- (1.) TWO questions of law have been referred to us for opinion. The questions arose in a criminal revision filed by the accused against his conviction under Section 7/16 of the Prevention of Food Adulteration Act. The questions of law referred for our opinion were in the following terms: (1) Whether the transaction in which the possessor of an adulterated food refuses to sell but only permits the sample to be taken and does not take the price therefor amounts to "sale" within the meaning of Section 2 (xiii) of the Prevention of Food Adulteration Act? (2) Whether for an offence under Section 7/16 of the Prevention of Food Adulteration Act, it is essential that the adulterated food must be stored for sale or distributed by way of sale? At the time of hearing, learned Counsel for the accused contended that the evidence in the case was not to the effect that the accused had refused to take the payment but was to the effect that the price was not paid by the Food Inspector who collected the sample. In view of this assertion we thought it proper to amend the first question and have modified the first question to read as follows: Whether the transaction in which the possessor of an adulterated food refuses to sell but only lets the sample be taken and no price for the same is paid to him by the Food Inspector amounts to "sale" within the meaning of Section 2 (xiii) of the prevention of Food Adulteration Act?
(2.) THE Prevention of Food Adulteration Act lays down the procedure for collection of sample by the Food Inspectors. Section 10 deals with the power of Food Inspectors. Sub-section (1) thereof provides: A food inspector shall have power- (a) to take samples of any article of food from- (i) any person selling such article. (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; (iii) a consignee after delivery of any such article to him. . . . Sub-section (3) of Section 10 provides: Where any sample is taken under Clause (a) of Sub-section (1) or Sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken. Section 11 provides the procedure to be followed by the Food Inspectors. Sub-section (1) provides: When a food inspector takes a sample of food for analysis, he shall- (a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample. . . . "sale" has been defined in Section 2 (xiii) of the Prevention of Food Adulteration Act as: "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. " The definition of "sale" in the Prevention of Food Adulteration Act has thus been given a much wider meaning than it has in the Sale of Goods Act. Under the Prevention of Food Adulteration Act even an agreement for sale, an offer for sale, exposition for sale or even having in possession for sale an article of food is "sale". An attempt to sell is also a "sale". The purpose for which the purchase of food can be made is also its analysis.
(3.) AS the term "sale" does not find a specific definition in the Prevention of Food Adulteration Act, it has to be given the general meaning of sale. As ruled by the Supreme Court in I. T. Commr. , M. P. v. Dewas Cine Corporation "sale" according to its ordinary meaning is a transfer of the property for a price. Under the Prevention of Food Adulteration Act when a Food Inspector takes the sample and the law requires him to pay a price the transaction would be a 'sale' if the transfer of property takes place in the course of the taking of the sample. The same result will follow if the definition of "sale" given in the Sale of Goods Act is applied to the definition of "sale" in the Prevention of Food Adulteration Act. According to the Law of Contract by G. C. Cheshire and C. H. S. Fifoot, 7th Edition page 147, "transfer of property constitutes the essence of a contract of sale". As soon as the demand is made and the goods to be taken as sample are separated from the lot, the transfer of property takes place by virtue of the provisions of the Sale of Goods Act.;