inspector to inspect any such establishments as were licensed under the Act and since the factory in question required no license under the Act, the Food Inspector had no authority to inspect the factory, and (iii) that the alleged act of the Food Inspector in demanding the samples from the respondent was not authorised by the provisions of the Act and unless his act was authorised under the law, there could have been no prevention by the respondent.
(6) The reasoning of the learned Magistrate does find support from an unreported judgment of the Punjab High Court in Cr. A. No. 996 of 1961 decided on 29-10-1962 (State v. Raj Kumar). But the rule laid down by that case is no longer good law in view of the judgment of the Supreme Court in Municipal Corporation of Delhi v. Shiv Shanker : 1971CriLJ680 , which specifically referred to Raj Kumar's case and did not approve of the rule laid down in that case.
(7) The Supreme Court considered the effect of the Fruit Products Order on the provisions of the Act and held that the Act or any provisions thereof could not be deemed to have been repealed by the Fruit Products Order. The following passages from the judgment of the Supreme Court bring out the relative scope of the Act and the Fruit Products Order :-
'THEobject and purpose of the Adulteration Act is to eliminate the danger to human life and health from the sale of unwholesome articles of food. xx. xx. xx. xx. xx. The Essential Commodities Act on the other hand has for its object the control of the production, supply and distribution of, and trade and commerce in, essential commodities xx. xx. xx. xx. xx. In spite of this difference in their main objects, control of production and distribution of essential commodities may, to an extent from a broader point of view include control of the quality of the essential articles of food and, thus considered, it may reasonably be urged that to some extent it covers the same field as is covered by the provisions of the Adulteration Act. The two provisions may, thereforee, have within these narrow limits co-terminous fields of operation.'
'THEprovisions of the Adulteration Act and of the Fruit Order to which our attention was drawn seem to be supplementary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any provision of the Adulteration Act or the Rules made there under so as to compel the court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions on the manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters. The former do not render compliance with the latter impossible, nor does compliance with the former necessarily and automatically involve violation of the latter.'
'INview of the foregoing discussion it seems to us that the two statutory provision can harmoniously operate without causing confusion or resulting in absurd consequences and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order under the Essential Commodities Act. The challenge on the ground of implied repeal must, thereforee, be rejected.'
(8) It would, thereforee, follow that the fact that the respondent held a license under the Fruit Products Order for the manufacture of such articles of food does not deprive the Food Inspector of The power to take samples of the same articles of food under the Act. It must, thereforee, be held that the Food Inspector did have the authority under section 10(2) of the Act to take samples of the articles of food manufactured by the respondent in his factory and the respondent had no legal justification for preventing the Food Inspector from taking such samples.
(9) The next question for consideration is whether the respondent prevented the Food Inspector from taking the samples of the food products as alleged by the prosecution. The respondent is alleged to have committed an offence under section 10(1)(b) and (c) of the Act which read as follows :-
'16.(1)-If any person- (b) prevents a food inspector from taking a sample as authorised by this Act; or (c) prevents a food inspector from exercising any other power conferred on him by or under this Act, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees.'
(10) Before considering the evidence adduced by the prosecution to prove that the respondent had prevented the Food Inspector from taking a sample of the food products or that he had prevented the Food Inspector from exercising any power conferred on him under the Act, it would be necessary to consider the meaning of the word 'prevents' occurring in clauses (b) and (c) of sub-section (1) of section 16 of the Act. In Public Prosecutor v. Murugesan : AIR1954Mad199 , the Madras High Court explained the meaning of the word 'preventing' occurring in section 14(3) of the Madras Prevention of Adulteration Act. In that case, the Sanitary Inspector wanted to take a sample of the milk which was being conveyed for sale by one Murugesan to a hotel. Murugesan refused to give the sample of the milk to the Sanitary Inspector and on the other hand, handed over the milk to the servant of the hotel who poured the milk into the milk pan in which the milk was boiling. On these facts, the Madras High Court held that Murugesan had prevented the Sanitary Inspector from taking a sample of the milk. A contention was urged before the High Court on behalf of Murugesan, namely, that in order to bring the offender under the section some overt act on his part which was calculated to prevent the local executive officer from taking the sample was necessary and that mere words of refusal would not he sufficient to bring the act under that section. Ramaswami, J. repelled this contention with the following observations:-
