Storing or distributing adulterated food for purposes other than sale is not an offense under the Prevention of Food Adulteration Act.

JUDGMENT - R.A. JAHAGIRDAR, J.:---This appeal preferred by the State against an order of acquittal passed in respect of an offence under the Prevention of Food Adulteration Act, raises an interesting point of law.

2. The respondent-accused was running a hotel known as "Shankar Vilas Hindu Hotel" situated in Shetiya Market at Parel, Bombay. On 28th September, 1973 at about 3-15 p.m. the Food Inspector of the Food and Drugs Administration, visited the shop and after disclosing his identity, asked the accused to give him 60 ml. of buffalos milk. According to the prosecution, the accused gave the quantity of milk asked for and received Rs. 2/- as price of the same. After following the usual procedure of dividing the sample into three equal parts and adding 20 drops of formalin to each one of the said samples, and after the receipt of the report from the Public Analyst, to whom one sample was sent, the complainant filed this complaint against the accused, charging him with the offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

3. The Public Analysts report shows that the sample sent to him contained fat 2.4% and solids not fat 8.8%. The sample also contained 2.2% extraneous water. Since the appropriate rule prescribes that the buffalo milk should contain 6% of fat, it was found that the sample was deficient in fat by 57.8%.

4. The defence of the accused was that he was not dealing in milk at all and that he did not sell milk in his shop at all, but the milk which was kept in his shop was for the purpose of preparing tea which is sold to the customers. From this it was sought to be contended on his behalf that the technical sale which was effected to the Food Inspector was not a sale within the meaning of that word under the Prevention of Food Adulteration Act. The learned trial Magistrate accepted the defence, especially so when the Food Inspector himself had admitted in his evidence before the Court that when he sought to take the sample from the accused he had protested then and there that the milk in his shop was not meant for sale, but only for being used as in ingredient of the tea which he was selling from that shop. The learned Magistrate accordingly acquitted the accused of the offence with which he was charged, by his order dated 16th August, 1974.

5. The State has preferred this appeal challenging that order of acquittal and Mr. Barday, the learned Public Prosecutor appearing in support of this appeal, has criticized the judgment of the learned Magistrate by relying upon a judgment of the Supreme Court in (The Food Inspector, Calicut Corporation v. Cherukattil Gopalan)1, A.I.R. 1971 S.C. 1725. According to Mr. Barday in order that the sample taken by the Public Analyst should amount to a sale within the meaning of section 2(xiii) it is not necessary that the person from whom that sample is taken should be a dealer in the commodity of which the sample is taken. It is enough if he is a dealer in some articles and the article from which the sample is taken in the place where the other articles dealt with by him are also kept. Reliance on this decision of the Supreme Court by Mr. Barday is not without justification. The facts of that case are somewhat similar. In that case the accused was the Manager of a tea stall at Calicut. A sample of milk which was taken from him was found to be adulterated. It was contended on behalf of the accused that the milk from the sample was taken was not meant for sale to the members of the public, but it was being used only for the purpose of the preparation of tea which was sold to the members of the public. Repelling that contention the Supreme Court was pleased to hold by relying upon the definition of the term sale contained in the Act that even a sale for analysis amounted to a sale under that definition. The Supreme Court also held as follows :---

".......... We are also of the opinion that the person from whom the article of food has been purchased

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