1. This is an appeal preferred by the State against the order of acquittal by the Stationary Sub-Magistrate, Mangalore, in C. C. Nos. 14 and 19 of 1951.
2. The short facts are: On information received) the Sanitary Inspector Sri Sanjeevi Rao went to the shop of Janab Dada Haji Ibrahim Halari on 28-9-1950 at about 10-45 a.m. The Sanitary Inspector demanded and purchased one pavu of Bengal gram dhal and ten palams of flour at two annas each from out of the stock which was kept for sale in the godown situated at door No. 113 of the 20th Ward of Mangalore municipality. This purchase is spoken to not only by this Sanjeevi Rao examined as P. W. 1 but also by two receipts taken from this merchant marked as Exs. P. 1 and P. 2 & which have been signed 'per pro. Dada Haji Ibrahim Halari' by a clerk of that firm. The purchases were bottled and then they have been submitted to the Analyst. On examination it has been found that they contained artificial water-soluble-yellow-colouring matter derived from coal-tar. Therefore this merchant has been put up for an offence under Section 5(1)(a) and (b) of the Madras Act III of 1918 read with Rules 29 and 28-D framed under Clause (f) of Sub-section (2) of Section 20 of the aforesaid Act and G. O. No. 680 P.H., dated 24-2-1950 as amended in G. O. No. 1613 Public Health, dated 5-5-1950.
3. On coming to court, this Haji Ibrahim Hilari who was represented by a special vakalat contended that he was not guilty of the offence with which he was charged and stated nothing more than that and his learned advocate proceeded to argue on the information available without further examination or adduction of evidence on the part of the accused.
4. The learned Magistrate who tried this case came to the conclusion that the accused should be acquitted on two grounds, viz., that Exs. P. 1 and P. 2 have not been properly proved and secondly, that the sale in this case was not a voluntary transaction. The State has thereupon instructed the learned Public Prosecutor to file this appeal.
5. In my opinion, both the grounds put forward by the learned Magistrate are totally devoid of any substance. First of all Exs. P. 1 and P. 2 have been taken from the accused in the presence of the Sanitary Inspector P.W. 1. They have been signed then and there for the accused by one of his clerks. The learned Magistrate seems to have a singular idea of the provisions of the Evidence Act in that he thinks that a document cannot be proved by a person who was present when the statement therein was made and reduced to writing. So the first point taken by the learned Magistrate, beyond exhibiting his own ignorance of the rule of hearsay evidence, merits no attention at our hands and it has got to be rejected.
6. Turning to the second point the learned advocate on behalf of the accused before me relies upon the decision of Horwill J. in -- 'In re Ballamkonda Kanakayya', AIR 1942 Mad 609. In that case what happened was that A was the owner of shop where he kept and offered ghee for sale. B was working in that shop and his duty was to sell the ghee to customers. The Sanitary Inspector entered the shop, exercised his powers under Section 14 and demanded a sample from B who was then selling articles in his master's absence. The sample was found adulterated ghee and both the accused were prosecuted. The learned Judge remarked as follows:
'The charge against the petitioner was of offering ghee for sale; but it was argued that he would be guilty of selling the ghee. A sale is a voluntary transaction) even when it is preceded by an agreement to sell. When a person exhibits articles in his shop he is making a general offer to sell them, and any person who comes into the shop and offers the price accepts his offer; but the intending purchaser cannot use physical force or threats to compel the owner to part with the goods. , If he does, the transaction is not a sale. If the Sanitary Inspector has not exercised his powers under Section 14, but had merely tendered the money and the petitioner had voluntarily handed over the goods, then there would have been a sale; and the fact that it was subsequently found that the goods were required not for consumption but for analysis, would make no difference to the nature of the transaction that had been entered into. In this case, the petitioner would presumably not have parted with the goods voluntarily when he knew that they would be used for the purpose of bringing a case against him and his master. The petitioner was not therefore guilty of selling ghee. Lakshmana Rao J. in a similar case held that the parting with a commodity when it is demanded by the Sanitary Inspector in the exercise of his power under Section 14 of the Act did not amount to a sale.'
The facts of this case are however different and fall within the later decision in --'Public Prosecutor v. Ramachandrayya, 1948 M. W. N. Crl. 32. In that case what happened was that the Sanitary Inspector got a quantity of milk not obviously for his consumption or drinking more milk but only for the purpose of having that milk tested for finding out whether it had been adulterated. This transaction was described as not being a sale by the learned advocate who appeared for the accused in that case. Govinda Menon J. who went into the matter at great length held, following a previous judgment of this court by Kuppuswami Aiyar J. in --'Public Prosecutor v. Narayan Sing', 1944 MWN Cr. 131, that the transaction was a sale. The learned Judge remarked:
'In -- 'Public Prosecutor v. Narayan Sing', 1944 MWN Cr. 131, Kuppuswami Iyer J. has held that when a Sanitary Inspector purchased milk from the accused, tested it and found it was adulterated, the transaction amounted to a purchase and therefore the accused was guilty under Rule 29 (b) of the rules and Section 5(I)(b) read with Rule 27 of the Madras Prevention of Adulteration Act. Moreover, in this case Ex. P. 2 the receipt contains an admission by the second accused that he was selling buffalo milk to the Maruthi Vilas Coffee hotel and the transaction by which P.W. 1 got the sample is also admitted to be a sale. Apart from the admission contained in Ex. P. 2 when Mr. Venkatasubbiah exchanged money consideration for the milk, he was acting as a purchaser and the society, a separate legal entity, was performing a contract of sale in delivering milk. Therefore it may even be unnecessary to decide whether the transaction with P. W. 1 was a sale at all, even though I am convinced that it is also a sale.'
In this case I have already pointed out how the Sanitary Inspector went and demanded a small quantity of Bengal gram dhal and flour kept for sale in the godown and how he was sold at pavu for two annas and how this is acknowledged in the receipts Exs. P. 1 and P. 2 which have been properly proved. Therefore, the facts of this case fall directly under the decision in -- 'Public Prosecutor v. Ramachandrayya', 1948 MWN Crl. 32, cited above and the second ground on which the Magistrate acquitted this accused cannot be supported and has got to be rejected as wholly untenable.
7. In the result, the acquittal is set aside and the accused is convicted under Section 5(1) (a) and (b) of Madras Act III of 1918 read with Rules 29 and 28-D framed under Clause (2) of Section 20 (f) and G, O. No. 680 P.H. dated 24-2-1950 as amended in G. O. No. 1613 P. H. dated 5-5-1850.
8. The sentence to be awarded remains to be considered and having regard to the time which has elapsed, I think a moderate fine may meet the ends of justice. The accused is fined a sum of Rs. 60.