'ONthe facts alleged there can be no doubt that this accused, in the manner set out above and which need not be repealed, has effectively prevented the local executive officer from taking the sample and for this no further overt act is necessary than what has happened. In other words, the learned Second Class Magistrate seems to have thought that unless there was a physical clash and an effective disabling of the executive officer from taking the sample, no offence would be made out, I need not say that this is a very dangerous extension of the plain meaning of the word 'prevent', which would certainly take in an act ascribed to the accused in this case,'
(11) In Bishan Dass Telu Ram v. State , the vender had merely refused to give a sample of the food article to the Food Inspector even on payment. It was held that mere refusal to give the sample was not the same thing as prevention which need not have an element of physical obstruction but involves some act which hinders an Inspector from taking a sample. The rule laid down by the Punjab High Court in the above case was not fully approved by a Division Bench of the Allahabad High Court in Municipal Board v. Jhamman Lal : AIR1961All103 and on the other hand, the rule laid down by the Madras High Court in Public Prosecutor's case was followed. In that case, the Food Inspector went to the shop of the accused and asked him to give a sample of the mustard, oil which was being stored for sale in his shop. The accused instead of complying with the request of the Food Inspector left the shop and promised to come shortly. The Food Inspector waited for some time, but the accused did not turn up. The servant of the accused who was also sitting in the shop was then asked by the Food Inspector to supply the sample. He said that sample could only be given by the accused and he was going to call him. He also left the shop. The Food Inspector waited for an hour and a half, but neither the accused nor the servant came back. It was contended before the High Court on behalf of the accused that before there can be a prevention, there should be some kind of overt act. The High Court negatived this contention and observed as follows :-
'IFa person disappears from the shop, in our opinion, he has done an overt act by means of which he has made it impossible for the Food Inspector to obtain a sample from him. Apart from this fact we do not think that in cases of prevention an overt act is necessary.'
(12) The High Court dissented from the view expressed by the Punjab High Court in Bishan Dass's case, referred to above, and observed as follows:-
'THElearned Single Judge distinguished the case reported in Court v. Ambergate etc. Rly. Company 20 L.J.Q.B. 460, where it was held that : 'To prevent' does not mean only an obstruction by physical force but it may involve a threat.'
(13) With respect, we might say that the learned single Judge did not consider the point that by disappearance, the accused had made it impossible for the Food Inspector
'TOobtain sample 'from the person selling such article', which he was entitled to obtain under S. 10(1) and thereby he had prevented the Food Inspector in taking the sample as authorised by the Act.'
(14) The judgments referred to above were again considered by the Patna High Court in Rewati Raman Sharma v. Jamshedpur Notified Area Committee : AIR1970Pat104 . In the case, the Food Inspector went to the shop of the accused and wanted to take sample of the mustard oil and Haldi; but the accused refused to sell the sample to the Food Inspector. The High Court held that mere refusal by the accused to sell the sample to the Food Inspector without any further act or omission on his part did not amount to preventing the Food Inspector from taking the sample. The High Court observed that-
'SECTION 10 of the Act empowers a Food Inspector to take the sample. It does not create any obligation on the part of the salesman or any other person mentioned therein to actively co-operate with the Food Inspector in taking the sample by physically handing over the article to him. It was for the Food Inspector to take the sample and if the salesman prevented him from doing so, he could be liable for an offence under section 16(1)(b) of the Act.'
(15) After referring to the dictionary meaning of the word 'to prevent' according to the Oxford English Dictionary, the High Court observed as follows:-
'THISmeans that there must be some action on the part of the person preventing any act, which would render the performance of that act impracticable or impossible. Such action of that person may be in the shape of physical obstruction or show of force or threat or show of any gesture which hinders performance of the act. Simply not co-operating by not handing over any article to the Food Inspector will not amount to preventing him from taking. the sample. Mere refusal to sell the article unaccompanied by any gesture indicating that the Inspector would not be allowed to take the sample does not amount to prevention as contemplated by section 16(1)(b).'
