STATE Vs. BADRI PRASAD, PROP. HARDEO SAHAI MANGATRAM

JUDGEMENT

(1.) This appeal is directed against an order of acquittal passed by the learned Sessions Judge of Kumaun at Naini Tal by which he acquitted Badri Prasad of the offence under Sec. 16 (1) (b) of the Prevention of Food Adulteration Act, 1954.

(2.) The facts of the case may be briefly stated as follows: According to the prosecution, on the 30th Oct., 1956, Sri Ram Asrey Katiyar, Food Inspector, Haldwani, went to the shop of Badri Prasad respondent and asked him to sell six chhataks of mustard oil to him by way of sample. The respondent who was a whole-sale licensee pleaded that he could not sell any quantity below one tin of mustard oil to the Food Inspector in view of the terms of the license Ext. D-l. The respondent, therefore, asked the Food Inspector to take the entire tin of oil as a sample. The Food Inspector, however, refused to do so, and instead, made a complaint against the respondent under Sec. 16(1) (b) of the Prevention of Food Adulteration Act, 1954. The facts of the case are not disputed. The only questions which have to be determined are whether the respondent Badri Prasad was under a legal obligation to sell six chhataks of mustard oil to the Food Inspector for purposes of sample and whether his refusal to do so amounted to an offence under Sec. 16 of the Act.

(3.) Sec. 10 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954, provides that a Food Inspector shall have power to take sample of any article of food from any person selling such article. Sub-Sec. (3) of Sec. 10 says that where any sample is taken under clause (a) of sub-sec. (1), its costs calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken. It is thus clear that the Food Inspector, when he takes an article of Food from a shopkeeper by way of sample, is really purchasing that article and asking the dealer to sell it to him. It was conceded by the learned State counsel that it did amount to a sale as provided by Sec. 10 of the Act. The next question, therefore, to be considered is whether the respondent was bound to sell six chhataks of mustard oil to the Food Inspector even though that would have amounted to a breach of the license granted to him and would have made him punishable under Sec. 7 (iii) of the Act. Sec. 7 (iii) reads thus: