1. The accused in C.C. No. 244/1124 on the file of the 2nd Class Magistrate of Cochin are the revision petitioners in this case. The accused who are two in number were tried for offences punishable under Section 4(1)(d) read with rules 27 and 28 of the Cochin Prevention of Food Adulteration Act (XIV (14) of 1109). The prosecution case is that the 1st accused who is the owner of shop No. ,140 in the Mattancheri Town offered for sale in his shop adulterated 'ghee' containing 15 per cent, of pure 'ghee1 and 85 per cent, of fat. The 2nd accused who is an employee of the 1st accused sold such 'Ghee' to P.W. 1 the Sanitary Inspector of Mattancherri on 28.3.1124. The complaint was filed by the Sanitary Inspector as per order of the Municipal Commissioner of Mattancherry who is for Local Food Inspector for the town. Both the accused were found guilty and the 1st accused was sentenced to pay a fine of Rs. 85 and in default to mearge simple imprisonment for one and a half months. The 2nd accused was sentenced to pay a fine of Rs. 50 and in default to undergo simple imprisonment for one month. Both the accused appealed from the decision before the District Magistrate of Trichur who confirmed the conviction and. sentence.
2. The two points urged in this revision petition are that the condition laid down in Section 17 of Act XIV (14) of 1109 for instituting prosecution under the Act is not satisfied in this case and that the 2nd accused has not in any case committed an offence as the delivering of 'ghee' to the Sanitary Inspector under Section 13 of the Act was not a voluntary sale and hence not an offence under the Act.
3. As for the first point it Is argued that P.W. 1 the Sanitary Inspector who filed the complaint in this case is not one competent to file it under Section 17 of the Act. Section 17 reads thus:
No prosecution under this Act shall be instituted except on the complaint of the purchaser or of the local Food Inspector or under sanction of the Government.
Section 3(1) of the Act provides that the local Food Inspector may delegate his powers and duties under the Act to such persons and in such manner as may be prescribed. It is argued for the prosecution that the local Food Inspector namely the Municipal Commissioner has delegated his power to file the complaint in this case to P.W. 1 the Sanitary Inspector. It is also contended that P.W. 1 is the purchaser of 'ghee'. The revision petitioners' case is that P. W. 1 is not a purchaser of 'ghee' and that the authority to prefer a complaint under the Act is not one that can be delegated by the local Food Inspector to any other person.
4. With regard to the question whether P.W. 1 Is a purchaser coming within the purview of Section 17, the case of the accused is that the delivering of a sample of 'ghee' to the Sanitary Inspector under Section 13 of the Act is not a sale and that therefore the Sanitary Inspector cannot be said to be a purchaser of such 'ghee'. Section 13 reads thus:
13(1). The local Food Inspector may purchase a sample of any article of food from any person exposing such article for sale or from any person who is in the course of delivering or preparing to deliver it to a purchaser or consignee, and may submit it to be analysed by the Public Analyst appointed for the area within which such sample has been procured.. (2) Every such person who refuses to sell such sample to the local Food Inspector or any person duly authorised by him at the price at which he usually sells the articles shall be punished with fine which may extend to Rs. 100/.
5. It is seen from the evidence that the Sanitary Inspector went to the shop of the 1st accused in his official capacity and demanded a sample of the 'ghee' that was offered for sale in the shop. The 2nd accused who was in the shop was bound to sell him the 'ghee' under Section 13(2) of the Act. if he refused to sell the 'ghee' he would be liable to be punished with fine which may extend to Rs. 100/-. In the circumstances, it is argued that the delivering of the sample of the 'ghee' to P.W. 1 cannot be said to be a sale although P.W. 1 paid price for the same. The question for consideration is whether P.W. 1 can be said to be a purchaser of the 'ghee' even though the sale of the 'ghee' to him was not a voluntary sale.
Apart from the question whether the sale in such circumstances would constitute an offence or not there is no reason to hold that the transaction is not a sale. The words used in Section 13 are 'purchase' and 'sale'. There is nothing in Section 17 to indicate that the word 'purchaser' used in that section is limited to the case of a purchaser under a voluntary sale. The delivering of an article for price even when the seller is compelled to deliver the same is sale. Under the Sale of Goods Act a sale of goods takes place when the seller transfers the property in the goods to the buyer for a price. In this case there was delivery of the article to P.W. 1 for a price paid by him. Therefore the transaction is nothing but a sale, and P.W. 1 is a purchaser coming within the purview of Section 17.
