V.D. Misra, J.
(1) This is an appeal against the acquittal of the respondent of a charge under section 7/16 of the Prevention of Food Adulteration Act by Additional Sessions Judge, Delhi.
(2) The prosecution case in brief is that on April 11, 1967. Food Inspector H. R. Sood stopped the respondent's truck bearing No. Dlg 7777 carrying cans of milk for sale near S. S. Railway Crossing, G.T. Road, Shahdara. Whereas some cans had indication of milk written on them, others were without indication. The Food Inspector duly took a sample of milk from the can which was without indication from the respondent. When the Food Inspector offered the price, the respondent refused to accept it. Exhibit P.A. is the receipt which was prepared by the Food Inspector. The respondent wrote on this receipt that Milk is not for sale. Sale only after processing in our factory at Jawahar Nagar, Delhi.' Exhibit P. B. is the notice given to the respondent that milk without indication had been taken for analysis for the Public Analyst. The respondent wrote on this notice that 'the van of milk was stopped. Sample was taken at 4.25. Milk had become unfit. This milk was not for sale. It was to be sold at the shop only after it had passed the test. I have not accepted its price.' Exhibit P. C. is the inventory showing that milk without indication had been taken for analysis. On it the respondent made an endorsement in English which reads : 'Milk is not for sale. Sale only after processing in our factory at Delhi.' He also made the endorsement in Urdu thus : 'Price of this milk has not been accepted. The can, from which the sample was taken, did not contain any writing to show the type of milk.' Exhibit P. D. is the requisite memorandum to Public Analyst. The milk was analysed on April 13, 1967. and was found to contain 3.8% fat and 8 34% of non-fatty solids. In the opinion of the Public Analyst the milk was adulterated' due to 0.66 deficiency in non-fatty solids per cent and 2.2 deficiency in fat per cent which are equivalent to 7.3 percentage deficiency in non-fatty solids (% added water) and 2-1.3 percentage deficiency in fat according to Buffalo milk standard.' Exhibit P. E. is the report of the Public Analyst.
(3) The defense of the respondent as disclosed in his statement under section 342, Criminal Procedure Code was that he was not present in the truck in question when it was stopped; and that the milk had to be tested and processed before it was to be sold. However, no evidence was produced in defense.
(4) The trial magistrate found the accused guilty and convicted him under section 7/16 of the Prevention of Food Adulteration Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 10,000.00 or in default of payment of fine to undergo rigorous imprisonment for a further period of three months. On appeal the learned Additional Sessions Judge relying on a judgment of Andhra Pradesh High Court reported in Public Prosecutor v. Matha Satyam. 1970 C L J 393, held that there was no sale of milk in question to the Food Inspector since the respondent had not accepted its price and acquitted him.
(5) A Full Bench of this Court in Madan Lal V. State, 1972 F. A. C. 481, has held
'IFa person, who is a dealer in an article of food as such, refuses to sell it to a Food Inspector, the latter has the power under section 10(1) of the Act to take a sample of the article of food for (he purposes of analysis and the dealer cannot prevent him from taking such a sample. His unwillingness to accept the price of the sample will thus be wholly immaterial. He would still be guity of an offence under the Act. It does not matter whether the person from whom the sample is taken accepts such payment or not.'
It thus cannot be said that the respondent did not sell the milk to the Food Inspector because he did not accept, its price.
(6) The respondent contends that the milk did not belong to him as he had not taken its delivery. Food Inspector H. R. Sood, who appeared as P. W. 1, deposed that the milk was being transported on the truck belonging to the respondent. No cross examination was directed against this statement. On the other hand, it was suggested in cross-examination that the Food Inspector did not follow the respondent's truck to find out whether he was taking the milk for being processed or for being sold. The endorsements made by the respondent on Exhibits P. A, P. E. and P.C. show that the respondent never took the stand that the milk did not belong to him. The only stand taken by the respondent was that the milk was not for sale because it was to be sold only after processing in the respondent's factory at Jawahar Nagar. If the milk did not belong to the respondent then I see no reasons why he would not have stated so expressly in the various detailed endorsements made by him at the spot. Even in his statement under section 342, Criminal Procedure Code, the respondent did not state that milk did not belong to him since he had not taken the delivery. This contention has thereforee to be rejected.
(7) The next contention of the respondent is that be was not present in the truck when it was stopped but was summoned from his shop and that since the milk was not to be sold by him unless it was tested and processed in his factory, it cannot be said that the milk was for sale at the time when sample was taken. In the alternative, it is contended that the can from which sample was taken contained cow's milk and that the Food Inspector had been told about it, and so the standard of cow's milk has to be applied.
