T.S. Misra, J.
1. This revision arises in the following circumstances Sri K. R. Gangwar. Food Inspector, Municipal Board. Bareilly, made a complaint under Section 7/16 of the Prevention of Food Adulteration Act against Devi Saran. hereinafter called the applicant, alleging that on 31st March. 1969 at about 5.15 P. M. the applicant was found selling and having in his possession milk for sale. The Food Inspector purchased a Sample of the same on payment of price and after complying with the formalities he sent one bottle of the sample to the Public Analyst. Govt. of U. P. who reported that the sample was adulterated. Having received this report the Inspector filed a complaint. The applicant pleaded not guilty and contended that he did not own the shop where the milk was vended and that the sample was not taken from him. He alleged that no notice was given and no price was paid to him toy the Inspector. In support of its case the prosecution examined the Food Inspector and one Manna Lal. The applicant also examined two witnesses. Believing the story of the prosecution and rejecting the defence story the learned Magistrate convicted and sentenced the applicant. Thereupon the applicant preferred an appeal before the appellate court below. Only one point was urgted there via that the present applicant did not own nor did he sell the sample to the Food Inspector. This contention did not find favour with the appellate court below. It affirmed that finding of the learned Magistrate that the sample of the milk was purchased by the Food Inspector from the accused which had been found to be adulterated. The appellate Court below, however reduced the sentence of six months rigorous imprisonment to the rising of the court and maintained the fine of Rs. 500/-.
2. In revision it was urged on behalf of the applicant that on the facts found it was not established that the applicant had sold the milk to the Food Inspector inasmuch as the price of the milk tendered by the Food Inspector was refused by the applicant. It was urged that since the price of the milk was not accepted by the applicant. no transaction of sale took place. Hence the applicant committed no offence. The learned Counsel in support of his contention referred me to the (provisions of Sub-section (3) of Section 10 of the Prevention of Food. Adulteration Act. hereinafter referred to as the Act. It reads as follows
Where any sample is taken under Clause (la) 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.
It was submitted that the (provisions of Sub-section (3) were mandatory and non-complaince thereof would not render the transaction a sale as defined in the Act In order to appreciate this argument it would be necessary to refer to the definition of the term 'sale' given in the Act. The: definition of this term is given in Section 2(xiii) which reads:
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.' The Act thus defines sale very widely as-covering sale for analysis also. Sale for sample per se would therefore. mean a sale within the meaning of Section 2(xiii) of the Act. (See Mangaldas Raghavji v. State of Maharasthra : 1966CriLJ106 and Babulal Hargovind Das v. State of Gujarat : 1971CriLJ1075 .
3. The contention, however, was that since Sub-section (3) of Section 10 requires payment of the price by the Food Inspector for the sample taken by him. non-acceptance of the price by the-accused would not render the transaction a sale. This contention, in my view, has no substance. What is required by subsection (3) of Section 10 of the Act is that the Food Inspector shall pay the cost of the sample calculated at the rate at which the article is usually sold to the public, to the person from whom the sample is taken. In other words. on obtaining the sample the Food Inspector must tender the cost of the sample to the person from whom the sample is obtained. Where a person is required to make payment to another person he must tender payment to the latter and if it is established that he actually did so it would be full compliance with the requirement irrespective of the fact that the latter refused to accept the payment. Hence. if the cost of the sample is tendered to the accused and he declines to accept it. it cannot be said that Sub-section (3) has not been complied with, The provisions of Sub-section (3) are not restrictive of the powers of the Food Inspector to take a sample. Hence. where sample is taken from the stock in possession of the accused. it would not cease to be a sample merely on the ground that the accused declined to accept the cost thereof. If the Food Inspector tenders the price, he performs his part of making payment of the price and that, in my view would be a full compliance with the provisions of Sub-section (3) of Section 10 of the Act. In the instant lease. it was found by both the courts below that the sample of the milk was purchased by the Food Inspector from the accused. The Food Inspector tendered the cost of the sample but the accused declined to accept the same. The transaction, therefore, amounted to a sale within the meaning of Section 2(xiii) of the Act.
4. It was next urged that the Food Inspector did not produce before the Court the third part of the sample during the trial and. therefore, the trial was vitiated. The learned Magistrate in his impugned order had observed that there was nothing on record to show that the Food Inspector was ordered to produce the sealed bottle in court. The learned Counsel for the applicant could not show from the record that any application was moved on behalf of the accused for a direction to the Food Inspector to produce before the court the third part of the sample. nor could he point out that any order was passed directing the Food Inspector to produce the third part of the sample. It is true that the Food Inspector must produce the third part of the sample when so ordered by the Magistrate, or on the request of the accused. but in the absence of any such order by the Magistrate, or request of the accused, it Was not necessary for the Food Inspector to produce the third part of the sample at the time of making the complaint or during the trial, (See Nagar Swasthaya Adhikari. Agra v. Ram Phal 1969 All LJ 957).
5. No other point was urged. In the reault. the revision fails and is dismissed. The interim order dated 9th August, 1971 staying realisation of fine is vacated.