Chinnappa Reddy, J.
1. This is an appeal by the State against the order of acquittal of the respondent of an offence under Section 16(1) read with as. 7, 2 (i) (a) and (1) of the Prevention of Food Adulteration Act and Rule 44 (b) of the Prevention of Food Adulteration Rules. The prosecution case is briefly as follows:
2. On 22-8-1966 at about 7 A. M. Pw. 1 the Food Inspector of Narasapur saw the accused carrying buffalo milk in a brass pot. He called Pw. 2, a dalayat in the Court of the District Munsif, and, in his presence, purchased sample of milk from the accused paying him the price for it. He then followed the procedure prescribed by Section 11 of the Prevention of Food Adulteration Act, divided the sample into three parts after adding preservative, put each part into a clean dry bottle, gave one bottle to the accused, sent one bottle to the Court and sent one bottle to the Public Analyst for analysis. The report of the Public Analyst showed that the sample contained 4,3 per cent of solids-not-fat as against the standard of 9 per cent solids-not-fat prescribed by the rules. The Analyst was of opinion that the sample contained 52 per cent of extraneous water. The prosecution examined three witnesses, PW 1 being the Food Inspector who took the sample, PW 2 the mediator and PW 3 the Food Inspector who succeeded PW 1. The accused denied the offence and stated that the milk belonged to his landlord and that the Food Inspector caught him when he was taking the milk to him. He examined his landlord as a defence witness. DW 1 stated that about a year prior to the date on which he gave evidence in Court, the accused came to his house and told him that while he was getting milk for DW 1 the Food Inspector caught him and that the Food Inspector wanted DW 1 to meet him DW 1 went to the Food Inspector and told him that the milk belonged to him and that the accused was bringing it for him. The Food Inspector, however, prepared a statement that the accused used to sell milk to DW 1 and wanted him to sign on it. As it was not a true statement he refused to sign. The learned Magistrate thought that it was the duty of the prosecution to establish that the accused was a vendor of milk and that on the day in question he was carrying the milk for the purpose of sale. He observed that there was not an iota of evidence to establish that the accused was a vendor of milk. On the other hand basing on a statement in the cross-examination of P.W. 2 that the accused told P.W. 1 that he was not carrying the milk for the purpose of sale and that the milk belonged to Somayajulu his master for whom he was carrying it, he held that at the earliest moment the accused came out with the version that the milk was not intended for sale. The learned Magistrate also relied upon the evidence of D.W. 1 as supporting the version of the accused. The learned Magistrate observed that though a sale to a Food Inspector for Analysis was a sale under Section 2(xiii) of the Act, such a sale was made under the compulsive authority of the Food Inspector and therefore it was open to the accused to establish that he was not a milk vendor and that the milk was not intended for sale. He found that in the present case the accused had established that the milk which he was carrying and from which a sample was taken was not intended for sale, but that it was intended for the personal use of D.W. 1 and that the accused was not a milk vendor. On those findings the learned Magistrate acquitted the accused.
3. The learned public prosecutor urges that the entire approach of the learned Magistrate to the question at issue was wrong and misconceived. He submits that once sale for analysis is established no further question arises except whether the sample was adulterated. The question whether the article of food which was sold to the Food Inspector was intended for sale or not is not entirely irrelevant. It is not necessary for the prosecution to establish that the article of food was intended for sale, nor is it permissible for the accused to attempt to prove that it was not intended for sale. There is great force in the submissions of the learned public prosecutor and I find that a plain reading of the provisions of the Act compel me to agree with those Sub-missions.
4. Section 16 read with Section 7 of the Prevention of Food Adulteration Act, in so far as they are relevant for the purposes of this case, render any person who sells any article of food which is adulterated liable for the prescribed punishment. It is, therefore, necessary to know when a person is considered to have sold an article of food under the provisions of the Act. 'Sale' is defined by Section 2(xiii) in the following manner:-
'Sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption use, or for analysis, and includes an agreement, for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.
