T.C. Raghavan, J.
1. The respondents in these two appeals have been acquitted by the District Magistrate of the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The charge against them was that they sold sugar adulterated with saccharin to the Food Inspector. The respondents were owners of tea shops; and they did not sell sugar as such in their shops. The District Magistrate has acquitted them on the ground that the sugar they sold to the Food Inspector was not meant to be sold, in other words, the respondents were not dealers in sugar.
2. Saccharin is not prohibited as an admixture in some articles of food. Rule 44 of the Prevention of Food Adulteration Rules of 1955 prohibits the sale of certain mixtures. But, under Clause (g) of the rule, any article of food, which contains any official sweetener except saccharin, alone is prohibited. Rule 47 prescribes that saccharin may be added to any food, if the container of such food is labelled with an adhesive declaratory label snowing that it contains an admixture of saccharin.
3. Admittedly, what happened in these cases was that the Food Inspector went to the tea shops of the respondents and purchased samples of sugar from them, kept in bottles not labelled. It is also admitted that the respondents were not selling sugar as such, in other words, were not dealers in sugar. But, the argument of the counsel of the Food Inspector is that the sale of sugar to the Food Inspector is a sale as contemplated by the Act; and that if the article sold was an adulterated article of food, the vendor of such article committed an offence under the Act.
4. Section 5 of the Act prohibits the import, inter alia, of adulterated food. Section 7 prohibits the manufacture for sale, the storing, the selling or the distribution of, inter alia, any adulterated food. Section 16(1)(a)(i) provides penalties for importing adulterated food, manufacturing adulterated food for sale, storing adulterated food, selling adulterated food, or distributing adulterated food. From Sec. 7 it is quite clear that the storing and the distribution mentioned therein must also be for sale -- of course, the manufacture should be for sale as indicated by the wording of the section itself: there cannot be any doubt regarding that.
5. There is no case that the respondents in these cases have committed the offence of manufacturing or of storing or of distributing: the charge levelled against them is that they sold adulterated food.
The question then arises whether the sale of adulterated food to the Food Inspector is a sale under the Act, My learned brother, Raman Nayar, J., has held in Food Inspector, Calicut v. Parameswaran Chettiar, 1961 Ker LT 308 that a sale to the Food Inspector is not a sale coming within the mischief of Sec. 7 of the Act. But, the Supreme Court has held in Mangaldas Raghavji v. State of Maha-rashtra, AIR 19G6 SC 128, that a sale to a Food Inspector is also a sale coming within the section. Their Lordships have considered the decision of Raman Nayar, J., and have observed that it is difficult to appreciate the reasoning of my learned brother. Basing on this decision of the Supreme Court, the Counsel of the Food Inspector argues that, since admittedly the sugar contained saccharin and since the sugar was sold to the Food Inspector, the respondents have committed the offence under Section 16(1)(a)
The counsel has also drawn my attention to two decisions, one by the Gujarat High Court in State of Gujarat v. Asandas Kimmatrai, AIR 1964 Guj 191 and the other by the Allahabad High Court in Municipal Board, Faizabad v. Lal Chand, AIR 1964 All 199. V. B, Raju, J. of the Gujarat High Court has held in the former case that if the sample of adulterated food was sold to the Food Inspector, that would be an offence under Section 7; and that it was not necessary to prove that the sample was taken out of a larger quantity which was also intended for sale. According to Raju, J., even one act of sale or distribution would come within that section, There cannot be any doubt regarding this proposition, especially in view of the decision of the Supreme Court already cited. If the sample came from a larger quantity intended for sale, the offence would fall within the expression 'storing for sale' in Section 7; and if the evidence established that the storing was for sale, no further evidence regarding actual sale was necessary.
Therefore, the decision of the Gujarat High Court, as such, cannot be said to be against the contention of the respondents, which I shall by and by come to. In the other decision, a Division Bench ruling of the Allahabad High Court, what happened was that from the tea shop of the accused milk kept for mixing with tea or meant for preparing tea was purchased by the Food Inspector; and the milk was found to be adulterated. The Allahabad High Court has held that though the milk purchased by the Food Inspector was not meant to be sold as milk, since the accused sold the milk to the Food Inspector, the accused committed an offence which came within the word 'sell' in Section 7: the Division Bench has observed that the accused could have given the sample, but should have refused to take the price.
6. Now, I shall state the contention urged by the counsel of the respondents in these cases, The counsel urge that though the sale to a Food Inspector is a sale coming within Section 7 of the Act, every sale of every article of food by every person to a Food Inspector is not a sale under the Act. The counsel drew my attention to Section 10 of the Act dealing with the powers of the Food Inspector. Section 10(1) provides that a Food Inspector shall have power to take samples of any article of food from any person selling such articles; from any person, who is in the course of conveying delivering or preparing to deliver such article to a purchaser or consignee; and from a consignee after delivery of any such article to him. In the cases before me, the respondents do not obviously come within the category of persons who are in the course of conveying, delivering or preparing to deliver articles of food to a purchaser or consignee; and do not also come within the category of consignees to whom the articles have already been delivered.
The only question is whether they come within the first category, viz., persons selling such articles. In other words, the question is whether the respondents are persons 'selling sugar'. The argument of the counsel is that if the Food Inspector purchased an article of food from 'any person selling such article' (dealer), the purchase will be a purchase under the Act; on the other hand, if the purchase was from 'any person who is not selling such article', i.e., who was not a dealer in such article, the purchase Is not a purchase under the Act. The purchase by a Food Inspector or the sale to a Food Inspector must be construed in such a way as to conform with the Dowers he has to purchase articles of good. His powers are confined to purchases of articles of food from 'any person selling such articles', a dealer in such articles, and not from 'any person who is not selling such articles', I mean, a person who is not a dealer in such articles. A person 'who is not selling an article' (who is not a dealer in the article) is not bound to sell it to the Food Inspector: he can refuse to sell the article to the Food Inspector. However, if he unwarily or ignorantly sells the article to the Food Inspector, the law should not make him liable.
7. In the cases before me, it is admitted that the respondents wore not dealers in sugar. They were only dealing in prepared tea as a beverage; in other words, they were only owners of tea shops. Therefore, if the Food Inspector purchased sugar from, them, it was like a purchase of sugar by him from a privateindividual from his house. Such a purchase cannot be a purchase under the,Act, which will make the vendorliable for an offence under the Act.In this view, the Division Benchruling of the Allahabad High Court already referred to does not appear to laydown the correct law. Also, if the decision of Raju, J., of the Gujarat HighCourt lays down that any sale of an article of food to the Food Inspector by anyperson, whether a dealer in such articleor not, is an offence, I venture to observethat that decision also does not, in myopinion, state the correct legal position.
8. The acquittals of the respondentsby the District Magistrate are confirmed,and the appeals are dismissed.Appeals dismissed.