Mere refusal to give a sample to the Food Inspector does not amount to preventing him from taking the sample within the meaning of Section 16 (1) (b) of the Prevention of Food Adulteration Act, 1954. Prevention involves some act or omission on the part of the dealer that makes it impossible for the Food Inspector to obtain the sample.

M.L. Shrimal, J.-Tersely speaking shorn of unnecessary details the prosecution case as disclosed at the trial is that on Sept. 6, 1970 Food Inspector Shri V.D. Sharma visited the shop of the petitioner Narain Prasad and found him selling sweet-meats. The Food Inspector after disclosing his identity demanded from him a sample of’Ghewar.’ The accused-petitioner refused to take the prescribed notice in the prescribed form No. 6 and also refused to sell him the sample of’Ghewar’. He was tried for contravening the provisions of Section 16 (1) (b) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ‘the Act’). The learned Magistrate First Class, Ajmer found the accused guilty under Section 16 (1) (b) of the Act and sentenced him to one day’ s simple imprisonment and a fine of Rs. 750/-and in default of the payment of fine to further undergo simple imprisonment for 15 days, vide his judgment dated Nov. 29, 1971.

2. Being aggrieved by the judgment of his conviction and sentence passed by the learned Magistrate, the accused petitioner went in appeal before the learned Sessions Judge, Ajmer but without any success.

3. On revision, the case came up for decision before Hon’ble the Chief Justice on Sept. 2, 1977. During the course of arguments his Lordship noticed that two contradictory views were expressed by different Division Benches of this Court on the same point. Lodha J. and J.P. Jain in Criminal Appeal No. 108 of 1969 (Municipal Council, Jaipur vs. Ganesh Narayan, decided on 7-11-1972) held that an overt act or physical obstruction is not the sine qua non of an offence under Section 16(1)(b) of the Act, while in Criminal Appeal No. 578 of 1970, (Municipal Council, Jaipur vs. Mangilal reported in 1975 RLW 577): (1975 CrLJ 1728)) it was held by another Division Bench that if the accused had shown his unwillingness to give sample to the Food Inspector, but was willing to accompany the Food Inspector wherever he desired to take him, then it was negative approach of the accused and the act of the accused in not co-operating with the Food Inspector would not tantamount to preventing the Food Inspector from taking the sample. Mere refusal to give sample to the Food Inspector did not amount to preventing him within the meaning of Section 16 (1) (b) of the Act.

4. In the opinion of Hon’ble the Chief Justice these two views of the learned Judges heading the two Division Benches were contradictory to each other and in his opinion it was necessary to settle the law on the subject and, therefore, he referred this case for hearing by a Full Bench, that is how the matter has come up before us.

5. Themain question which needs decision by this Bench is ‘whether a mere refusal to sell article of food to the Food Inspector amounts to preventing the Food Inspector from taking sample as authorised by the Act within the meaning of Section 16 (1) (b) of the Act or not? Whether it amounts to preventing the Food Inspector from exercising any other power conferred on him by or under the Act within the meaning of Section 16 (1) (b) of the Act or not? There is a conflict of opinion amongst the different High Courts including our own Court on this point.

6. Before dealing with various cases it will be useful to notice the relevant statutory provisions at this stage. Relevant portion of Section 10 of the Act, which defines the powers of the Food Inspector, as it stood prior to the Amendment Act No. 34 of 1976 is reproduced below:--“10. Powers of Food Inspector --A Food Inspector shall have power--

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

.(i) any person selling such article;

.(ii) anyperson 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) tosend 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 h