Chinnasamy vs Food Inspector, Perundurai Town Panchayat

Ratnavel Pandian, J.—This revision petition is directed by the accused in C.C. No. 196 of 1976 on the file of the Sub Divisional Judicial Magistrate, Erode against the judgment made in C.A. No. 295 of 1976 on the file of the Court of Session, Coimbatore East Division, confirming the conviction under S.16(1)(b) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the sentence of rigorous imprisonment for a period of six months, passed by the trial magistrate.

The facts of the case which led to the prosecution, are as follows: On 3rd March 1976, at about 6 p.m. near the bus stand at Perundurai, the revision petitioner brought 50 litres of milk in a can on a cycle, to be supplied to the tea shop of P.W. 2. The Food Inspector of Perundurai Town Panchayat, examined as P.W. 1, demanded the accused to give a sample of milk for the purpose of analysis; but the accused, without giving the sample to P.W. 1, went inside the tea shop with the milk can and poured the milk into a vessel kept inside the shop, in which milk had already been stored (apparently purchased from some other milk vendors). Thereafter, the accused placed the empty can in front of the tea shop of P.W.

2, and left that place. P.W. 1 narrates the entire incident and states that he has been prevented from taking samples from the accused. The evidence of P.W. 1 is amply corroborated by P.W. 2, who is the tea shop owner. M.O. 1 is the empty can seized by P.W. 1 from the tea stall.

The accused, when questioned under S.313, Crl.P.C., denied the occurrence. The trial Magistrate, on a consideration of the entire facts and the recorded evidence, found that the accused has committed an offence punishable under S.16(1)(b) of the Act and consequently, convicted him thereunder and sentenced him as aforementioned. Aggrieved by the judgment of the trial court, the accused preferred an appeal before the lower appellate court. In the memorandum of grounds in the said appeal, the accused challenged the judgment of the trial court on the grounds that the evidence of P.Ws. 1 and 2 are contradictory in all material particulars, that there is no explanation for not obtaining the attestation by two independent persons from the busy locality wherein the tea stall is situate, that the trial court failed to note that no contemporaneous record was made at the time of the seizure of M.O. 1, and that there is no evidence to show that the accused brought the milk for the purpose of sale. During the course of the hearing of the appeal, learned counsel appearing for the appellant therein (revision petitioner) made an endorsement stating: "The appellant confines his appeal with reference to sentence only". Obviously, the conviction has not been canvassed before the lower appellate court.

However, the lower appellate court, in paragraph 5 of its judgment, has observed-

In view of this endorsement and as the evidence of P.Ws. 1 and 2 is acceptable, the finding of the accused guilty and the conviction passed by the lower court have to be upheld.

Thus, after considering the submission made by the learned counsel on the question of sentence, the lower appellate court agreed with the view taken by the trial court and thought it fit to confirm the sentence passed by the trial court and consequently dismissed the appeal. Hence this revision petition.

In the present revision petition'' Mr. Sundar Anandam, learned counsel appearing for the petitioner, raises two contentions, viz.-(1) That the judgment of the lower appellate court confirming the conviction without independently going into and finding the presence of the necessary ingredients constituting the alleged offence irrespective of the question whether the conviction was challenged or not, amounts to gross irregularity in the exercise of its appellate jurisdiction, and hence its judgment has to be set aside. (2) The ingredients necessary to constitute an offence under S.16(1)(b) of the Act, are absolutely lacking as there is no sufficient evidence for holding that the accused prevented P.W. 1, from taking the sample, and therefore, on this ground too the conviction has to be set aside.

