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Municipal Council and anr. Vs. Mangilal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1975()WLN343
AppellantMunicipal Council and anr.
RespondentMangilal
Cases ReferredSambhal v. Jhamman Lal
Excerpt:
.....meaning of section 16(1)(b) of the act. section 10 which we have reproduced in extenso enables the food inspector to break open any package in which any articles of food may be contained. if the food inspector were serious about the taking of the sample, he could have taken possession of the container and opened it and taken the desired sample. the accused had shown his willingness to accompany the food inspector wherever he desired to take him. the mere negative approach of the accused or his not cooperating with the food inspector, to our mind, was not tantamount to preventing the food inspector from taking the sample.;(b) words & phrases - 'preventing' & 'refusal' in the prevention of food adulteration act--concept of.;the word 'refusal' and the word 'preventing' have..........word 'prevents' occurring in section 16(1)(b) of the act.2. on 17-1-68 shri a. p. goyal p.w. 1, a food inspector of the municipal council came across the accused mangilal who was carrying two barrels of milk on his cycle. the food inspector stopped the accused and asked him to sell a sample of milk for testing as the food inspector suspected that the milk in the two barrels was adulterated. the accused, however, refused to give the sample in the presence of the motbirs. the inspector tried to persuade the accused to give the sample, but he refused to do so but expressed his willingness to be taken wherever the inspector would like to take him. on these facts the food ins-specter lodged the complaint against the accused in the court of municipal magistrate first class, jaipur city no......
Judgment:

Kan Singh, J.

1. This is an appeal by the Municipal Council of Jaipur against the appellate order of the learned Additional Sessions Judge No. 4, Jaipur City, dated 6-10-69 in a case under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954, hereinafter shortly referred as the 'Act'. It raises a short point involving interpretation of the word 'prevents' occurring in Section 16(1)(b) of the Act.

2. On 17-1-68 Shri A. P. Goyal P.W. 1, a Food Inspector of the Municipal Council came across the accused Mangilal who was carrying two barrels of milk on his cycle. The Food Inspector stopped the accused and asked him to sell a sample of milk for testing as the Food Inspector suspected that the milk in the two barrels was adulterated. The accused, however, refused to give the sample in the presence of the Motbirs. The Inspector tried to persuade the accused to give the sample, but he refused to do so but expressed his willingness to be taken wherever the Inspector would like to take him. On these facts the Food Ins-specter lodged the complaint against the accused in the court of Municipal Magistrate First Class, Jaipur City No. 1.

The learned Magistrate convicted the accused for the offence under Section 16(1)(b) of the Act and sentenced him to six months rigorous imprisonment with a fine of Rs. 1,000, in default three months further rigorous imprisonment. The accused appealed and the learned Additional Sessions Judge, who heard the appeal, allowed it, he set aside the conviction and sentence and acquitted the accused. The learned Additional Sessions Judge was of the view that a mere refusal to sell the milk for analysis to the Food Inspector was not preventing within the meaning of Section 16(1) (to) of the Act and he relied on Bishandas v. State AIR 1957 Punj 99 : 1957 Cri LJ 656 and State v. Laljibhai : AIR1967Guj61 to fortify himself.

3. It is in these circumstances that the Municipal Council lodged the appeal after obtaining leave from this Court. The point arising for our consideration is as to what is the connotation of the word 'prevent' occurring in Section 16(1)(b) and whether a mere refusal to sell a sample of milk to a Food Inspector amounts to preventing as would be an offence under Section 16(1)(b) of the Act. We may read Section 10 of the Act, which defines the powers of the Food Inspector:

Section 10. Powers of Food Inspectors:

(1) A Food Inspector shall have power:

(a) to take samples of any article of food from-

(i) any person selling such article;

(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;

(iii) a consignee after delivery of any such article to him; and

(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken;

(c) with the previous approval of the Health Officer having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority to prohibit the sale of any article of food (in the interest of public health).

(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis.

(3) Where any sample is taken under Clause (a) of Sub-section (1) or Sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.

(4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may toe dealt with as hereinafter provided:

Provided that where the Food Inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the Food Inspector deems fit and the vendor shall execute the bond accordingly.(5) The power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale;

Provided that the power to break open the door shall be exercised only after the owner or any other person in occupation of the premises, if he is present therein, refuses to open the door on being called upon to do so;

Provided further that the Food Inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, (Act V of 1898), relating to the search or inspection of a place by a police officer executing ,a search warrant issued under that Code.

(6) Any material found in the possession of a manufacturer of any article of food or in any of the premises occupied by him as such and being apparently of a kind which may be employed for purposes of adulteration and for the possession of which he is unable to account to the satisfaction of the Food Inspector, may be seized by the Food Inspector and if necessary a sample of such material submitted for analysis to a public analyst.

(7) Where the Food Inspector takes any action under Clause (a) of Sub-section (1), Sub-section (2), Sub-section (4) or Sub-section (6) he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.

(8) Any Food Inspector may exercise the powers of a police officer under Section 57 of the Code of Criminal Procedure 1898 (Act V of 1898) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.

(9) Any food inspector exercising powers under this Act or under the rules made thereunder who-

(a) vexatiously and without any reasonable grounds of suspicion seizes any article of food; or

(b) commits any other act to the injury of any person without having reason to believe that such act is necessary for the execution of his duty shall be guilty of an offence under this Act and shall be punishable for such offence with fine which may extend to five hundred rupees.