It is apparent that this is a special definition of 'Sale' and it includes even an agreement of sale, an offer for sale, exposing for sale and possession for sale. It includes a sale for analysis even if such a sale is not the usual consensual Sale. It is necessary to refer here to the provisions of the Act by which a sale for analysis may be effected. Section 10(1) of the Act empowers the Food Inspector, among other things, to take samples of any article of food from (i) any person selling such article, (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee (iii) a consignee after delivery of any such article to him. He is also empowered under Section 10(2) to enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of food for analysis. Whenever he takes a sample either under Section 10(1) or under Section 10(2) he is obliged by Section 10(3) to pay to the person from whom the sample is taken its cost. Section 10(7) prescribes that whenever action is taken under Section 10(1) or Section 10(2) it is the duty of the Food Inspector to call one or more persons to be present at the time when such action is taken and take his or their signatures. Section 11 prescribes the procedure to be followed by Food Inspector after he takes samples. Section 16(1)(b) makes a person who prevents a Food Inspector from taking a sample as authorised by the Act liable to punishment. Section 16(1)(c) renders a person who prevents a Food Inspector from exercising any other power conferred on him by or under the Act liable to punishment.
5. When a Food Inspector takes a sample under Section 10(1) or Section 10(2) and offers its cost to the person from whom it is taken and such payment is accepted there is a sale for analysis. It is open to the person from whom a sample is taken to refuse to accept the price in which case there is no sale. While a Food Inspector cannot be prevented from taking a sample there is nothing in the Act which compels a person from whom the sample is taken to accept the price which the Food Inspector offers for it. The refusal to accept the payment offered by the Food Inspector cannot amount either to preventing a Food Inspector from taking a sample or to preventing a Food Inspector from exercising any power conferred on him by or under the Act. The person in whose possession the article of food is, may allow the Food Inspector to take the sample and yet refuse to accept payment for it. In such a case, as I said, there is no sale for analysis. Where there is no sale for analysis the Food Inspector, if he sends the sample for analysis and if it is found to be adulterated and if he decides to launch a prosecution, may have to establish that even if there is no sale for analysis there is a sale within the meaning the other limbs of Section 2(xiii) of the Act. This he can establish by proving that the article of food was offered for sale or exposed for sale or that the person from whom he took the sample was in possession of the article for sale. In such an event it may be necessary for the Food Inspector to prove that the article of food was intended to be sold. But where the price offered by the Food Inspector is accepted by the person from whom the sample is taken and there is thus a sale for analysis it is clearly unnecessary for the prosecutor to establish that the article of food which in fact was sold was intended for sale. In a case where there is a sale for analysis, to insist that the prosecution must establish that the article of food was intended for sale is to insist on proof of an additional requirement not contemplated by the Act. Conversely to permit the person who has sold a sample for analysis to establish that the article of food was not intended for sale is to introduce an element not contemplated by the Act.
6. In Re Bellemkonda Kankayya AIR 1942 Mad. 609, Horwill, J. held that the parting with a commodity when it was demanded by the Sanitary Inspector in exercise of his powers under Section 14 of the Madras Prevention of Food Adulteration Act would not amount to a sale within the meaning of Section 5 of that Act. In Food Inspector, Calicut v. Parameswara Chettiar 1962 (1) Cri. L. J. 152 (Ker.), Raman Nayar, J. held:-
As sale is a voluntary transaction and a seizure or compulsory acquisition in exercise of statutory power is not a sale within the ordinary sense of that word. Nor does the definition of 'sale' in Section 2(xiii) as including a sale of food for analysis make it one, for, the first requisite even under the definition is that there must be a sale... In my view when a Food Inspector obtains a sample under Section 10 of the Act there is no sale.
The view of Horwill, J. and Raman Kayar, J. was not accepted by their Lordships of Supreme Court and both these judgments were overruled in Mangal Das v. Maharashtra State : 1966CriLJ106 . Their Lordships rejected the argument advanced in that case that where a person is required by the Food Inspector to sell to him a sample of the commodity there is an element of compulsion and therefore it cannot be regarded as a sale. This result according to them followed from the special definition of sale in Section 2(xiii) of the Act which specifically included within its ambit a sale for analysis.