Coming to the first contention, I may state even at the outset that the lower appellate Court, except saying that in view of the endorsement made by the learned counsel for the appellant before it and of the evidence of P.Ws. 1 and 2, being acceptable, it is confirming the conviction, has not discussed the evidence in detail and recorded a finding of its own that the contentions raised by the appellant-accused in his memorandum of grounds are unsustainable. Presumably, the lower appellate Court thought it fit not to elaborately discuss the evidence in view of the endorsement made by the counsel for the appellant that he was not canvassing the correctness of the conviction. On this ground alone, I am not inclined to set aside the conviction and remand it for any rehearing of the appeal, as it would cause lot of inconvenience to both parties, apart from wasting the time of the court, However, in the interests of justice, though I am sitting in my revisional jurisdiction, I have gone through the evidence very carefully so as to see whether the conviction by the trial Court is well substantiated by unassailable materials, as the accused is entertaining a grievance against the lower appellate court.

P.W. 1, the Food Inspector, deposes that the accused refused to give him the sample of milk when demanded and took the can inside the tea shop of P.W. 2, and poured the same in a vessel. To a question as to why he has not taken the sample from the vessel, P.W. 1, has stated that the milk brought by the accused was poured by him in a vessel in which there was milk already stored. He further stated that he was unable to take the sample from the accused as the accused refused to give the sample to him. P.W. 2, who is no other than the tea shop owner, corroborates the evidence of P.W. 1, in all its material particulars. Though it is stated in the memorandum of grounds filed before the lower appellate court that there are contradictions and inconsistencies in the evidence of P.Ws. 1 and 2, learned counsel before me has not brought to my notice any inconsistency in the evidence of these two witnesses which would either materially affect the case of the prosecution or in any way vitiate the proceedings. After going through the evidence of P.Ws. 1 and 2, I am fully convinced that P.Ws. 1 and 2 are speaking only the truth and their evidence can be accepted and acted upon. The contention now raised by the learned counsel that the lower appellate court has not discussed the evidence fully, resulting in gross injustice, cannot be accepted.

Coming to the second contention, the learned counsel would vehemently urge that the ingredients of an offence under S.16(1)(b) of the Act have not been brought out by the prosecution, as there is no evidence that the accused prevented P.W. 1 from taking the sample and therefore, the conviction cannot be sustained.

To substantiate his contention, he would rely on the decision in Rewati Raman Sharma Vs. Jamshedpur Notified Area Committee, wherein the Patna High Court pointed out that S.10 of the Act empowers a Food Inspector to take the sample, but 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, that limply not co-operating by not handing over any article to the Food Inspector would not amount to preventing him from taking the sample, and 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 under S.16(1)(b).

S.10(1)(a)(ii) states that the Food Inspector shall have power to take samples of any article of food, from any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. In the present ease, there is acceptable evidence that the Food Inspector (P.W.1), demanded the sample of milk from the accused while the latter was in the course of conveying or delivering the milk to P.W. 2 and that the accused refused to so give the sample to him. It is only on this piece of evidence, the learned counsel would seek assistance from the above cited decision, stating that mere refusal to sell the article does not amount to prevention as contemplated under the provisions of the

Act. According to the learned counsel, there was no accompanying gesture indicating that the Food Inspector would not be allowed to take the sample. But, I am unable to accept this argument of the learned counsel, because the evidence is very clear and unambiguous that the accused not only refused to give the sample but also took the milk inside the tea shop and poured it in a vessel in which there was already milk stored, apparently, having been purchased from other milk vendor or vendors. This answer has been brought only in the course of the cross-examination.

The Food Inspector has also given an answer stating that he could not take the sample as the accused, without giving the sample to him, took the milk inside the shop. The question is whether the conduct of the accused in not only refusing to give the sample to P.W.1, but also taking the milk and pouring it inside a vessel and mixing the said milk with other milk, would not be tanta-amount to preventing the Food Inspector from taking the sample.

