1. This is a referenoe by the learned Seasiona Judge, Ajmer recommending that, the conviction and sentence of Tikam Chand Under Section 13, Punjab Pure Food Act (vm  of 1929) may be set aside, According to the prosecution, Man Mai, Food Inspector, took samples of milk from Tikam chand accused. One of the samples was sent to the Public Analyst for examination. The Public Analyst sent a report that, the milk was adulterated. The accused was therefore prosecuted for exposing adulterated milk for sale. The accused pleaded not guilty, and stated that, the milk in question did not belong to him but to another man called Mulla. The learned Magistrate did not accept this defence, and held that, it was the accused who was the owner of the milk. The accused was therefore convicted under Section 13, Punjab Pure Food Act for exposing adulterated milk for sale. The accused was fined Hs. 60, and was ordered to piy as. 6 as cost of analysis. The accused filed a revision petition before the learned Sessions Judge. The learned Judge has now made this reference recommending that, the conviction of the accused should be set aside.
2. The learned Judge has mentioned two points in support of his reference. A third point was raised by the learned Counsel for the accused during the arguments before me. The first sentence of the judgment of the learned Magistrate is: 'The accused in this case Shri Tikam Chand is Charged with exposing for sale....' The Court assumed that, exposing adulterated milk for sale was by itself an offence. In Sat Pal v. Lahore Municipality A.I.R. (28) 1941 Lah. 158 : 42 Cr.L.J. 523 the accused was convicted Under Section 13, Punjab Puce Food Act. It was held that Under Section13 (1)(a) of the Act it ia necessary to prove that the ghee was sold, but from the Food Inspector's statement no sale was proved. It merely appeared that, the ghee was exposed for Bale.
3. Section 18 (1)(a) of the Act states : 'No person Shall sell any adulterated food ....' Section 13 consists of several subsections and several clauses. All these Sub-sections and olauses refer to sales. I do not find anything in the Punjab Pure Blood Act which makes the act of exposing milk an offence.
4. The learned Assistant Public Prosecutor relied upon Sections 8 and 12 of the Act. Section 8 (1) states':
On payment or tender to any person selling any food or making any tood intended for gale ... any Inspector may at any place demand and select and take oc obtain a sample....
5. Section 12 (2) states:
The purchase or sale of a sample of any food under the provisions of this Act for the purposes of analysis shall be deemed to be a purchase or sale of such food for human consumption.
6. Man Mai Inspector appeared as a witness for the prosecution. He stated that he obtained sample of milk from the accused without any payment. Exhibit 2 ia a receipt issued for the milk obtained. In this receipt, it was written that, a sum of 0-3-0 was received as price of 6 chteau of milk sold to the Inspector. At the top of the receipt we find the words 'not charged'. It ia conceded on behalf of the prosecution that, in spite of the mention of 0-3-0 in the receipt, no payment was actually made by the Inspector to the aocused. But it ia suggested that, the price was offered but not accepted by the accused. There is no evidence to prove that, price was offered but was refused. Ia his statement, the Inspector distinctly stated that, he obtained the sample without payment. It may be that, the accused did not insist on getting a prioe for the milk. But it does not follow that, payment was offered by the Inspector. In the absence of any evidence to the effect, we must assume that, the Inspector obtained the sample without paying or offering any price.
7. So the sample was not obtained as contemplated by Section 8 of the Act. There was there, fore no purchase as contemplated by Sub-section (2) of 3, 12, The prosecution cannot therefore rely upon any constructive fale contemplated by Sub-section (2) of Section 12. There is thus no evidence that, the accused Bold adulterated milk. The accused could not therefore be convicted Under Section 13 o the Act. the learned Assistant Public Prosecutor urged that, he has been taken by surprise, because this point does not appear in the order of reference of the learned Sessions Judge. The reference was made upon a revision application by the accused. It was mentioned in that revision petition that, the Inspector took the sample without paying anything. The accused had been urging all along that, he had no concern with the milk at all. It cannot therefore be said that, non-payment of the price is a new point taken by the accused.
8. Since the conviction has to be set aside for the reason given above, it is not necessary to discuss the two points set out by the learned Sessions Judge. The reference is accepted, although upon a point not to be found in the order of reference. Tikam Chand's conviction and sentence Under Section 13, Punjab Pure Pood Act are set aside, and he is acquitted. If the fine has already been paid, it will be refunded.