Mere refusal to give a sample of food to a Food Inspector, without any physical obstruction or threat, constitutes prevention under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954.

G.N.Prasad, J.

1. This appeal has been preferred by the District Board of Patna with special leave under Sub-section (3) of Sec. 417 of the Code of Criminal Procedure against an order of acquittal recorded in favour of the respondent by a first class Magistrate of Dina-pore.

2. The prosecution case is that on the 20th November, 1965, Dr. Mohammad Illiyas (P.W. 2), an Assistant Health Offi- cer of the District Board and invested with the powers of a Food Inspector, visited the shop of the respondent in village Arap along with two peons--Rajrup Singh (P.W. 1) and Nanda Singh (P.W. 3) --and found him selling mustard oil. Upon his inquiry, the respondent gave out the sale rate of mustard oil as Rs. 4-00 per seer. Thereupon Dr. Illiyas (P.W. 2) demanded from him six chhataks of the oil by way of sample for the purpose of sending it for examination by the Public Analyst and offered to him Rs. 1-50 as the price, but the respondent refused to give the sample to the Food Inspector, who was thus prevented from taking the sample. Subsequently, the Food Inspector (P.W. 2) forwarded a complaint to the District Medical Officer of Health who sanctioned the prosecution of the respondent. A complaint was. accordingly, filed and the respondent was put on trial. The charge framed against the respondent was that he had committed an offence under Sec.16(1) (b) of the Prevention of Food Adulteration Act, 1954, by preventing the Food Inspector (P. W. 2) "from taking sample of mustard oil on tendering the price for examination by Public Analyst by refusing the sale of sample of mustard oil and also did not allow him to take sample of mustard oil for the said purpose". The respondent denied his guilt and pleaded not guilty.

3. The learned trying Magistrate accepted the evidence of the Food Inspector (P. W. 2), as supported by P.Ws. 1 and 3, and held that from the materials on record it had been proved "that the Food Inspector demanded sample of mustard oil from the accused on payment of price but the accused refused to give sample and that when the said Food Inspector merely desired to take the sample, accused did not allow him to take the same". The learned Magistrate, however, took the view that the mere refusal to give the sample to the Food Inspector unaccompanied by any physical obstruction, threat or assault, did not amount to preventing the Food Inspector from taking a sample. In support of his view, the learned Magistrate relied upon the decision of a learned single Judge of the Gujarat High Court in State of Gujarat V/s. Laljibhai Chaturbhai, AIR 1967 Guj 61. The learned Magistrate further held that the Food Inspector (P. W. 2) was not justified in asking for the sample from the respondent as there was no satisfactory evidence to indicate that he was carrrying on transactions of sale in the shop, the licence for which stood in the name of his father Sitaram Sao. Accordingly, the learned Magistrate found the respondent not guilty and acquitted him.

4. This appeal originally came up for hearing before Bahadur. J. sitting sing- ly but his Lordship noticed that there was some conflict of decisions amongst the various High Courts on the point whether to constitute the offence of preventing a Food Inspector from taking sample, there must be a physical obstruction or threat or an assault, and since there was no direct decision of this Court on the point, his Lordship referred this case for hearing by a Division Bench, That is how the matter has come up before us.

5. Before dealing with the questions raised before us in this appeal, it would be convenient to set out the relevant provisions of the Prevention of Food Adulteration Act (Act 37 of 1954). "Sale" has been defined in Clause (xiii) of Sec.2 of the Act in the following terms:

" Sale with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption