C.B. Capoor, J.C.
1. This appeal by the State is directed against an order of acquittal recorded by Shri Guman Singh the then learned M. I. C., Sirmur District, in a case under Section 16 read with Section 7 (i) (a) (sic) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act.
2. Respondent No. I is a Halwai at Nahant and inter alia sells milk. Respondent No. 2 is employed by him as his servant for the sale of the articles. On 29th of May, 1962 at about 11.30 A.M. respondent No. 2 had on behalf of respondent No. 1 taken delivery of a can containing milk at the Bus Stand. The aforesaid can of milk had been transported in a bus and it appears from the statement made by Musadi Lal DW. 1 that it had been despatched by him. As soon as respondent No. 1 took delivery of the aforesaid can of milk the Food Inspector attached to the municipality of Nahan intercepted him and purchased 24 ounces of milk to serve as a sample. The aforesaid milk was put in three phials all of which were sealed and one of them was sent to the Public analyst for examination and as a result of analysis it was found to be deficient in solids other than fat. The respondents were accordingly prosecuted for contravention of the provisions of the Act as indicated above. They pleaded to be not guilty to the charges framed against them. In the main the defence was that the milk in question was despatched by Musadi Lal D.W. 1, that it was cows' milk and had yet to be tested when the sample was taken by the Food Inspector and was returned to the supplier on the same day that it was received. In other words the plea was that the milk was not the property of respondent No. 1 when a portion of it was purchased by the Food Inspector to serve as a sample.
3. On behalf of the prosecution Manohar Singh P.W. 2, Relu Ram P.W. 3 and the FoodInspector were examined as witnesses, and as has already been observed one Musadi Lal was examined on behalf of defence. The conclusions reached by the learned Magistrate were (i) that the milk in question was derived from cow and was not sold as buffalo milk, (ii) that the sample was not below the standard prescribed for milk derived from cow, (iii) that respondent No. 2 had stored the milk on behalf of respondent No. 1, but he was not liable for the offence as he was obliged to part with the milk when a sample of it was demanded by the Food Inspector and strictly speaking there was no sale by respondent No. 2, and (iv) that adequate quantity of preservative was not added to the sample by the Food Inspector and the deficiency in the non-fat solids might have been due to that. He accordingly acquitted the respondents. The correctness of those findings has been challenged on behalf of the State.
4. I have heard the learned counsel for the parties. The appeal, as will presently appear, has no merits. My reason for arriving at the aforesaid conclusion is slightly different from the grounds on which the learned Magistrate has based his decision.
5. The respondents' case in the main was that the milk sample of which was taken by the Food Inspector had yet to be examined and tested and that it did not belong to respondent No. 1 at the time when sample of it was taken by the Food Inspector and as such it could not have been sold by respondent No. 1 or on his behalf by respondent No. 2. In support of the aforesaid case reliance has been placed upon the provisions of Section 41 of the Sale of Goods Act. That section reads as below:
'41. (1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.'
6. It would thus appear that if the milk had yet to be tested and examined the property therein could not be said to have been transferred to the respondent.
7. It is manifest from the statement made by respondent No. 2 that when the Food Inspector had demanded the sample of milk from him, he had said that the milk had yet to be tested and the statement made by Musadi Lal D.W. 1 indicates that the practice prevailing between him and respondent No. 2 was that if the milk was found to be below the prescribed standard it used to be returned and that the milk in question was returned by respondent No. 1 to him on the same day that it had been receivrd. There is no rebuttal of the aforesaid evidence. It might thus well be held that the milk in question had not been accepted by respondent No. 1 at the time when a sample of it was demanded by and given to the Food Inspector. It could not, therefore, be held that respondent No. 1 had either himself or by any person on his behalf stored, sold or distributed any adulterated food. The learned Magistrate in my opinion, was not correct in holding that while respondent No. 2 was conveying the can of milk from the bus stand he had stored milk on behalf of his master respondent No. 1. Respondent No. 1 was thus not guilty of the offence under Section 16 read with Section 7(1) (a) (sic) of the Act.
8. It has next to be considered if respondent No. 2 was guilty of the offence with which he was charged. The contention put forward on behalf of the appellant is that the giving of sample to the Food Inspector was tantamount to sale and respondent No. 2 was in any view of the case guilty of the offence and in support of that contention my attention has been invited to the definition of sale as given in Section 2 Clause (23) (sic) of the Act, which definition runs as below:
' 'Sale' with its grammatical variations andcognate expressions, means the sale of any articleof food, whether for cash or on credit or by wayof exchange and whether by wholesale or retail,for human consumption or use, or for analysisand includes an agreement for sale, an offer forsale, the exposing for sale, or having in possession for sale of any such article, and includes also anattempt to sell any such article.'
