The main legal point established is that milk is considered a produce of agriculture and a primary food under the Prevention of Food Adulteration Act, prohibiting the taking of samples if not intended for sale as milk.

1. The respondent was running a hotel and tea shop at Vythiri. On 1-7-1977 at about 4 P. M. the Food Inspector Kalpetta circle inspected the respondent's hotel and demanded 675 Mi of boiled milk from the respondent for the purpose of sampling. This was taken out from 10 litres of boiled milk stored in a brass vessel for the purpose of preparing tea. The sample so taken was sent for analysis and on the certificate of the Public Analyst that the sample was adulterated with 47 percent of added water the complaint was laid before the Magistrate. According to the accused the milk purchased from him was kept for the purpose of preparing tea and therefore no sample ought to have been taken from it. The learned Magistrate found that the sample was kept in the tea shop for the purpose of manufacturing tea and not for sale as such milk, that it was primary food and as such the sample ought not to have been taken under sub-section (2) of S.10 of the Prevention of Food Adulteration Act.

Accordingly the accused was acquitted under S.255 (1) of the Code of Criminal Procedure. The appeal it filed by the State against the judgment of the Magistrate.

2. The Judgment mentions that even according to the complainant the milk taken from the hotel of the accused was kept there for the purpose of manufacturing tea and not for sale as milk. There is no dispute on this point here also. But it is said that nevertheless since that milk has been sold to the Food Inspector such sale is of adulterated milk and as such the offence has been committed by the accused Reliance was placed on the decision of the Supreme Court in Food Inspector v. Gopalan, 1971 KLT. 462 (SC.) That the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale and that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article are principles stated by the Supreme Court in that case. If there was a sale and that happens to be of adulterated material that is sufficient to constitute an offence.

3. What was held by the learned Magistrate was that the Food Inspector should not have taken the sample at all and the taking of sample was in contravention of the Statute. If that be so, no conviction could be entered on the basis of the analysis of such sample.

4. S.10 (2) of the Prevention of Food Adulteration Act 1954 reads:

"10(2). Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture or any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis;

Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food "

By the proviso taking of sample of primary food is prohibited and unless when such primary food, sample of which is taken, is intended for sale as such food If milk is primary food and it is not intended for sale as milk, then the proviso to S.10 (2) prohibits taking of the sample. That the milk was not intended to be sold as such but was kept for use as an ingredient of tea is evident from the case of the complainant himself. Therefore the only question is whether milk is a primary food. If it is, taking of the sample was not authorised by law and a conviction on the basis of result of analysis of such sample cannot be made

5. "Primary food" is a term defined in the Prevention of Food Adulteration Act. S.2 clause (xii-a) inserted by Prevention of Food Adulteration (Amendment) Act, 1976 defines primary food as meaning any article of food, being a produce of agriculture or horticulture in its natural form. Milk is not a produce of horticulture. The controversy is whether milk is a produce of agriculture. If it is, since it was in its natural