A similar case arose in Public Prosecutor Vs. Murugesan, . In that case, P.W. 1, the Maistry under the Sanitary Inspector (P.W.3), found the accused with two chombus of milk when the accused was going very near the hotel run by P.W.1, near the bus stand at Tirukoilur, and sent word to P.W. 3. P.W. 3 came there and asked the accused, to give a sample of the milk for being sent for analysis. But, the accused did not give the sample of the milk and was going inside the hotel, followed by P.Ws. 1 and 3. The accused handed over the milk in the chombu to the servant of the hotel, who poured it into the milk pan in which the milk was boiling. The accused, stating that he would give the sample of milk later when questioned, went away. On these facts, the learned trial Magistrate came to the conclusion that the said facts did not make out the "preventing" contemplated under Sec. 14(3) of Act III of 1918 (Madras Preventation of Food Adulteration Act 1918), on his reasoning 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 be sufficient to bring the act under the said sub-section and consequently acquitted the accused. The State preferred an appeal to this High Court. This Court made the following observation, disagreeing with the view taken by the trial Magistrate-

There can be no doubt that the view taken by the learned Second Class Magistrate is hopelessly wrong. On the facts alleged there can be no doubt that this accused, in the manner set out above and which need not be repeated, has effectively prevented the local Executive Officer from taking the sample and for this (sic) further overt act is necessity 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.

A Division Bench of the Allahabad High Court in Municipal Board, Sambhal Vs. Jhamman Lal and Another, referring to the decision of this court in Public Prosecutor Vs. Murugesan, reiterated the view that in cases of prevention, an overt act is not necessary.

The Gujarat High Court in Teja Moha Vs. Mangubhai Mehta and Another, agreeing with the view taken by this court in Public Prosecutor Vs.

Murugesan, pointed out that in order to constitute the act of prevention within the meaning of S.16(1)(b), it is sufficient if in a given case, an accused person with the intent to prevent a 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, that a positive action in the form of a physical obstruction, threat or assault is not necessary to constitute the act of prevention and that such a narrow and restricted meaning cannot be given to the word "prevent" when considered in the proper context in which it is used in S.16(1)(b) and having regard to the nature, design and object of the Act and the dictionary meaning of the word "prevent". On the facts of the said case, the court further held that where the accused throws away the milk and thereby renders it impossible for the Food Inspector to take the sample, it cannot be said, that the Food Inspector lacks the power to prosecute the accused under S. 16(1)(b) as he will not be able to comply with Ss. 10(7) and 11(1)(a) of the Act.

The Bombay High Court in Sheshrao Topaji Shep Vs. The State of Maharashtra and Another, , having regard to the facts there, found that where the accused threw away the milk with a view to destroy the very existence of the samples, an offence of preventing a Food Inspector from taking a sample is committed, notwithstanding the fact that there was no physical obstruction or threat to the Food Inspector.

I think it is not necessary for me to expatiate the entire case law on this point, as I am in respectful agreement with the view expressed by the Madras, Allahabad, Gujarat and Bombay High Courts, as indicated above. As viewed by all these courts, in my view, no overt act is necessary to constitute an act of "preventing" within the meaning of S. 16(1)(b) of the Act. Coming to the decision in Rewati Raman Sharma Vs. Jamshedpur Notified Area Committee, , which has been very much pressed into service by the learned counsel for the petitioner in support of his contention, I am of the view that the principles laid down in that decision cannot be of any help to the petitioner in this case, as there is overwhelming evidence in this case to show that the accused, by his conduct in pouring the milk in some vessel kept inside the tea shop, had thereby prevented the Food Inspector from taking the sample. In other words, the accused not only refused to sell the milk to the Food Inspector but also took a militant attitude in taking the can inside the shop and mixing the same with some other milk already stored in a vessel kept inside the shop and thereby practically prevented the Food Inspector from taking the sample, whereas in the abovecited Patna decision, the question was whether mere refusal to sell the (sic) would amount to "prevention" as contemplated under S.16(1)(b) of the Act.

For the foregoing discussions, I hold that the prosecution in the present case has well established that the accused prevented P.W.1 from taking the sample as contemplated under S.16(1)(b) of the Act.

Therefore, I see no reason to interfere with the conviction and sentence passed by the court below against the accused and accordingly this revision petition is dismissed.