9. It is significant that the word 'sale' hasbeen used in the main body of the definition. Theword 'sale' ordinarily connotes a transaction voluntarily and willingly entered into between a sellerand a buyer whereby the property in the goods orproperty passed from the seller to the buyer. The words 'or for analysis' were designedly used by thelegislature in order that a purchase made for analysis and not for human consumption or use maybe within the ambit of the word 'sale'. If thosewords did not find place in the definition a purchase of an adulterated food stuff for the purposeof analysis would have been outside the purviewof the Act. A Food Inspector may purchase afood stuff in the ordinary course and may sendthe sample of it for analysis. Such a transactionwould be a sale as defined in the Act. But wherea Pood Inspector in the exercise of, his statutorypowers takes a sample of a food stuff for beingsent to the Public analyst, it could not be saidthat a transaction of sale had taken place. It has been held in the case of Food Inspector, Calicutv. Parmeshwaran Chettiar, 1962 (1) Cri LJ 152(Ker), that:-
'When a Food Inspector obtains a sampleunder Section 10 of the Act there is no sale. Ofcourse, it is possible for a Food Inspector, justlike any other human being, to effect a purchasein the ordinary course, and the transaction wouldbe a sale notwithstanding that the purchaser is aFood Inspector and that his purpose is to havethe article analysed with a view to prosecution.But, if he obtains the article not by a voluntaryexchange for a price but in the exercise of hisstatutory power under Section 10 of the Act thetransaction is not a sale, notwithstanding that inobedience to Sub-section (3) of Section 10 its costis paid to the person from whom the sample istaken.'
10. In the aforesaid case, the case of Public Prosecutor v. K. V. R. Annamalai Chettiar, AIR 1953 Mad 862, which was under the Madras Prevention of Food Adulteration Act was dissented from and the Madras decisions reported in Public Prosecutor v. Srinivasa Rao, AIR 1938 Mad 541 and In re Kanakayya, AIR 1942 Mad 609 were relied on and those reported in Public Prosecutor v. Narayana Singh, AIR 1944 Mad 236, Public Prosecutor v. Ramchandrayya, AIR 1948 Mad 329 and Public Prosecutor v. Dada Haji Ibrahim Helari, AIR 1953 Mad 241 were referred to and explained. In the case of Parshotom Dass v. State, AIR 1955 N. U. C. 455 (Patna) a view similar to the one which prevailed in the aforesaid Kerala case was taken. In the case of Dr. Makhan Lal v. Ram Bhakat, AIR 1953 Cal 485, observations were made indicating that in a case of compulsory acquisition by the exercise of statutory authority a transaction is not one of sale. A contrary view was taken in the case of State v. Amrit Lal Bhogi Lal, AIR 1954 Bom 216. That case was under the Bombay Prevention of Food Adulteration Act and in Section 11 thereof the words 'purchase' and 'sale' were used in regard to the Inspector obtaining an article for the purpose of analysis and paying the price for it whereas in the corresponding Section 11 of the Act the words 'purchase' or 'sale' or 'seller' or 'buyer' have not been used and the use of such words appears to have been studiously avoided. The aforesaid Bombay case, therefore, cannot be a safe guide for the determination of the question under consideration. I am in respectful agreement with the view taken in the Kerala case Supra.
11. Thus where a Food Inspector in the exercise of his statutory powers takes a sample of food stuff for being sent to the Public analyst the transaction is not tantamount to sale. Under Section 10 of the Act the Food Inspector has power to take sample of any article of food from (i) any person selling such article; (ii) any person who is in the course of conveying, delivering, or preparing to deliver such article to a purchaser or consignee; (iii) a consignee after delivery of any such article to him. Section 16 of the Act provides the penalty, if any person--(a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of the Act or of any rule made thereunder, or (b) prevents a Food Inspector from taking a sample as authorised by the Act.
12. In the instant case the Food Inspector was not authorised to take a sample as respondent No. 2 was not selling the milk and though he was in the course of conveying the milk to his master's shop, he was not conveying it to a purchaser or a consignee. At the same time on a perusal of the statement made by respondent No. 2 no doubt is left in one's mind that the sample of milk was given by him to the Food Inspector under protest and not willingly and that he laboured under the impression that he was bound under law to give the sample of milk as desired by the Food Inspector, and it could not, therefore, be said that a transaction of rate was enter-ed into between him and the Food Inspector. I am, therefore, of the opinion that respondent No. 2 was also not guilty of having contravened the provisions of Section 7 of the Act.
13. Now I advert to the contention advanced on behalf of the appellant that as at the time of giving the sample to the Food Inspector respondent No. 2 had not indicated that it was cows' milk it should be presumed that the milk was derived from buffalo and in support of that contention reliance has been placed upon Rule A. 11.01.03, Appendix B to the Act. The relevant portion of that Rule reads as below: -
'Where milk, other than skimmed 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.'
14. The evidence adduced in the case does not indicate that at the time of giving the sample to the Food Inspector, respondent No. 2 had indicated that the milk of which sample was being given was derived from cow, goat or sheep-Even in his statement under Section 342 Cr. P. C. respondent No. 2 did not state that the milk was derived from a cow. In the circumstances it should be presumed that the milk had been derived from buffalo and the evidence led on behalf of the respondents to the effect that the milk had been derived from a cow would be of no avail. The report of the Public analyst indicates that the sample sent for examination was below the standard prescribed for milk derived from buffalo.
15. It only remains to consider if the learned Magistrate was right in holding that the deficiency in non fat solids detected as a result of analysis might have been due to the non-mixing of sufficient quantity of preservative. The learned counsel for the respondents has not been able to invite my attention to any authority to support the aforesaid view of the learned Magistrate. The non-mixing of sufficient quantity of preservative might make the sample unfit for analysis and examination but that by itself cannot bring about a reduction in the fat or non-fat solid contents of the sample of milk.
16. For reasons assigned in the earlier portion of this order the appeal fails and is herebyrejected.