Sathar Sayeed, J. - (1.) AGGRIEVED by the judgment in C.C. No. (sic) of 1975 on the file of the Judicial First Class Magistrate, Kulithalai, d. 3rd July, 1973, the State has preferred the above appeal.
(2.) THE short facts of the prosecution case are: The respondent (Rangaraj) was found in possession of 9 kilos of Bengal Gram flour and P.W.1 (A. Mustag Ahamed), Food Inspector, Karur Municipality on 28th November 1974 at about 8 -50 a.m., he visited the Maligai shop of the respondent at D -432, Sengunthapuram Main Street, Karur, when the Respondent was found in possession of the aforesaid gram flour. P.W.1 purchased 600 grams of that flour from the respondent for Rs. 2 -10 and the respondent has passed on a cash receipt Ex.P -2. As required by law P.W.1, who is the Food Inspector and who has purchased the alleged Bengal Gram flour has divided the said flour into three parts packed and sealed. One packet was handed over to the respondent under the acknowledgement, Ex. P -3. The other packet was sent to the Public Analyst Guindy and the third packet was produced in Court as M.O.1. When this part of the flour was sent to the public analyst, be found that it consisted of 80% of the Bengal gram mixed with 20% of smooth pea -flour. The report of the Public Analyst is marked as Ex. P -4 in this case and a copy of the said report was also served on the accused and an acknowledgement was obtained from him which is marked as Ex. P -5. Since the Bengal Gram flour seized from the respondent was not a pure one, a charge was framed against the respondent under S. 7(1), 16(1)(a)(i), read with S. 2(1)(a) and (1) of the Prevention of Food Adulteration Act, 1954. When the accused was questioned by the trial court he denied the offence and pleaded not guilty. Therefore, the Magistrate had to go on with the case. It may now be noted that on his behalf, the respondent examined his younger brother as D.W.1. The learned Magistrate, after going through the evidence adduced in the case and also on going through the report of the Public Analyst came to the conclusion that the prosecution hat not established the offence and, therefore, the respondent accused was found not guilty under the aforesaid sections and he was acquitted. It is against this acquittal of the accused in C.C. No. 200 of 1975, the State, as stated above, has filed the above appeal. The points for consideration in this case are: (1) whether there was a sale of Bengal Gram: and (2) whether the accused was the owner of the shop at the time when sample was taken by P.W.1 for analysis. According to S. 7 of the Prevention of Food Adulteration Act 1954, no person shall himself or by any person on his behalf manufacture for sale, or store sell or distribute any adulterated food, any misbranded food, any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence, any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of Public health or any article of Food in contravention of any other provision of this Act or any rule made there under etc. From a reading of S. 7 of the Act, it is clear that a person shall, either himself or any person on his behalf, if he sells any adulterated food or misbranded food, he is liable to be punished under S. 16 of the Act, S.16 of the Act provides penalties. S. 15(1)(a) of the Act says: "Whoever by himself or by any others person on his behalf imports into India or manufactures for sale or stores, sells or distributes any articles of food, etc....he shall, in addition to the penalty to which he may be liable under the provisions of S. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees". S. 16 has also got a provision which states "provided that if the offence is under sub -clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub -clause (1) of clause (i) of S. 2 or misbranded under sub -clause (k) of clause(ix) of the section or if the offence is under sub -clause (ii) of clause (a) the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both" etc.
(3.) IN this case, it is very clear that the respondent has sold Bengal Gram and a receipt for the sale of the food stuff was issued by the respondent to P.W.1. The learned counsel appearing for the respondent now contends that the respondent has no authority to sell or to issue any receipts for the sale of the article from the shop. He further contends that the evidence of respondent's younger brother who has been examined as D.W.1 clearly shows that the respondent is not employed in his shop. But it must be noted that from the evidence of D.W.1 it is evident that when the owner of the shop goes out under urgent work, he used to ask his brother (respondent) to look after his shop and on 28th November, 1974 at 8:50 a.m ." Text Removed Text Removed 8:50 a.m. it was only the respondent who has sold Bengal Gram to the Food Inspector (P.W.1) which is found to be adulterated. Therefore, it cannot be denied that on 28th November, 1974, the Respondent was in the shop and that it is only the respondent who has sold the Bengal Gram to P.W.1 which is found to be adulterated. The learned counsel appearing for the respondent further contends that it cannot be a sale. I do not agree with the respondent's counsel, because it has been specifically and clearly held in Food Inspector, Calicut v. Gopalan, A.I.R. 1971 1725, that sale of a sample of a food article to Food Inspector amounts to a "sale", as defined in S. 2(xiii) of the Prevention of Food Adulteration Act, 1954. It is also stated in the said decision that proof of dealership is not necessary, and once a person effects a sale as defined under the Act of an article of food which is found to be adulterated, such person is punishable under S. 16(1)(a)(i) read with S. 7. The Supreme Court has also held that it is not necessary to establish further that the person is a dealer in that article as such.;