JUDGMENT
N.S. Rao, J.
1. Jagannath Shah, petitioner, has preferred this application in revision against the judgment dated February 1, 1984 passed in Criminal Appeal No. 16 of 1983, by the Sessions Judge, Palamau, where by his conviction under Sections 16 (1) (b) and (c) of the Prevention of Food Adulteration Act, 1954 and sentence to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 1,000/-, or in default to undergo simple imprisonment for three mouths, as awarded by the Sub-divisional Judicial Magistrate, Daltongunj, by his order dated February 19, 1983 passed in C. G. Case No. 124 of 1982, were maintained.
2. Prosecution against the petitioner was launched on the basis of a complaint, alleging that when the Government Food Inspector cum-Sanitary Inspector, Bashiruddin P. W. 2 accompanied by vaccinator Moghal Ram P. W. 1 had visited the foodstuff’s shop of the petitioner in village Nawadih on February 6, 1982 for procuring a sample of pure Ghee, he (petitioner), refused to sell the same and thereby prevented the Food Inspector from taking sample.
3. The petitioner, in his examination in the trial court, had denied the prosecution allegation and stated that he was innocent. He had asserted that neither he runs a shop of foodstuffs nor had sold Ghee at any point of time. He had maintained that Food Inspector wanted him to become a witness against Laldeo Sao, after latter’s shop was raided, but as he had refused to become a witness in that case, therefore, his false implication. He had examined Imamuddin Ansari as his solitary defence witness. This D. W. has testified that the petitioner is a poor agriculturist and has never run a shop.
4. After hearing learned counsel for the petitioner and learned State counsel and also going through the records, I am of the considered view that as there is merit in this application, the same deserves acceptance.
5. The short point canvassed herein is as to whether mere refusal to sell articles amounts to prevention of contemplated by Section 16 (1) (b) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ‘the Act’), assuming that the petitioner had refused to sell sample of Ghee to the Government Food Inspector.
6. Section 16 (1) (b) contemplates that if any person prevents the Food Inspector from taking sample, as authorised by the Act, he shall be punished with imprisonment for a term which shall not be less than six months and with a fine which shall not be less than Rs. 1,000.
7. In R. R. Sharma v. Jamshedpur Notified Area Committee , it was held that there must be some action on the part of the person preventing any act, which would render the performance of that act impracticable or impossible and that mere refusal to sell the article unaccompanied by any gesture including that the Inspector would not be allowed to take the sample does not amount to prevention as contemplated by Section 16 (1) (b). In that case, there was no evidence that the seller had given any threat or showed any undesirable gesture. The Government Food Inspector had quietly wrote out seller’s refusal to sell articles when asked to do so. The seller had not done anything from which it could be inferred that he would not allow the Inspector to take the sample, if he wanted to do so. Those facts, alleged and proved, in the opinion of the Single Judge, did not amount to prevent the Food Inspector from taking the sample and as such, no offence under Section 16 (1) (b) held to be made out.
8. In R. R. Sah v. State 1973 B.L.J.R. 371 (DB), the seller had not only refused to sell the mustard oil to the Food Inspector but had also refused to sign the written notice by which the Inspector had made the demand to take the same on payment of the price. That was in spite of the fact that the Inspector had written out the notice, by which had intimated the purpose of his visit to the shop and informed the seller that he wanted to take the sample of the mustard oil on payment of proper price, but the seller had refused to accept the notice and even to sign the same in token of its acceptance. On those facts, it was held that the attitude of the seller indicated more than a mere refusal to supply the sample and in the eye of law he should be deemed to have prevented the Food Inspector from taking the sample.
9. The settled position of the law, therefore, appears to be that mere refusal to sell the sample would not amount to prevent the Food Inspector from taking the same. Apart from bare refusal, there has to be some overt act or any conduct on the part of the shop-keeper which should show that it had made a difficulty for the Food Inspector to take the sample. As has been held in R. R. Sah’s case (supra), if from the conduct or attitude of the shop-keeper it is manifest that he would not give the sample or allow the Food Inspector to take the sample, that will mean that the Inspector was prevented from taking the sample within the meaning of Section 16 (1) (b) of Act. Such being the legal position, let us examine, in this case, as to if the petitioner had prevented the Food Inspector from taking the sample merely by his refusal to do so.
10. Records speak, over which there is no dispute, that the Food Inspector had not even disclosed his identity to the petitioner, what to say of issuing any written notice notifying his intention to collect sample. No other document was prepared showing that the petitioner was asked by the Food Inspector to provide the sample to him. The Food Inspector has nowhere stated in his evidence as to how much sample he had demanded, and what price thereof was offered. The Food Inspector’s averment, as found in his deposition, that the petitioner had told him that he would not give the sample, and he (Inspector) was at liberty to whatever he liked, is stated only to be rejected. It is not even stated in the complaint that the petitioner had even stated so. Assuming, but not holding, that the petitioner had uttered those words, that would not mean any overt act on his part for preventing the Inspector to collect the sample. The Inspector, in the given circumstances of the case, was not observing the formalities required under the law, and if petitioner had for that reason refused to give sample, he cannot be held liable for contravening the provision of Section 16(1) (b) of the Act.
11. In Rajendra Prasad v. State of Haryana 1983 (20) A.C.C. 291 : 1983 B.B.C. 3. (S.C.) 109, the proved facts were that when the Food Inspector had visited the seller’s grocery shop for collecting sample of Dhania, he was found present. The Food Inspector had disclosed identity to the seller and demanded sample of Dhania for analysis and sought to serve written notice and tendered Rs. 4.80 as the price of 600 grams of Dhania asked for. The seller had thereupon gone from the shop, under pretext of passing urine without accepting notice or amount tendered and had not come back to the shop though the Food Inspector had waited there for about 11/2 hours. On those facts, it was held that the conduct of the seller in slipping a away from the shop on the Food Inspector disclosing his identity and asking for the sample, amounted to prevent the Food Inspector from taking sample and that no further overt act was necessary. However, the instant case stands altogether on different footing. As observed above, the evidence is lacking that the Food Inspector, in the case in hand, had ever disclosed his identity to the petitioner as also the purpose of visting the shop. Neither any written notice was served upon the petitioner nor any other document prepared in the behalf. The evidence is also not there to show as how much sample the Food Inspector had demanded from the petitioner and price he was prepared to hand over for the same. The instant case is of refusal simpliciter, and neither any other overt act alleged nor had the evidence been led to show that the conduct of the petitioner was such that he had prevented the Food Inspector from collecting the sample. Therefore, this petition has to be allowed.
12. For the reasons stated above, this revision petition is accepted. The conviction and sentence of the petitioner was hereby set aside. The fine, if realised, is ordered to be refunded to the petitioner. He is discharged from the liabilities of the bail bond.