(16) The last case cited on this point is that of the Gujarat High Court in Teja Mohan v. Mangubhal Mehta and another AIR 1070 Guj 209. The facts of that case were that the accused was seen carrying two cans containing the milk with him and lie was selling milk. The Food Inspector asked him to sell a sample of the milk to him. The accused however refused to sell the milk to him and instead of giving the milk, the accused threw away the milk. A contention was advanced before the High Court that in order to constitute prevention, the prosecution must prove not only that the accused had the intention of preventing the Food Inspector from taking the sample but also that such intention must be accompanied by some physical obstruction, threat or assault on the Food Inspector. In other words, it was contended that there must be an overt act of one of the three types evincing such intention. In support of this contention, reliance was sought to be placed upon an earlier decision of the same High Court in the case of State of Gujarat v. Laljibhai Chaturbhai : AIR1967Guj61 , in which it was held as follows :-
'WHETHERthe Food Inspector was prevented or not would depend on the case in order to constitute the offence. There must be a physical obstruction or a threat or an assault. Mere refusal to give a sample would not amount to such prevention. Nor would merely leaving a shop, we do not know for what purpose, amount to prevention.'
(17) M. U. Shah J., who decided the case of Teja Mohan dissented from this earlier view and preferred to follow the view expressed by a Division Bench of the Bombay High Court in State v. Kanu Dharma Patil : AIR1955Bom390 , which was a case under section 4 of the Bombay Harijan Temple Entry Act in which the term 'prevent' also occurred. In that case, the Bombay High Court observed as follows :-
(18) As a matter of legal construction it is not possible to hold that the word 'prevent' means only an obstruction by physical force. Stround's Judicial Dictionary makes this position clear. To prevent, says the author, does not mean only an obstruction by physical force, e.g., in the phrase that one party to a bargain 'prevented or discharged the other from fulfillling his part thereof it is not intended to suggest that the prevention is a result of physical obstruction.
(19) In some cases, prevention may take the form of physical obstruction. The gates of the temple may be closed on the entry of the Harijan in the temple may be barred by putting a physical obstruction in his way. But, it is equally possible that in some cases, where Harijans who are not aware of the strength of their cause seek to enter the temple in a timid and diffident way, they might be prevented from making an entry merely by the use of words strong and loud.
(20) Applying the above principles, M. U. Shah, J., held that-
'IN my opinion, it is sufficient if in a given case, an accused person with the intent 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 a physical obstruction, threat or assault is not necessary to constitute the act of prevention so as to constitute an offence within the meaning of section 16(l)(b) of the Act. There needs be no overt act.'
(21) The preponderance of view appears to be that a mere refusal to give the sample without anything more will not amount to prevention. There need not be a physical prevention or even a threat held out against the Food Inspector. But any act or omission which has the effect of preventing the Food Inspector from taking a sample will amount to prevention.
(22) We shall now proceed to consider the evidence in this case in the light of the principles we have enunciated. In the complaint filed against the respondent in the trial Court, the following allegations were made:-
'THATShri Lakshmi Narain accused prevented the aforesaid Food Inspector from taking samples of articles of food which was manufactured for sale by the said company and forcibly got his store room bolted from inside through his. servant and threatened to dire consequences if the premises. were not vacated. He also prevented him from inspection of his bolted and tinned food products manufactured for sale by the said company.'
(23) The charge framed against the respondent was in the following terms:
'THEREis a charge of the prosecution against you that on the 23rd March, 1961. at about 4.00 P.M., you refused to give the sample of food products, from the Victoria Manufacturing Company, situate at 1/2 Roop Nagar, Subzi Mandi, to Shri Dina Nath, Food Inspector, Municipal Corporation, Delhi, got the store-room bolted from inside by an employee forcibly and turned out the aforesaid Food Inspector by giving him a threat. Hence show cause why you should not be punished under section 7/16 of the: Prevention of Food Adulteration Act, 1954.'
(24) The allegations made in the complaint as well as in the charge would undoubtedly constitute an offence under section 16(1)(b) of the Act as, according to these allegations, the respondent not only refused to give the sample of the food products, which is a negative act, but also got the store-room bolted from inside and threatened to forcibly turn out the Food Inspector from the premises, which are positive acts on the part of the respondent. It is now to be considered to what extent these allegations have been proved by the prosecution evidence.
(25) P.W.2 is Shri Dina Nath, Food Inspector of the Corporation, who wanted to take the samples of the food products from the factory of the respondent. According to him, he told the respondent that he was the Food Inspector of the Corporation and had come to take samples of the finished food products manufactured by the respondent. He further stated that the respondent thereupon refused to give any sample. The Food Inspector explained to the respondent the provisions of the Act which authorised him to take the sample of various-articles of food. Even then the respondent refused to give the sample.
