H.C.P. Tripathi, J.
1. This is an appeal by leave under Section 417 (3) of the Code of Criminal Procedure against an order of acquittal recorded by a Magistrate, First Class, Agra, in a case under Section 7/16 of the Prevention of Food Adulteration Act (Act No. 37 of 1954).
2. On 30th of July, 1960, at about 7 a.m. respondent Raghunath Singh was found carrying cow's milk in a can for sale in Mohalla Rajendra Nagar of the Agra City. Sri V. N. Singh. Food Inspector of the Municipal Corporation obtained sample of milk on payment of its demanded price, divided the same in three parts, sealed and labelled each part in the presence of the respondent in accordance with the rules and sent one of them to the Public Analyst for his report. Again on 29-12-1960 the respondent was round carrying cow's milk for sale in the same locality and a sample was obtained by the aforesaid Food Inspector on payment of its price in accordance with the Rules a part of which was sent to the Public Analyst for report.
3. The report of the Public Analyst dated 9th of September, 1960, indicated that the sample of milk which was obtained on 30th of July, 1960, was deficient in non-fatty solids by about 32%. His report dated the 28th February, 1961, indicated that the sample of milk which was obtained on 26th of December, 1960, was deficient in fatty contents by about 54%. Accordingly the respondent was prosecuted for exposing for sale adulterated milk.
4. At the trial the respondent admitted that he was carrying cow's milk on the aforesaid dates in the city of Agra and that sample was obtained from him by the Food Inspector on payment of its price on both the dates. He, however, asserted that he was not carrying the milk for sale. His case was that on both these occasions milk was given to him by his father-in-law for carrying it to his sister. He produced Shyam Lal, his father-in-law, and Durjan Singh in his defence.
5. Shyam Lal stated that the respondent was his son-in-law and that on the aforesaid dates he had given him milk for being carried to his sister.
6. Durjan Singh testified to have received 3 to 4 seers of milk on the aforesaid dates which was carried by the respondent in his can.
7. Sri V. N. Singh, Food Inspector, Municipal Corporation, Agra, (P. W. 1) stated that the respondent was carrying milk in a can for the purpose of sale within the Municipal limits, that he had obtained its sample on two occasions which were on an analysis found to be adulterated and that the respondent never told him that he was carrying the milk to his sister's place in Mohalla Bagh Muzaffar Khan.
8. One Ralu Mal (P. W. 2) testified that sample of milk was taken by the Food Inspector from the respondent in his presence and the respondent was carrying the milk in an aluminium can for sale which was about 8 or 10 seers in quantity.
9. Both these witnesses, however, admitted that the respondent did not sell any milk to any customer in their presence.
10. The learned Magistrate was of opinion that the statements given by father-in-law and brother-in-law of the respondent cannot be relied upon as they were interested in him and could speak anything in his favour. He was, however, of the view that the prosecution has failed to prove that the respondent was carrying the milk for sale and therefore acquitted him.
11. I have heard the learned counsel for the parties. The view taken by the learned Magistrate is wholly erroneous and the order of acquittal of the respondent recorded by him must be set aside.
12. It is difficult to believe that on both these occasions when the sample was obtained by the Food Inspector on payment of price to the respondent, he was carrying milk not for sale but for his sister. The fact that milk which was about 8 or 10 seers in quantity and was being carried in a big can, as has been deposed to by the prosecution witnesses, on both these occasions, suggests that it was for sale within the municipal limits and the assertions made by the defence witnesses were wholly false 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.
13. Section 2(xiii) reads as under:
'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, 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.'
14. In this case it has come in evidence that on both these occasions the respondent accepted price of the sample obtained by that Food Inspector and thereby sold the milk within the meaning of the Act.
15. In the case of Municipal Board, Faizabad v. Lal Chand Suraj Mal, AIR 1964 All 199, it was inter alia held that although the milk was not stored for sale but since it was sold to the Food Inspector and as even sale for analysis comes within the definition of 'sale' under Section 2(xiii) of the Act the respondents had committed an offence. 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.
16. In the result this appeal is allowed.The order of acquittal recorded by the learnedMagistrate is set aside and the respondent is convicted under Section 7/16 of the Prevention ofFood Adulteration Act and is sentenced to paya fine of Rs. 100 only. In default of paymentof fine he will undergo rigorous imprisonmentfor one month. The fine should be paid withinone month.