4. A perusal of the above section shows that a Food Inspector has power to take sample of any article of food from any person who is selling such article or who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. The power conferred in this section includes the power to break open the package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale. The relevant portion of Section 16 reads as follows:

Section 16. Penalties. (1) If any person-

(a) Whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores, sells or distributes any article of food-

(i) which is adulterated or misbrand-ed or the sale of which is prohibited by the Food (Health) Authority in the interest of public health;

(ii) other than an article of food referred to in Sub-clause (i) in contravention of any of the provisions of this Act or of any rule made thereunder; or

(b) prevents e food inspector from taking a sample as authorised by this Act; or.

he shall, in addition to the penalty to which the 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:.

The term 'prevents' having not been defined by the statute we have to construe it in its ordinary dictionary sense. According to the Chambers's Dictionary it means : 'to preclude, to stop, keep, or hinder effectually, to keep from coming to pass'. According to the Oxford Dictionary it means : 'To provide beforehand against the occurrence of (something); to render (an act or event) impracticable or impossible by anticipatory action : to preclude, stop, hinder.' The word 'prevent' according to Webster's Third New International Dictionary means : frustrate, circumvent : to deprive of power or hope of acting, operating or succeeding in a purpose : to ward off, hinder the progress, appearance or fulfilment of'. The word 'refusal' according to the Webster's Third New International Dictionary means : 'rejection of something demanded, solicited, or offered for acceptance.'

To our mind, the underlying concept of refusal is the declining to do a certain thing by the person himself, whereas the concept of preventing is to offer hindrance or obstruction of some kind to another so that he may not be able to do the desired thing. In the case reported as Jaunpur Municipality v. Maluk Das 1971 Cri LJ 705 (All.), a Division Bench of the Allahabad High Court has said this regarding the word 'prevent' occurring in 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.

We find ourselves in complete agreement with the above dicta. The word 'preventing' must necessarily imply the doing of some act on the part of the accused which may make it impossible for the Food Inspector to obtain the sample in exercise of his powers under Section 10(1) of the Act. There are various ways in which preventing may be achieved and visible obstruction is not the sine qua non of the act of preventing. It may be brought about either when the accused destroys the thing out of which the sample is to be taken or say he closes the premises where the thing may be lying. But we are unable to hold that the mere refusal on the part of the accused to deliver the sample of milk amounted to preventing within, the meaning of Section 16(1)(b) of the Act. Section 10 which we have reproduced in extenso enables the Food Inspector to break open any package in which any article of food may be contained.

If the Food Inspector were serious about the taking of the sample, he could have taken possession of the container and opened it and taken the desired sample. The accused had shown his willingness to accompany the Food Inspector wherever he desired to take him. The mere negative approach of the accused or his not co-operating with the Food Inspector, to our mind, was not tantamount to preventing the Food Inspector from taking the sample. We may observe that while construing a penal statute we have to take the words as they are and construe them strictly in preference to giving a liberal construction. The word 'refusal' and the word 'preventing' have different shades of meaning. Sometimes. accompanied by the requisite conduct or demeanour an act of refusal may amount to preventing, but one cannot say generally that mere refusal in every case will amount to preventing within the meaning of Section 16(1)(b) of the Act. The matter has to be viewed in the light of the facts and circumstances of each case.

5. Learned Public Prosecutor invited our attention to two cases reported as Municipal Board, Sambhal v. Jhamman Lal : AIR1961All103 and District Board, Patna v. Sadhu Sao : AIR1971Pat222 . The cited Allahabad case has been discussed in the case we have referred to above (vide Para. 5 of the judgment). The learned Judges have pointed out in Jaunpur Municipality's case 1971 Cri LJ 705 (A11.) that the observation in Jhamman Lal's case was obiter dictum. Therefore, we are unable to accept the case cited by the learned Public Prosecutor for our guidance.

6. In the Patna case. : AIR1971Pat222 an officer of the Health Department demanded from the accused the sample of oil for analysis. The accused refused to give the sample and the learned Judges held that this amounted to preventing the Food Inspector from taking the sample. With all respect, we are unable to agree. We may notice that earlier to this there was another decision of the Patna High Court reported as Rewati Raman Sharma v. Jamshedpur Notified Area Committee : AIR1970Pat104 which was, of course, by a Single Bench. In that case it was held that Section 10 of the Act empowered a Food Inspector to take the sample, but did not create any obligation on the part of the salesman or any other person mentioned therein to actively cooperate with the Food Inspector in taking the sample by physically handing over the article to him. Thus, according to the learned Judge, not co-operating by not handing over any article to the Food Inspector will not amount to preventing him from taking the sample,

The learned Judge added that 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). The learned Judge had followed : AIR1967Guj61 (State of Gujarat v. Laljibhai Chaturbhai) and he dissented from the Allahabad view (Municipal Board, Sambhal v. Jhamman Lal : AIR1961All103 . This case was not noticed in the later Patna case. We find ourselves in agreement with this view. As we have said already, it will depend on the facts and circumstances of each case whether a refusal in giving a sample will not amount to preventing, but in the circumstances obtaining in the present case we are unable to hold that the Food Inspector was prevented from taking the sample.

7. We do not find any force in the appeal and consequently hereby dismiss it.


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