The purchase by a Food Inspector for analysis constitutes a sale under the Prevention of Food Adulteration Act, and the mandatory provisions in S.13(2) of the Act are of a mandatory nature and must be complied with.

1. This appeal is directed against an order of acquittal passed by the Judicial Magistrate of 1st Class, Changanacherry, in a case under the Prevention of Food Adulteration Act which will hereinafter be referred to as 'the Act' for brevity.

2. On June 11, 1976 at about 6.30 a.m. pw.1. the Food Inspector, purchased 6 5 ml. of buffalo milk from a quantity of about 5 litres from the first accused who brought the same for supply to the Co-operative Milk Supply Society at Nedumkunnam, for the purpose of analysis. The milk belonged to the second accused who sent it through the first accused, his servant, for sale in the Society. As per Ex. P5, the report of the public analyst, the sample sent for analysis did not conform to the standard prescribed and also contained added water. The accused were therefore prosecuted for offences punishable under S.2 (1) (a) and 7 (I) read with S.16 (1) (a) (i) of the Act for having sold adulterated buffalo milk.

3. Although the first accused admitted that the milk belonged to the second accused and that the Food Inspector took some milk from the quantity of milk which he was carrying to the society, he denied having received any price.

4. The second accused admitted that the milk was sent by him through the first accused to the Society, but he stated that he was not aware of the purchase of the sample by the Food Inspector and that the Society to the which he supplied the milk will send the same to Kottayam for pasteurisation and that he used to receive the price once in two weeks.

5. One witness (Dw.1) the Secretary of the Society, was examined on behalf of the accused.

6. The trial court on a consideration of the evidence, found that pw.1 purchased the sample of buffalo milk as alleged from the first accused, that the milk belonged to the second accused and that "the milk supplied by the accused in the Society was for consideration in money", but relying on a decision reported in Municipal Corporation of Delhi v. Lakshmi Narayan (AIR 1976 SC. 621) held that there was no sale as defined under the Act as the milk which the Society collected was not intended for sale as such, and acquitted the accused.

7. The learned Public Prosecutor very strongly attacked the order of acquittal based on the finding that there was no sale in accordance with the definition of the Act and contended that on the facts proved and admitted, there was a sale in accordance with the provisions of the Act, and that the trial court has not properly understood the decision relied on, which has no application to the facts of the case and therefore the order of acquittal should be set aside and the accused convicted for the offences with watch they were charged.

8. The reasoning and ground on which the order of acquittal was based are clearly wrong and unsustainable as rightly pointed out by the learned public prosecutor. It has been sufficiently proved in the case that pw.1 purchased a sample of buffalo milk for the purpose of analysis in accordance with the provisions of the Act from the first accused who was carrying the same to the society at the Nedumkunnam and that the milk belonged to the second accused. These facts were not disputed before the trial conn and are not disputed before this Court also The trial court fell into a serious error by accepting the argument advanced on behalf of the accused that the milk from which pw 1 purchased the sample was being taken for the purpose of storing in the Society which only sent the same for sale to the Co-operative Milk Supplies Union, Kottayam and therefore it cannot be said that the first accused was carrying the milk for sale to the Society at Nedumkunnam. The second accused was a member of this Society to which be was supplying milk through the first accused, bis servant. The Society after collecting the milk will send the same to the Cooperative Milk Supplies Union, Kottayam which will sell the same after pasteurisation. It has also come out in evidence that after the p