PUBLIC PROSECUTOR Vs. GORRIPATI PITCHAIAH

JUDGEMENT

(1.) The State of Andhra Pradesh has preferred this appeal against the acquittal of the respondent by the Second Additional Judicial First Class Magistrate, Vijayawada in C.C. No. 648 of 1964 of an offence punishable under section 16 (I) (a) (I) of the Prevention of Food Adulteration Act. Sri Jayachandra Reddy, the learned Additional Public Prosecutor, has argued that the Magistrate has ignored the fact that the sale for analysis is also a sale within the ambit of section 2 (xiii) of the Act, that it is not necessary that in every case of seizure of the sample, there should be two mediators, and that non-production of the sample retained by the Food Inspector in the lower Court will not by itself show that the sample of 'curd' in this case was not purchased from the respondent. To appreciate the contentions of the Additional Public Prosecutor, the following relevant facts may be set out. On 30th January, 1964, the respondent (accused) was seen carrying ten seers of curd near Kaleswara Rao Market, Vijayawada. P.W. 1, the Food Inspector, who was accompanied by his maistry (P.W. 2) served a notice upon the respondent calling upon him to sell 3/4 seer of buffalo curd and paid Rs. 0-25 np. and obtained a receipt Exhibit P-3 from the respondent. He then sent one sealed part of the sample to the Public Analyst on 1st February, 1964 for analysis. The Public Analyst in his report, Exhibit P-4 dated 3oth April, 1964 gave a finding that the sample was deficient in fat to the extent of 96 per cent, and is therefore adulterated. He also noted in his report that no change had taken place in the article sent to him for analysis since the date of purchase, that would interfere with the analysis. It is on the strength of this report, Exhibit P-4 that P.W. 1, the Food Inspector laid, the complaint before the lower Court The defence of the accused was that he did not commit any offence, that he was taking the curd to his brother-in-law (D.W. 1) and that on the way P.W. 1 called him and obtained his thumb impression on a blank paper. The evidence of D.W, 1 is to the effect that on 30th January, 1964. the accused was asked to bring him curd and vegetables as he was performing " Satyanarayana Vratam " in his house and that the accused told him that a sample of curd was taken by the Food Inspector although he informed him that the curd was not meant for sale. It is the case of the accused that his thumb impression was obtained on a white paper so as to make the receipt, Exhibit P-3 The learned Mapistrate on a consideration of the evidence came to the conclusion that the Food Inspector did not procure any witnesses for the seizure the result of which occasioned the breach of the mandatory provisions of section 10 (7) of the Act, that he (P.W. 1) also filed to establish that the curd in the possession of the accused was intended for sale. Having regard to the defence pleaded by the respondent and the points raised by the learned Additional Public Prosecutor, it is necessary to first decide the question whether the sale of curd in this case to the Food Inspector constitutes a sale within the meaning of section 2 (xiii) of the Act. Mr. Suryanarayana Murthy appearing for the respondent contended that the first essential requisite to be established by the prosecution is that the respondent is a curd vendor and that it is not the purchase of sample in every case by the Food Inspector that would constitute a sale, unless the article of food is intended or exposed for sale. It may be necessary in this connection to notice the relevant provisions. Section 2 (xiii) defines ' sale ': 'sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such article. Section 2 (xiv) defines ' sample.' ' Sample ' means a sample of any article of food taken under the provisions of this Act or of any rules made thereunder.

(2.) The next relevant section is section 7 and it prohibits manufacture or sale of certain articles of food. Section 7 reads:

(3.) We are only concerned with the sale of an article of food, i.e., in this case ' curd '. The sale of an adulterated article of food by any person either on his own behalf or on beha f of another is prohibited under section 7. The Supreme Court dealing with the definition of sale held in Mangaldas v. Maharashtra State, (1966) 2 S.C.J. 87 : (1966) M.L.J. (Crl.) 506 : A.I.R. 1966 S.C. 128. that a sale to the Food Inspector for analysis although the transaction is not consensual is still a sale under the Act. To quote their Lordships: " The Act gives a special definition of ' sale ' in section 2 (xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion." Mr. Suryanaryana Murthy pointed out that in the case decided by the Supreme Court the arguments proceeded throughout on the footing that the transaction was a sale and further the appellant in that case was a wholesale dealer, commission agent and manufacturer of various kinds of spices and engaged in grocery business, and in this present case the respondent is not a dealer or vendor in any sense of the term and he was at best an agent of his brother-in-law, bringing him curd from his house for " Satyanaryana Vratam." It is further argued by him that if the definition of ' sale ' is to be stretched as to include every sale for analysis, then the Food Inspector would be at liberty even to demand from the individuals who keep articles of food for their domestic consumption and then contend that sale for analysis is also a sale within the meaning of section 2 (xiii) of the Act. In support of his contention, he invited my attention to a decision of Somasundaram, J., of the Madras High Court in Public Prosecutor v. Kandasamy, (1959) M.L.J. (Crl.) 239 : (1959) 1 M.L.J. 34 : A.I.R. 1959 Mad. 333. The view taken by the learned Judge is this: