FOOD INSPECTOR, KOZHIKODE MUNICIPALITY Vs. V.P. UMMAR

JUDGEMENT

(1.) THIS is an appeal against acquittal brought by special leave under section 417(3)of the Criminal Procedure Code.

(2.) THE accused is a general merchant of Calicut selling tea both wholesale and retail.It is not disputed that,on the morning of the 20th March 1957,P.W.I,a Food Inspector,duly appointed under section 9 of the Prevention of Food Adulteration Act,1954(Central Act XXXVII of 1954 ),accompanied by P.W.2,an Inspector of the Tea Board,who had come to Calicut to investigate the marketing of adulterated tea,went to the accused 's shop and took three samples of tea dust from the stocks there.These samples were sent to the Public Analyst for analysis;and it is again,not disputed that they were found to be adulterated within the meaning of the Act.In one of the samples there was 5 per cent of coffee husk;it was also dyed with a coal -tar dye.The remaining two contained 50 per cent and 45 per cent respectively of extraneous vegetable matter consisting of a mixture of coffee husk and gram husk;these also were dyed with a coal -tar dye.

(3.) WE are satisfied that the acquittal is wrong and has to be set aside.Taking first the question whether the transaction by which P.W.1 came by the samples of tea dust amounted to a sale,the evidence of P.W.1 to the effect that he asked the accused for tea dust,that the latter thereupon showed him his stocks,and that he purchased half a pound each from three different containers chosen at random,one an unopened gunny bag,another an unopened chest labelled B dust ;,and the third an opened gunny bag kept exposed for sale,stands uncontradicted.It was net suggested to P.W.1 that the samples were taken compulsorily in pursuance of his powers under section 10 of the Act;nor did the accused put forward any such case when he was examined under section 342, Cr.P.C Then,as also when questioned under section 242,Cr.P.C .,he was content with the bare statement that he had committed no offence.P.W.1's evidence read as a whole shows that he wanted to take samples from the stocks of tea kept by the accused,and,for that purpose,bought the tea in question from the stocks shown by the accused himself.P.W.2 's evidence to the effect that they took samples does not imply that the taking was otherwise than by purchase as spoken to by P.W.1;and,as we have already observed,there is nothing to show that P.W.1 made a compulsory acquisition of the samples,or put otherwise,that the acquisition was not through a voluntary sale by the accused within the ordinary meaning of that word.On the other hand,the fact that the accused issued P.W.1 the cash bill,Ext.P -1,showing the price of each half pound taken(6 annas,2 annas 6 pies,and 8 annas respectively,making a total of Rs.1 -0 -6)would show that the transaction was nothing other than an ordinary sale and purchase.It is not as if the accused was an ignorant person who,because P.W.1 wanted a receipt for the payment made by him,gave it in the shape of a cash bill.For,we find that in the bill which appears to be in his own handwriting he has described the tea as waste tea.P.W.1 's evidence show that what he asked for was tea dust,but that the accused gave him the articles in question as tea dust,but that,when it came to writing the bill,the accused insisted on qualifying the word tea with the word,waste ;.The purpose of the qualifi­cation is obvious.The accused must have thought that by adding that qualification he would be saved even if the tea was found to be adulterated.No such defence was however attempted either here or in the court below.But we are mentioning this fact in order to show that if really the taking of the sample by P.W.1 was not by way of an ordinary purchase,the accused being a willing seller,but was,as was argued on behalf of the accused,a compulsory acquisition for which,in accordance with the section 10(3)of the Act,the cost was paid,the accused would have been the last person to issue a cash bill which would serve to show that the transaction was just an ordinary sale.That a purchase,even if it be for the purpose of analysis,does not cease to make a sale is expressly laid down in section 2(xiii)of the Act,and it follows that the accused did sell adulterated tea,and that he did thereby commit an offence under section 16(1 )(a)read with section 7(i)of the Act.The question whether,when a sample is compulsorily taken,the pay­ment of its cost as required by the Act makes the tran­saction a sale within the definition in the Act does not arise on the facts of the case.