Obul Reddi, J.
1. The State has preferred this appeal against the acquittal of the respondent a hotel Keeper of Bapatla of an offence under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act by the Judicial First Class Magistrate, Bapatla in C.C. 11/65.
2. The case against the respondent a hotel keeper was that on 14.5.64 he sold the Food Inspector P. W. S sample ghee of 7 palams for Re. 1-50 Np. and that on analysis by the Public Analyst it was found to be adulterated. On the basis of the report Ex. P-1 of the Analyst, the respondent was prosecuted before the lower Court. The Magistrate acquitted the accused on the ground that the respondent is not a dealer in ghee and the ghee sold to the Food Inspector was not intended to be served along with the meals and there is no proof of its having been used in the preparation of articles of food and hence does not constitute an offence under Section 7 of the Act, although he was in possession of adulterated ghee. He fortified his conclusions by relying upon a decision fin In Re V. Govinda Rao : AIR1960AP366 . Mr. Jayachandra Reddi, the learned Additional Public Prosecutor has argued on behalf of the appellant that the Magistrate obviously ignored the fact that sale of an article of food for analysis is also a sale within the meaning of Section 2(xiii) of the Act and that it is not necessary for the prosecution to establish further that the article purchased was intended for use in the preparation of articles of food or it was served as such along with the dishes. Mr. Sitaramayya the learned Counsel appearing for the respondent contended that the acquittal of the respondent by the Magistrate was based on a ruling given by this Court and unless the prosecution can show that the respondent was a vendor in ghee or that he had used this article in the preparation of the dishes he cannot be made liable under Section 16 read with Section 7 of the Act.
3. It is therefore necessary to see whether sale of sample ghee by a hotel keeper is a sale within the meaning of Section 2(xiii) and whether it is necessary for the prosecution to further establish that the article of food was used by the hotel keeper in the preparation of any of that dishes or was served along with any of the dishes prepared by him.
4. The facts established in this case are these: P.W. 5 went to the hotel of the respondent at about 7-30 A.M. on 14.5.64, served a notice Ex. P-3 upon him and obtained a sample of 7 palams of ghee for Re. 1-50 Np. Ex. P-2 is the receipt passed by the respondent, hotel keeper for the sale of the sample of 7 palams of ghee. This receipt is attested by three witnesses. Therefore, there is no doubt that P.W. 5 purchased the sample from the accused and paid its value. He then divided the sample into three parts, put them into three separate bottles, packed and sealed them, sent one to the Analyst, gave one to the respondent and retained the third with him. The sample sent to the Analyst was found to be adulterated as per the report Ex. P-1 by the Public Analyst. In his opinion the sample contained 9 per cent of fat not derived from milk or cream as calculated from the Reichert value and hence adulterated. Mr. Sitaramayya points out that the Food Inspector did not purchase the sample ghee from the respondent but he only asked the hotel keeper to give him 7 palams of ghee for sample & paid him Re. 1-50 nP. and therefore this transaction cannot be construed as a sale. It may be relevant to notice the definition of sale.
Section 2(xiii) '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 or 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.
A Division Bench of this Court in Public Prosecutor v. Nagabhushanam : AIR1965AP118 , dealing with the scope of Sections 16(1)(a), 7(1) and 2(xiii) observed:
Where a person sells edible oil to the Food Inspector for analysis, his act constitutes a 'sale' within the meaning of Section 2(xiii) of the Act. By its very definition, a sale is not any the less a sale because it is for analysis; it need not necessarily be for human consumption or for human use. The purchase of a sample by a Food Inspector is not for his -personal consumption or use but is only for the purpose of detecting if the article of food is adulterated. No proof that the sample of oil to the Food Inspector was sold as an article of food, is necessary....
By the use of the word 'ordinarily' in Clause (v)(a) of Section 2 of the Act, the legislature intended to lay down that when an article of substance is used as an ingredient in the preparation of food, even by some inhabitants of this country, usually and not as something exceptional or out of the ordinary, it would come within the definition of 'food'.
The Supreme Court in Mangaldas Raghavji v. State of Maharashtra : 1966CriLJ106 , has set at rest the doubts any regarding the meaning of sale in Section 2(xiii) of the Act.
'The Act gives a special definition of sale in Section 2(xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as a sale even if the transaction contains an element of compulsion'. Therefore, having regard to the pronouncement of the Supreme Court and earlier by a Division Bench of this Court, there is no use contending that sale for analysis is not a sale within the meaning of Section 2(xiii) or that it has not been established that it is not used as an ingredient in the preparation of any dishes of food. All that the prosecution has to establish in a case of this kind is whether the adulterated article of food was exposed for sale and if that is established and it is found on analysis that it was an adulterated article of food, then the penal provisions would be attracted. The decision in : AIR1960AP366 relied upon by the lower Court and also by the learned Counsel for the respondent will not help the respondent in view of the decision of the Division Bench of this Court and the decision of the Supreme Court referred to supra. Therefore, there is no substance in the argument that mere possession of adulterated ghee lay a person and the sale of such adulterated ghee to a Food Inspector will not constitute 'sale' within the meaning of Section 2(xiii).
5. The other argument of Mr. Sitaramayya is that he was keeping the ghee in the hotel for the use in the preparation of 'dosais' and therefore he cannot be made liable unless he sold the ghee as such. It is also his case that he was Only storing the ghee in the shop for his own use for the preparation of dishes like 'disai' and other such items and therefore a 'sale' to a Food Inspector of the ghee stored by him for his private use will not constitute a, 'sale'. The language of Section 2(xiii) will not permit any such construction being placed upon the definition of sale. The decision of the Supreme Court as already pointed out by me is a complete answer to the argument advanced by the learned Counsel for the respondent. Therefore the Magistrate was in error in acquitting the accused and the acquittal is accordingly set aside. I therefore convict the accused under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act and sentence him to pay a fine of Rs. 50, in default one week's simple imprisonment. Time for payment one week from the date of the receipt of this judgment in the lower Court.