In this view of the matter, it is not necessary to consider the question whether the authority to file a complaint under the Act can be delegated by the local Food Inspector to another person, and to canvass the correctness of the decision in Hajee habeeb hajee peer mohammed v. Mattan-chebri municipality 38 Cochin 519, relied on by the prosecution, in which it was held that the local Food Inspector could validly delegate the power or duty vested in him under Section 17 to his subordinate. It may however be observed that Section 17 only lays down a condition for instituting prosecution under the Act. One of the conditions is that the complaint should be by the local Food Inspector. It is doubtful whether this is a power or duty that can be delegated under Section 3(1). But as it is not necessary to decide the question in this case, in view of my finding that P.W. 1 is a purchaser competent to file a complaint under the Act, I do not propose to say anything more on the point.
6. With regard to the 2nd point, namely that the 2nd accused cannot in any case be said to have committed an offence by delivering the sample of 'ghee' to P.W. 1 when demanded by the latter under Section 13 of the Act, I think there is some force in the contention. The offence with which the 2nd accused was charged was the sale of adulterated 'ghee' to P.W. 1. Even though the delivering of an article of food to the local Food Inspector or to his subordinate under Section 13 is a sale, I do not think that such sale will constitute an offence under the Act. Under Sub-section (2) of Section 13 any person who refuses to sell the sample is liable to be punished. Therefore the 2nd accused was bound in law to sell the article to P.W. l.
Under Section 4(a) of the Act the sale of an article of food will be an offence only when the food sold is not of the nature, substance or quality of the article demanded by the purchaser. When a sample of the article is demanded by the local Food Inspector or his subordinate under Section 13 it is the article that is actually offered for sale that is demanded by him. The sale of such article cannot constitute an offence under Section 4(1)(a). It is only when the purchaser demands an article of a particular nature, substance or quality and an article of a different nature, substance or quality is sold to him that an offence is committed under the Act.
IN re Bellemkonda Kanakayya AIR 1942 Mad 609, it was held that the parting with an article of food when it was demanded by the Sanitary Inspector in the exercise of his powers under Section 14 of the Madras Prevention of Adulteration Act (III (3) of 1918) (corresponding to Section 13 of the Cochin Act) does not amount to a sale within Section 5 of that Act (Section 4 of the Cochin Act). In that case A was the owner of a shop where he kept and offered 'ghee' for sale. B was working in that shop and his duty was to sell the 'ghee1 to customers. The Sanitary Inspector demanded a sample of the 'ghee' from B exercising his powers under Section 14. The sample was found to be adulterated 'ghee'. It was held that A was guilty of the offence of offering adulterated 'ghee' for sale but that B was not guilty of the offence of selling Such 'ghee' to the Sanitary Inspector.
This decision was based on an earlier decision of the Madras High Court reported in Public Prosecutor v. Srinivasa rao AIR 1938 Mad 541. The decision AIR 1942 Mad 609 was distinguished in a subsequent decision of the Madras High Court reported in 'Public Prosecutor v. Narayana Singh AIR 1944 Mad 236. In that case the Sanitary Inspector who found the accused offering milk for sale purchased from him milk for two annas with a view to test it. It was held that, as the evidence in the case showed that the Sanitary Inspector purchased the milk for price and that it was after purchasing the same that he noticed that it was adulterated, the sale to the Sanitary Inspector amounted to a sale within Section 5 of the Madras Act. It was also observed that in the case reported in 'AIR 1942 Mad 609' there was no proof of sale and that the evidence in that case disclosed that the Sanitary Inspector seized a part of the milk and sent it to the analyst and that therefore there was no sale of the milk.
A reading of the report of the case in AIR 1942 Mad 609 does not show that it was a case of seizure of 'ghee' (not milk) by the Sanitary Inspector. It was a case in which the Sanitary Inspector demanded a sample of the 'ghee', under Section 14 of the Madras Act as in the present case. If in this case the Sanitary Inspector did not demand a sale of the 'ghee' under Section 13 of the Cochin Act in his official capacity, but purchased it in the usual manner the position would have been different.
The evidence in this case is to the effect that the Sanitary Inspector went to the shop for the purpose of taking a sample of the 'ghee' accompanied by two Sanitary Maistries of the Municipality and that the Health Officer also was present when the sample was purchased. In the circumstances it cannot be said that the handing over of the sample by the 2nd accused to the Sanitary Inspector was a voluntary sale of the 'ghee' coming under Section 4 of the Cochin Act.
7. I am therefore of opinion that the 2nd accused has not committed any offence by delivering to P.W. 1 a sample of the adulterated 'ghee' under Section 13 of the Act. The conviction of the 2nd accused is therefore quashed. The fine paid by him will be refunded.
8. There are no grounds to interfere with the decision of the lower court so far as the 1st accused is concerned and the revision petition is therefore dismissed so far as the 1st accused is concerned and allowed so far as the 2nd accused is concerned.
9. Ordered accordingly.