GOPI NATH Vs. STATE

JUDGEMENT

(1.) THE present revision is directed against the orders passed by the Courts below refusing to drop or quash criminal proceedings pending against the petitioner in the Court of the learned Additional District Magistrate (Judicial) Sitapur. THE applicant's plea is that on the same set of facts on which the present prosecution is based he was prosecuted earlier and was convicted and, therefore, the second prosecution on the same set of facts is barred. In support of this plea the applicant has relied upon, clause (2) of Article 20 of the Constitution of India, section 26 of the General Clauses Act and sub-section (1) of section 403 of the Criminal Procedure Code. In order to appreciate the controversy it is necessary to narrate the history of the case.

(2.) THE applicant is a dealer in food grains and has his shop in Kesriganj within the circle of P. S. Laharpur District Sitapur. On 21-5 -1971 Sri Yogendra Bux Singh, Food Inspector, visited his shop and suspecting adulteration in gram wanted to take sample thereof. In order to take the sample he expressed desire to purchase 600 grames of gram. It is alleged that the applicant refused to sell gram to said Sri Singh and he pushed him out of the shop and thereafter put his lock on the shop,, thus preventing Sri Singh from taking the sample. A first information report; of the incident was lodged at P. S. Laharpur on 21-5-1971 at 6.55 P. M.. under section 353 of the Indian Penal Code. THE incident itself was said to have taken place at 6 P. M. THEreafter' on 22-5-1971 the Food Inspector sent; a charge-sheet to the Sub-Divisional Magistrate, Sitapur under section 16 (1) (b) read with section 10/1 of the Prevention of Food Adulteration Act. On the basis of the charge-sheet submitted by the Food Inspector, the Sub-Divisional Magistrate Sitapur ordered on 26-5 - 1971 for the case to be registered against the present applicant and also ordered summoning of the accused. After the applicant had put in appearance the learned Magistrate framed; charge against him under section 16 (1) (b) of the Prevention of Food Adulteration Act in following terms : -

(3.) IN order to prove the offence under the above provision all that is required to be proved is that the Food INspector was prevented from taking the sample. The prevention of the Food INspector from taking the sample may take place in various ways. It is not necessary that the element of assault must come in. IN case the preventing is accompanied with assault the accused person would be liable for assaulting also, but that would be not under the above provision but under some other provision. My attention was not drawn to any provision in the Prevention of Food Adulteration Act itself under which the offence of assaulting a public servant may be punishable. Such an offence is certainly punishable under section 353 of the INdian Penal Code which provides as follows : "Assault or use of criminal force to deter public servant from discharge of his duty-Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." From what has been stated hereinabove it will be seen that the offence for which the applicant was tried earlier was quite distinct from the offence for which he is being tried now. IN this view of the matter I am of the opinion that the present trial is not barred under clause (2) of Article 20 of the Constitution of INdia. The applicant's reliance upon Section 26 of the General Clauses Act, 1897 is equally misconceived. Section 26 provides as follows :-