ORDER - This is a revision application against a conviction under S. 7(16) of the Prevention of Food Adulteration Act. The applicant was fined Rs. 300/- and, in default sentenced to undergo three months' rigorous imprisonment by a learned Magistrate of Bareilly. The conviction and the sentence were maintained on appeal by an Additional Sessions Judge of Bareilly.

2. The prosecution case which has been believed by both the courts below, was that the applicant was exposing buffalo milk for sale and that a Food Inspector took a sample of that milk on payment of its price to the applicant and then sent it to the Public Analyst. The milk was found to be adulterated. Consequently, the applicant was prosecuted and convicted. The courts below found that the Food Inspector had paid nine annas as the price of the milk sold by the applicant to him as a sample. The milk taken as a sample, was divided into three portions, each sealed in a Phial which was labeled. One of the phials was handed over to the applicant who acknowledged it by giving a receipt. The report of the Public Analyst was also duly proved showing that the milk was adulterated.

3. It was argued before me that the Food Inspector had power under S. 10(1)(a)(i) to take a sample only from a person selling an article of food. It was also argued that there is no evidence that the buffalo's milk, alleged to have been sold by the applicant, was intended for sale it was urged that the case of the applicant was almost identical with the case of the accused in Public Prosecutor v. K. Reddiar, AIR 1959 Mad 333 in that case, the defence of the accused was that he was taking the milk to the hotel of his brother from the house of his brother, who used to keep buffaloes, and it was to be used for the purpose of making coffee for his brother's customers at the hotel. In other words, the accused in that case pleaded that he was merely a person executing an errand for his brother, and that he was not selling and did not intend to sell any milk to the Inspector or to anybody else. It was also held there by the trying Magistrate that the accused was an overawed by the Inspector that he could not refuse to give the milk to the Inspector when the milk was demanded and that the price was also accepted by the accused because be was unable to disobey the Inspector. The accused in that case had produced his own brother, the owner of the hotel and of the milk, as a defence witness. The defence of the accused was believed and he was acquitted. Consequently, the Public Prosecutor had appealed against the acquittal in the course at a judgment dismissing the appeal against acquittal a learned Judge of the Madras High Court observed, in dealing with the evidence in that case, that the Inspector had admitted that he did not see any-body else purchasing the milk from the accused. The learned Judge also held that the Magistrate who acquitted the accused was not correct in taking the view that there had been no sale to the Inspector. The learned judge, however held that there was room for doubt whether the milk was actually intended for sale it was also observed by the learned Judge that the brother of the accused should have been prosecuted.

4. In my opinion the Madras case is distinguishable on facts from the case before me. Nothing could be pointed out in the present case which could justify a finding that the accused did not intend to sell the milk. The applicant did not object to the sale of the mills at the time when the Inspector demanded it from him. I doubt very much whether the accused person, who judging from him name and residence appears to be a "pathan" of Rohilkhand could possibly be so overawed by the Food Inspector that he would obediently give the milk, take its price, accept the phial and then a notice and not protest at all against the coercive influence brought to bear upon him.

5. A sale has been defined in S. 2(18) of the Prevention of Food Adulteration Act. It includes a sale to a