7. The rejection by their Lordships of the Supreme Court of the proposition that there must be a consensus before it can be said that there is a sale even for analysis clearly implies that once the taking of a sample by the Food Inspector and the payment of price for it are established it is not open to the Court to go behind the transaction and discover whether the article of food was intended for sale. Otherwise the door would be wide open for a defence being put forward in every case where a sample is taken and price paid for it that the article of food was not intended for sale, rendering the enforcement of the prevention of Food Adulteration Act impossible and the creation of absolute offences under act meaningless.
8. In Municipal Board, Faizabad v. Lal Chand : AIR1964All199 , the accused who owned a tea shop had stored milk which was intended to be used in the preparation of tea but which was not intended to be sold. The Food Inspector purchased a sample of milk and on analysis it was found to be adulterated. It was held by a Division Bench of the Allahabad High Court that the accused could not be convicted for storing adulterated milk because the milk which was stored was not intended for sale. He could however be convicted for selling adulterated milk to the Food Inspector since sale of adulterated milk for analysis was itself an offence. They observed;-
'No doubt the respondent could not be convicted for storing the milk at their shop which was of the quality or purity below the prescribed standard, as the milk was not stored for sale but was stored for mixing it with tea which was sold at their shop but they did sell milk to the Food Inspector and the selling of adulterated milk was itself an offence. Even sale for analysis comes within the definition of 'Sale' under Section 2(xiii) of the Act. Under Section 7 of the Act, therefore, even this sale of adulterated milk was an offence even though it might have been made for the purpose of analysis.
Learned Counsel for the respondents drew our attention to the provisions of Section 10(3) and also Section 16(1)(b) of the Act by pointing out that the respondents could not refuse to sell under the law and that if they could not refuse to sell which they were compelled to do they could not be said to have sold the milk voluntarily, or sold it at all in the eye of law.
Now Sub-section (3) of Section 10 of the Act provides that where any sample is taken under clause (a) of Sub-section (1) or Sub-section (2) its cost 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 and clause (b) of Sub-section (1) of Section 16 provides that if any person prevents a Food Inspector from taking a sample as authorised by this Act he shall be guilty of an offence under the Act. It was not obligatory upon the respondents to sell the milk to the Food Inspector. When the Food Inspector came to take the sample they could say that he could very well take the sample but they were not going to sell it. They did not do any such thing. The receipt Ex. Ka-3 indicates that they did sell it for sample. No doubt it was the duty of the Food Inspector as provided under Section 10(3) to pay the price but if the respondents had refused to take the money the Food Inspector could not have compelled them to take it. If they had done so, they would not have committed any offence under Section 16(1)(b) of the Act which provides that the preventing of a Food Inspector from exercising any power conferred on him by the Act is an offence. By not taking the price, they were not preventing the Food Inspector from exercising his power. They could allow the sample to be taken away by the Food Inspector telling him that he could take it if he wanted to do so but as they were not selling the milk they would not accept its price for they were storing milk only for mixing it with tea which alone they were selling at their shop.
9. In Nagar Swasth Adhikari, Municipal Corporation, Agra v. Raghnath Singh : AIR1966All231 where a defence was put forward that the milk from which a sample was taken by the Food Inspector and for which the price was paid, was not intended for sale but was being taken by the accused to his father-in-law's house for the latter's consumption, a learned single Judge of the Allahabad High Court observed:
In the case of a hawker who carries articles of food for sale by hawking it is not possible in every case for the prosecution to prove its actual sale to a customer. Realising this practical difficulty the Legislature has provided that sale of any article of food even for analysis will be a sale within the meaning of the Act. In the instant case if the milk which was being carried by the respondent was not for sale he could have refused to accept the price offered by the Food Inspector for the sample.
10. I respectfully agree with the observations of the learned Judges in : AIR1964All199 (as above) and : AIR1966All231 (as above).
