Transaction being sale to be governed by the provisions of the Act.

This is an appeal preferred by the State against the order of the acquittal by the Stationary Sub-Magistrate, Mangalore, in C.C. Nos. 14 and 19 of 1951.

The short facts are: On information received, the Sanitary Inspector Sri Sanjeevi Rao went to the shop of Janab Dada Haji Ibrahim Helari on 28th September, 1950, at about 10-45 A.M. The Sanitary Inspector demanded and purchased one pavu of Bengal gram dhal and ten palams of flour at two annas each from out of the stock which was kept for sale in the godown situated at door No. 113 of the 20th Ward of Mangalore municipality. This purchase is spoken to not only by this Sanjeevi Rao examined as P.W. 1, but also by two receipts taken from this merchant marked as Exs. P-1 and P-2 and which have been signed “per pro Dada Haji Ibrahim Halari” by a clerk of that firm. The purchases were bottled and then they have been submitted to the Analyst. On examination it has been found that they contained artificial water soluble yellow colouring matter derived from coaltar. Therefore this merchant has been put up for an offence under section 5(1)(a) and (b) of the Madras Act III of 1918 read with Rules 29 and 28-D framed under clause (f) of sub-section (2) of section 20 of the aforesaid Act and G.O. No. 680 P.H., dated 24th February, 1950, as amended in G.O. No. 1613, Public Health, dated 5th May, 1950.

On coming to Court this Haji Ibrahim Helari who was represented by a special vakalat contended that he was not guilty of the offences with which he was charged and stated nothing more than that and his learned advocate proceeded to argue on the information available without further examination or adduction of evidence on the part of the accused.

The learned Magistrate who tried this case came to the conclusion that the accused should be acquitted on two grounds, viz., that Exs. P-1 and P-2 have not been properly proved and secondly, that the sale in this case was not a voluntary transaction. The State has thereupon instructed the learned Public Prosecutor to file this appeal. In my opinion both the grounds put forward by the learned Magistrate are totally devoid of any substance. First of all, Exs. P-1 and P-2 have been taken from the accused in the presence of the Sanitary Inspector P.W. 1. They have been signed then and there for the accused by one of his clerks. The learned Magistrate seems to have a singular idea of the provisions of the Indian Evidence Act in that he thinks that a document cannot be proved by a person who was present when the statement therein was made and reduced to writing. So the first point taken by the learned Magistrate, beyond exhibiting his own ignorance of the rule of hearsay evidence, merits no attention at our hands and it has got to be rejected.

Turning to the second point the learned advocate on behalf of the accused before me relies upon the decision of Horwill, J., in In re Bellemkonda Kanakayya1. In that case what happened was that A was the owner of a shop where he kept and offered ghee for sale. B was working in that shop and his duty was to sell the ghee to customers. The Sanitary Inspector entered the shop, exercised his powers under section 14 and demanded a sample from B who was then selling articles in his master’s absence. The sample was found adulterated ghee and both the accused were prosecuted. The learned Judge remarked as follows:

“The charge against the petitioner was of offering ghee for sale; but it was argued that he would be guilty of selling the ghee. A sale is a voluntary transaction, even when it is preceded by an agreement to sell. When a person exhibits articles in his shop he is making a general offer to sell them, and any person who comes into the shop and offers the price accepts his offers; but the intending purchaser cannot use physical force or threats to compel the owner to part with the goods. If he does, the transaction is not a sale. If the Sanitary Inspector had not exercised his powers under section 14, but had merely