(26) P.W. 2 further stated that he then went towards his store-room with a view to take the samples. The respondent stood up from the chair and threateningly asked him to vacate the premises and also ordered his servants to bolt the store-room from inside. Finding that under these circumstances he could not take the samples, he informed Shri G. S. Bhatia, Zonal Health Officer. Shri Bhatia then came to the premises of the respondent and again asked him to give the sample to the Food Inspector, but the respondent flatly refused. Public Witness 3 is Shri G. S. Bhatia, Zonal Health Officer. He, of course, was not present when Public Witness 2 attempted to take the samples in the first instance. His evidence relates to what happened after he arrived at the premises of the respondent. He stated that he proceeded to the premises of the factory for the purposes of lifting samples through the Food Inspectors, that he explained to the respondent that he should give the samples of the products manufactured by him for sale, that the respondent raised the plea that the products in the factory were not finished goods, that Tie told the respondent that the products packed by him and placed in The varandah on the foot path near the varandah were finished products as they were being consigned and that he should give samples of these finished products, but that the respondent refused to give the samples even of those finished products. In his cross-examination, it was elicited that throughout his talk with the respondent the atmosphere was very pleasant, though the respondent exchanged a few hot words with Public Witness 2, the hot words being that the Food Inspector had no power to enter the factory and take samples and that the respondent knew better than the Food Inspectors. Public Witness 4, Shri Lekh Raj Bhutt, is another Food Inspector, who was present along with Public Witness 2. According to this witness, when Harnath Singh, C.S.I., directed Public Witness 2 to take the sample from the store, the respondent refused to give the sample and told Harnath Singh that he had no power to take the samples at all and also ordered his servants to bolt the door of the store and further asked the Food Inspectors to get out from the premises. Referring to what happened after the arrival of Shri Bhatia.
(27) P.W. 3, he stated that Public Witness 3 requested the respondent to give the sample of finished stuffs from the store or from the varandah where the wooden boxes of the finished stuffs were kept ready for disposal, but the respondent again refused to give the sample and uttered the same words, namely, to get out from the premises. Public Witness 5 is Shri Harnath Singh, C.S.I. He also stated that Public Witness 2 demanded a sample which the respondent refused saying that he was not authorised to take samples. He further stated that the respondent ordered his servant to bolt the store-room and asked the Food Iaspectors to please vacate the premises. Even alter the arrival of Shri G. S. Bhatia, the respondent refused to give the sample of the finished products also. P.W. 6 is Shri Charan Singh, another Food inspector. This witness narrated the incident in the following manner :-
'P.W.2 a.skcd the respoudent to give a sample of the food products manufactured by him, but the respondent refused to give the sample saying that he had a license from the Ministry of Agriculture and that the Food Inspector was not authorised to take samples from his factory. Public Witness 2 then referred to section 10 of the Act saying that he was entitled to take the sample. Even then the respondent refused to give the sample. Public Witness 2 telephoned to Public Witness 3 and the latter reached the premises. Public Witness 3 asked the respondent to give the sample, but the respondent refused saying the Food Inspectors of the Municipal Corporation were not authorised to lift samples from his factory. Public Witness 3 then asked the respondent to give samples which were lying packed in the varandah awaiting consignment from the factory, but the respondent refused to give the samples saying that they were not authorised to take the samples.'
(28) In cross-examination, he stated that the door leading from the office to store room remained open during their presence and there was no physical prevention by the respondent to prevent the Food Inspector to take the sample but verbally the respondent told that under the rules no sample could be taken from a fruit factory. Public Witness 7 is Shri O. P. Malhotra, another Food Inspector, who was present during this incident. According to him, when Public Witness 2 wanted to take the sample of the finished products, the respondent told him that the Food Inspector was not competent to enter the factory and lift samples and that even after the respondent was advised to give samples, he refused to do so. He further stated that Public Witness 3 wanted to go to the store room which was adjoining the office of the respondent the respondent checked him and asked two servants who were sitting in the store room to bolt the door which they did. He further stated that after Public Witness 3 arrived, the latter advised the respondent to give the samples, but the respondent refused.