(8) Food Inspector H. R. Sood. P. w. 1 was cross-examined in detail. It was not suggested to him that the respondent was not Present in the truck when it was stopped by the Food Inspector and that the respondent was summoneed from his shop. P. W. 3, H.K. Bhanot is another Food Inspetcor who was accompanying P. W.I . When questioned about the presence of the respondent in the truck when it was stopped, this witness showed his ignorance. Again, it was not suggested to him that the respondent was got summoned. It is true that the sample was taken after about an hour of stopping the truck, but it was due to the fact that the Food Inspectors had stopped various milk vendors and were busy taking samples from them. The delay in taking the sample, which has been reasonably explained, does not by itself mean that the respondent was summoned from his shop. The only witness who supports the respondent's stand is Sohan Lal, P. W. 4. He is a dairy owner like the respondent and also lives at Jawahar Nagar where the respondent lives. He slated that he knew the respondent and that the sample was taken in his presence by the Food Inspector. In cross-examination he stated that the respondent was not present in the truck and was summoned by telephone. It may be noticed that whereas the cross- examination of Public Witness . 1. and Public Witness . 2. was over by August 24, 1967. Public Witness .4. was examined on December 18, 1967. No importance can be attached to this cross-examination of P. W. 4. since the Food Inspector: Public Witness .I, who stopped the truck, was not questioned. There is nothing to show that when the truck was stopped by P. W. 1, P. W. 4. was present with him. In my opinion the respondent's contention that he was not present at the spot and was summoned from his shop is an afterthought.
(9) Except the bare statement of the respondent and the endorsements made by him on the documents prepared by the Food Inspector, P. W. 1, at the spot, there is no evidence to show that the milk had to be processed before it was to be sold. It was for the respondent to show that, according to the usual practice followed by him, something had to be done to the milk before it was to be offered for sale. In order to prove his bona-fides, it was necessary for the respondent to show what he meant by processing, which in ordinary parlance meant 'treating' and to show that he had the necessary implements for processing the milk. On the other hand. Food Inspector P, 1. had asserted in his cross-examination that the trucks carrying milk distribute the milk to their customers falling on their way to destination. It is also in evidence that there were cans of milk in this truck which had labels. indicating cow's milk and separated milk. Some cans did not carry any indication and from one of them the sample was taken by the Food Inspector. In case the milk was sought to be processed, I see no necessity of pasting labels on the cans to indicate the kind of milk, because the indication would have become necessary after the milk had been processed. The cross-examination of Public Witness . 3. H.K. Bhanot shows that the respondent was willing to give samples of milk from all cans, including the can from which the sample was taken and it was only after the sample had been given by the respondent that he stated that milk from this can had to be sold after being processed. In my opinion the milk was for sale when the sample was taken. Item No. A. 11,01.03 (before its amendment in July, 1968) of Appendix B to the Prevention of Food Adulteration Rules, 1955, required that where milk 'is sold or offered for sale'' without any indication as to whether it is derived from cow, buffalo, goat or sheep, the standard prescribed for buffalo milk shall apply. Thus when the respondent gave the sample for analysis it amounted to a sale to the Food Inspector.
(10) Bawa Gurcharan Singh, learned counsel for the respondent relies on two Single Bench decisions of this Court reported in Din Dayal v. The State, 1972 F. A. C. 636. and Municipal Corporation of Delhi v. Nand Kisore, 1972 F. A. C. 561, in support of his contention that the giving of sample by the respondent does not amount to a sale. In Din Daval's case (supra) the Food Inspector had gone to a godown where cumin seeds (Zeera Sated) were stored. It was found that some men were actually engaged in cleaning the seeds in the godown. There was a board outside the godown stating that the stock of cumin seeds in that godown was not meant for sale. In these circumstancas it was held that 'The mere storage of adulterated food is not an offence under the Act; it is only storage for sale of adulterated food which is an offence..' This authority does not support the conten- corporation of the respondent that the prosecution must prove that articles of food, which are stored in godown or are on way to a shop where these are usually sold, were meant for sale. If a shopkeeper stores in his godown articles of food which are usually sold in his shop, or is carrying articles of food to his shop, it is not necessary for the prosecution to prove that these are meant for sale. In such circumstances it will be proper to assume that the storage or conveyance of articles of food is for the purposes of sale. This presumption will not be affected by the shopkeeper hanging a board on his godown showing that articles of food stored in the godown are not meant for sale or informing the Food Inspector that these are not meant for sale. In the case of Nand Kishore (supra), it was found that edible til oil was being prepared by the manufacturer and that the process of manufacture was not yet complete when the Food Inspector took the sample of til oil. In these circumstances it was held that it was only when the process of manufacture was complete that it could be said that an article of food had been manufactured for sale. The respondent cannot derive any help from that judgment since, as already discussed, there is no evidence to show that the milk had to be treated by some method before it was to be sold.
(11) It is true that sample had 3.8 per cent of fat, whereas the standard for cow's milk requires the minimum of 3.5 per cent, and that the only deficiency in the sample, if judged by the standard laid down for cow's milk, is in milk solids other than milk fat. The minimum requirement of non-fatty solids is 8.5 par cent, whereas 8.34 per cent was found in the sample. Thus the deficiency was only of 0.16 per cent which was very minor. However, since the can from which this sample was taken did not admittedly contain any indication, the standard to be applied is as that prescribed for buffalo's milk.
(12) I would, thereforee, accept the appeal, set aside the acquittal of the respondent and convict him under section 7/16 of the Prevention of Food Adulteration Act. In view of the fact that the offence was committed more than seven years ago I would not like to award a substantive term of imprisonment, which I would have normally done, and sentence him to pay a fine of Rs. 2,000.00 in default of payment of which he is directed to undergo rigorous imprisonment for four months, The fine is directed to be paid within one month from today.