11. Sri. M.B. Ramasarma, learned Counsel for the accused relied upon Public Prosecutor v. Kandaswamy Reddiar : AIR1959Mad333 , in Re Rathamani AIR 1965 Mad. 146 and upon the observations of my learned brother Obul Reddi, J. In Public Prosecutor v. Pit-chaiah (1967) 2 Andh. W. Rule 424.
12. In the first of the cases Soma-sundaram, J. while holding that there was sale to the Food Inspector nonetheless thought that the accused could not be convicted as the milk was not intended for sale. He said:
This is an appeal against the acquittal of the respondent who was charged for an offence under the Food Adulteration Act, that is for selling adulterated milk. In such a case the first essential requisite to be established is that the milk from which the Sanitary Inspector gets a small quantity from the vendor as sample is intended for sale.
But in acquitting the accused the learned District Magistrate held that there was no sale as such to P.W. 1. Here the learned District Magistrate is not correct. What was given by the accused to P.W. 1 is undoubtedly sale but what was teally to be decided was whether the milk which the accused was taking was intended for sale. On that question there is room for doubt and, therefore, the acquittal of the accused can be justified on that ground.
13. The learned Judge did not refer to any of the provisions of the statute and did not state any reason for the qualification introduced by him. With great respect, I do not agree with Somasundaram J.
14. In the second case Anantanarayanan J.. followed the decision of Raman Nayar J.. in 1962 (1) Cri. L. J. 152 (Ker.) (as above) which has since been overruled by the Supreme Court. The very observations of Raman Nayar J., on which. Ananthanarayanan J. placed reliance were disapproved by the Supreme Court.
15. In 1967-1 Andh. W. Rule 424 (as-above) my learned brother Obul Reddi, J., was pressed with an argument that the accused from whom a sample of curd was purchased by the Food Inspector was not carrying the curd intending it for sale at the time when the sample was taken. The decision of Somasundaram J., in : AIR1959Mad333 (as above) was cited before my learned brother as supporting the argument. My learned brother appears to have thought that in order to-attract the decision of Somasundaram J. the accused would have to establish by reliable evidence that he was not a vendor of the article of food and that the article of food was not intended for sale. It was in that context my learned brother said:
Whether a particular article of food is intended for sale or not is a question of fact in each case. If the defence of the accused person is that if an article of food for instance 'curd' in this case was not intended for sale, but was intended for domestic consumption and that he had no alternative but to submit to the authority of the Food Inspector, the onus is upon him to establish that he is not a vendor and that the article of food was prepared for his or his relations' domestic consumption. If by reliable evidence, the respondent fails to establish that the article of food was not for sale but meant for domestic consumption then he will be selling an article of food, if it is found adulterated, which is prohibited under Section 7 of the Act.
16. My learned brother expressed no-approval of the view of Somasundaram J. but thought that the evidence in the case before him did not attract the application of the judgment of Somasundaram. J. I have no doubt that my learned brother did not intend to lay down that even in cases of sales for analysis it must be established that the article of food was intended to be sold. That he did not intend to lay down any such propositions clear from the fact that he extracted the observations (Extracted by me earlier) of the Allahabad High Court in : AIR1966All231 (as above) with approval and wound up his discussion by stating:
In view of the authoritative pronouncement of the Supreme Court, the doubt, if any, whether the sale for analysis would come within the ambit of sale has been dispelled,
17. In the light of the foregoing discussion, I am of the view that the question whether an article of food was intended for sale or not would be irrelevant in cases of actual sales whether such sales be for human consumption or use, or for analysis. The question would be relevant only in cases where the act of the accused is sought to be treated as a 'Sale' by reason of the other limbs of the definition of 'Sale' in Section 2(xiii), that is, where what is alleged is 'an agreement of sale, an offer for sale, the exposing for sale or having in possession for sale of any such article', including, 'an attempt to sell any such article'.
18. In the present case, there was undoubtedly a sale to the Food Inspector and that concludes the matter. I find the respondent guilty of an offence under Section 16(1) read with Section 7, Section 2(i)(a) and (1) of the Prevention of Food Adulteration Act and sentence him to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for a period of three months I have not imposed a sentence of imprisonment as the accused is a first offender and appears to be petty milk vendor.