V. D. BHARGAVA, J.

( 1 ) THIS is an appeal against acquittal in a case under Section 7/16 (b) of the Prevention of Food adulteration Act.

( 2 ) THE Food Inspector reached the shop of Jhamman Lal on 26-2-1958 at about 2 p. m. There were four drums of sarson oil at the shop and also mungphali oil which was exposed for sale. He asked Jhamman Lal, respondent No. 1 to give; him a sample of mustard oil. But Jhamman, Lal 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 Jhamman Lal did not turn up. Tota Ram, who appears to have been also sitting on the shop was then asked by the Food Inspector to supply the sample. He said that sample could only be given by Jhamman Lal and that he was going to call Jhamman Lal. He also left the shop. The Food Inspector waited for an hour and a half, but neither Tota Ram nor Jhamman Lal came: back. The Food Inspector had gone with witnesses Bhola (P. W. 3), Ram Samp, Rafi Uddin (P. W. 2) and Mohammad Ismail (P. W. 4 ). He thereafter made a report against Jhamman Lal that Jhamman Lal prevented the Food inspector from obtaining sample from him and Tota Ram had made the statement that the sample would be given by Jhamman Lal. So far as these facts are concerned, they have been proved by the prosecution witnesses. On behalf of Jhamman Lal defence had been produced to the effect that the Food Inspector had never gone to his shop to ask for a sample.

( 3 ) THE trial Court believed the prosecution story and convicted both Jhamman Lal and Tota Ram under Section 7/16 (b) of the Prevention of Food Adulteration Act. The accused filed an appeal and the Sessions Judge allowed the appeal on the ground that in order to prevent sample being taken there should have been some overt act. It was further held that it was open to the Food inspector in the absence of Jhamman Lal to take a sample from the tin and therefore, it could not be said that the Food Inspector had been prevented from taking the sample. On these grounds the sessions Judge allowed the appeal and set aside the conviction and sentence against both the accused. The Municipal Board aggrieved by that decision filed this appeal in this Court.

( 4 ) THE case was argued by Mr. Iqbal Ahmed, counsel for the appellant and Mr. P. C. Chaturvedi as amicus curiae in support of the contention of the appellant.

( 5 ) SECTION 10 (1) of the Act gives power to the Food Inspector:

"to take samples of any article of food from:- (i) any person selling such article. "

Section 10 (4) also provides that;"if any article intended for food appears to any Food Inspector to be adulterated or mis-branded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt as hereinafter provided. "

Section 16 reads as follows:If any person - * * * (b) prevents, a Food Inspector from taking a sample as authorised by this Act. " it has been urged by Mr. P. C. Chaturvedi that when a person leaves the shop he prevents the food Inspector from taking a sample as authorised by this Act, because one of the methods authorised by this Act by which he can take sample under this Act is from any person selling such article. If the person, who was selling the article, by his conduct disappears, then, in that event he is prevented from taking sample in the manner authorised by this Act.

( 6 ) ON behalf of the respondent it has been urged that the Food Inspector was not prevented from taking the sample because under Sub-section (4) of Section 10 he could have seized the article and carried it away. The argument on behalf of the respondent does not appear to be correct. The powers under Sections 10 (1) and 10 (4) are entirely different. Section 10 (4) does not deal with taking of samples at all. Section 10 (1) only deals with the taking of the sample. Thus Section 10 (4), in our opinion is really meant not for the purpose of taking sample. If the Food Inspect