A non-voluntary transfer of an article of food to a Food Inspector in cases where the Food Inspector is not empowered to take the sample is not a sale for the purposes of the Prevention of Food Adulteration Act, 1954.

Shambhu Prasad Singh, J.

1. This is an appeal by special leave under Sec. 417(3), Criminal Procedure Code by the Chairman, Jugsalai Notified Area Committee, against a judgment and order of a First Class Munsif Magistrate at Jamshedpur acquitting the respondent of the charge under Sec.16(1) of the Prevention of Food Adulteration Act, 1954, (hereinafter to be referred to as the Act).

2. According to prosecution case, on 31-5-1965 a Food Inspector of the Committee (P. W. 1) went to the shop of the respondent and took sample of cows milk weighing 3/4th Seer, after observing the necessary formalities and on payment of price. He divided the milk into three parts and kept each part measuring 8 oz. in three bottles. He also added 8 drops of formalin (a kind of preservative) in each bottle and thereafter sealed and packed them. He gave one of the bottles to the respondent and took two of them with him. Out of those two, one was sent to the public analyst, who found the milk adulterated (vide his report Ext. 5). Thereafter a prosecution report was filed against the respondent and he was put on trial.

3. The defence of the respondent is that he does not sell milk; rather has got a tea and pakauri shop and the Food Inspector took the sample of the milk which he had kept at his shop for preparing tea and paid the price of it against his wishes. He claims that he has not committed any offence.

4. The prosecution examined two witnesses, the Food Inspector (P. W. 1) and another employee of the Notified Area Committee (P. W. 2). A third witness, a peon of the Notified Area Committee, was merely tendered. The defence also examined a witness.

5. The learned Munsif Magistrate did not find any defect in launching of the prosecution or with the taking of the sample of the milk by P. W. 1 but has acquitted the respondent on the grounds (i) that as the required quantity of formalin was not mixed up with the specimen, the respondent could not be convicted on its analysis, (ii) that as the Public Analyst was not examined in the case, the defence could not get an opportunity to cross-examine him and the respondent could not be held guilty on the basis of his report; and (iii) that as the accused had a stall of tea and pakauri and was not a seller of milk, he could not have been found guilty of adulteration of milk.

6. P. W. 1 in his cross-examination has admitted that the respondent has a shop of tea and he did not sell the milk in the formers presence, P. W. 2 has also admitted that he did not see the respondent, who sells tea, pakauri, singhara, etc. selling milk. The defence witness has said that the respondent has got a tea and pakauri stall, that milk is not sold at his stall and that the Food Inspector took the sample and paid price for it against the wishes of the respondent. On this evidence the question would arise whether the respondent can be held guilty for selling milk which was adulterated. It was contended by learned counsel for the appellant that a sale for analysis is a sale for the purposes of this Act Reliance was placed on the definition of sale in Section 2(xiii) of the Act which runs as follows:-

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" Sale with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article."

A sale for analysis is undoubtedly a sale according to the definition; but the question which arises for consideration is whether transfer of articles of food for analysis in all cases, whether voluntary or non-voluntary, amounts to a sale, for the purposes of the Act. According to provisions of the Act, transfer of articles of food for analysis may be to Food Inspector or to a purchaser other than a Food Inspect