HABIB KHAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THE applicant, who is a licenased milk dealer, has been found guilty under section 16 (1) (b) of the Prevention of Food Adulteration Act, 1954. He has preferred this revision challenging his conviction.

(2.) ON the date of the incident, the Food Inspector Puntambekar was standing near the gate of the Secretariat at Bhopal at about 11 A. M. The applicant, who supplies milk to the Canteen at the Secretariat, came there with a can of milk. The Food Inspector asked him to give a sample of the milk, but the applicant, without paying any heed to the request, went to the Canteen. The Food Inspector, along with witnesses, followed him and reached the Canteen which was situated at the fourth storey. At this stage, the applicant left the can of milk in the Canteen and bolted away. The Food Inspector attached the can in the presence of the witnesses and prepared a Panchnama. ON these facts, the applicant was prosecuted.

(3.) SHRI Rajendra Singh, learned counsel for the applicant, however, urged that a clear distinction has been made under the Prevention of Food Adulteration Act between the powers of the Food Inspector and the procedure prescribed for the exercise thereof. He urged that the applicant in leaving the milk can at the Canteen and bolting away, at best, made it impossible for the Food Inspector to follow the procedure prescribed under section 11, but it could not be said that the applicant prevented the Food Inspector from taking the sample of the milk. The milk was available to the Food Inspector which was actually seized by him and nothing prevented him from taking the sample in the presence of the witnesses. He urged that the expression "prevents" envisages an overt act on the part of a person so as to make it impossible for the Food Inspector to take the sample, or the taking of the sample should be made difficult by the person by putting some obstacles in the way of the Food Inspector. By way of illustrations, he urged that if the article of food is destroyed by the person or that it is mixed with another article so as to prevent the taking of the sample, or if some force is used or threat is administered, in those cases it could be said that the person prevented the Food Inspector from taking the sample. He further urged that the procedure prescribed under section 11 was for the protection and safety of the holder of the goods and, as such, if the person makes it impossible for the Food Inspector to follow the procedure, the only effect of it is to prevent the person from raising any ground of non-observance of the procedure in case he is tried. He urged that in following the procedure prescribed under section 11, the Food Inspector performs a duty cast on him under the statute and does not exercise the power of taking the sample conferred on him. In support, he relied on the decision of M. C. Desai, J. (as he then was) of the Allahabad High Court in Mussaddi Lai v. State, . A I B 1959 All. 753. He urged that if this case had been noted in the latter Allahabad decision, the decision might have been otherwise. He, therefore, urged that the decision of Tare J. which was based on the latter Allahabad decision, requires reconsideration.