The central legal point established in the judgment is the interpretation of the term 'sale' under the Prevention of Food Adulteration Act, and the conclusion that the transaction of obtaining a sample by the food inspector did not constitute a sale.

1. The accused in this case was convicted by the Additional First Class Magistrate, Kozhikode of an offence punishable under S.16 (1) (a) (ii) read with S.7 of the Prevention of Food Adulteration Act, 1954 (referred to hereafter as the Act) and sentenced to suffer rigorous imprisonment for one year. On appeal he was acquitted by the sessions court and the complainant, a food inspector, has brought this appeal against acquittal by special leave under S.417 (3) of the Criminal Procedure Code.

2. On 8-10-1959 Pw.1, & food inspector, stopped the accused when he was entering a coffee hotel with a vessel containing about four bottles of milk. He obtained one bottle of this milk from the accused following the procedure prescribed by S.10 and 11 of the Act. On analysis this milk was found to contain 14 per cent of added water

3. The prosecution case is that the milk was being taken by the accused to the coffee hotel for sale while the defence was that the accused, a milkman by caste and calling, was only delivering the milk he had got by milking the buffalo belonging to the proprietor of the coffee hotel at the latter's house, the proprietor having engaged him for the purpose on a monthly wage of Rs. 10/-.

4. The evidence of Pw.1 that the accused is a milk vendor stands uncontradicted, and it would have been reasonable enough to infer that the accused was, on the day in question, taking the milk to the coffee hotel for the purpose of sale in which case his very possession of the milk would be a sale within the definition in S.2 [xiii] of the Act and he would be undoubtedly guilty of the offence with which he was charged. But then there is the evidence of the hotel proprietor as Dw.1 in support of the defence and, although this evidence was rejected by the learned magistrate, it was accepted by the learned sessions judge. Whatever might have been the view that I myself might have taken had I been trying the case, I see no reason, sitting in appeal against the acquittal, to differ from the appreciation made by the learned sessions judge, especially since one reason that weighed with the learned magistrate in rejecting the defence namely that in another case the accused had put forward a fanciful plea, was altogether irrelevant. And I might observe that both the magistrate and the sessions judge appear to have misread the evidence when they say that, when Pw.1 questioned the accused after stopping him, the accused told him that he was taking the milk to the hotel for sale. This is not what Pw.1 said in his evidence. He merely made the assertion that he saw the accused going to sell milk at the coffee hotel. What the accused told him on being questioned was only that the milk he was carrying was buffalo's milk and belonged to him There is nothing in the evidence of Pw.1 or of his maistry, Pw. 2, who was with him at the time (and is the only other witness for the prosecution) to show that the accused told Pw.1 that he was taking the milk for sale. And since Pw.1 admitted that he had no information of what the milk was intended for, apart from what the accused told him, it follows that his statement that the accused was taking the milk for sale was only an inference.

5. Both the magistrate and the sessions judge have proceeded on the footing that the gravamen of the charge was that the accused was in possession of milk for the purpose of sale, an act which amounts to a sale by reason of the definition in S.2 [xiii] of the Act. If that were so there would be nothing more to be said in the case, but I find that the charge which the accused was actually called upon to answer was that he had sold one bottle of buffalo's milk which was adulterated with water. It is clear that the charge relates to the transaction by which Pw.1 obtained one bottle of milk from the accused, that it regards this transaction as a sale, and that it was this case, namely, that he had sold one bottle of adulterated milk to Pw-1 that the accused was called upon