(29) It would thus be seen that according to Public Witness s. 2, 4. 5 and 7, the respondent not only refused to give the samples to the Food Inspector Dina Nath but also asked his servants to bolt the door of the storeroom when Public Witness 2 was proceeding towards the store room with a view to take the samples and also asked the Food Inspectors to leave the premises. But, according to Public Witness 6, all that happened during the incident was that Public Witness 2 asked the respondent to give the samples and the respondent refused to give them saying that the Food Inspector had no authority under the Act to lake samples in view of the fact that he held a license from the Ministry of Agriculture. Public Witness 6 was categorical in saying that there was no physical provention offered by the respondent to the Food inspectors from taking the samples. He further stated that the door leading from the office to the store room remained open during their presence. The evidence of Public Witness 6 is, thereforee, in conflict with the evidence of Public Witness s. 2. 4, 5 and 7. Public Witness 6 has not been treated as hostile and there is no valid ground, thereforee, not to accept his evidence. That the evidence given by Public Witness 6 is more probable than the evidence given by the other witnesses is also apparent from the evidence of Public Witness 3, the Zonal Health Officer. According to Public Witness 3, the respondent refused to give the sample because, according to the respondent the Food Inspectors had no power to take the samples and that the respondent knew better than the Food Inspectors. Public Witness 3 also stated that throughout his talk with the respondent the atmosphere was very pleasant. The over all impression one gets from the evidence is that the Food Inspector wanted the respondent to voluntarily give the samples of the finished products found in his factory, but the respondent was not willing to give the samples to the Food Inspectors as, in his view, the Food Inspectors had no authority under the Act to take samples of the food articles in view of the license which the respondent held under the Fruit Products Order. It would also appear from the evidence that both sides referred to the relevant provisions of the Act and the Rules as well as to the provisions of the Fruit Products Order. No attempt appears to have been made by the Food Inspector to take a sample of the food products in spite of the refusal by the respondent to voluntarily give a sample of them. Even if the Food Inspectors were diffident to take the samples in the face of the refusal by the respondent to give the samples, Public Witness 3, who was a Zonal Health Officer, could have taken the samples in spite of the refusal by the respondent to give the samples. No attempt, however, appears to have been made even by Public Witness 3 to take a sample of the food articles when he found that the respondent was not willing to give the samples to him.
(30) The only material question put to the respondent under section 342 Criminal Procedure Code . was as follows :-
'IT is in prosecution evidence against you that on the 23rd March. 1961 at 4 P.M. at Victoria Manufacturing Company. Roop Nagar, Delhi, you refused to give samples of finished food products, manufactured by your company to Shri Dina Nath Food Inspector, Public Witness 2 when he demanded the same from you. Is it correct?'
The answer given was as follows :-
'THEevidence is false. I did not put any obstruction. There was not any finished article in the company, nor was any article lying there for sale.'
(31) From the question put to the respondent by the trial Court, it would appear that the trial Court considered the prosecution evidence as only amounting to this, namely, that the respondent had refused to give the samples of the food products to Public Witness 2 when he demanded the same from him. The learned trial Court did not consider the prosecution evidence as proving that the respondent had also bolted the door of the store-room and asked the Food Inspector to vacate the premises. We are of the view that the learned trial Court assessed the prosecution evidence correctly. It is obvious that the Food Inspector did not like to run the risk of taking the samples forcibly as there was a genuine doubt whether he had the authority under the Act to take the samples in view of the fact that the respondent held a license under the Fruit Products Order and Rule 50 of the Rules exempted the respondent from taking out a license under the Act. From the documents which have been exhibited by the respondent in his defense, namely, the letter dated 24-5-1961 from the Municipal Health Officer of the Corporation to the respondent and a letter from the Under Secretary to the Government of India to the Secretary to the Government of U.P., Public Health Department, it would appear that there was a genuine doubt whether the establishments which were licensed under the Fruit Products Order came within the purview of the provisions of the Act and whether the Food Inspectors had the authority under the Act to inspect such establishments and take samples of the food products manufactured in such establishments. That was why the Food Inspectors in this case refrained from attempting to take the samples against the refusal of the respondent.
(32) thereforee, the prosecution evidence only proves that the respondent merely refused to voluntarily give the samples to the Food Inspector but did not do anything else by way of preventing the Food Inspector from taking the samples. The respondent has, thereforee, not prevented the Food Inspector from taking the samples within the meaning of section 16(1) (b) and (c) of the Act. He has not committed any offence under the said provisions of the Act.
(33) Although the learned trial Court was not right in its view that the Food Inspectors had no authority under the Act to take the samples from the factory which held a license under the Fruit Products Order, still the acquittal of the respondent has to be upheld on the ground that the prosecution evidence did not prove that the respondent prevented the Food Inspector from taking the samples. The acquittal of the respondent is, thereforee, confirmed and the appeal is dismissed.