L.S. Mehta, J. - (1.) ON February 28, 1968, P.W. 1 Balraj Singh, Food Inspector, Ajmer, after issuing requisite notice (Ex. P. 1), purchased at Ajmer 12 'Chhatanks' of cow -milk from Khaju Gujar, resident of Kalyanipura in lieu of 60. P. for the purpose of an analysis. The milk was divided into 3 equal parts, each of which was kept in a bottle, which was duly sealed. One of the samples was given to the accused Khaju and a receipt thereof there of Ex P. 2 was obtained from him. The other sample was kept by the Food Inspector and the third one was sent with a memorandum Ex. P. 4 to the Public Analyst, Ajmer, for ascertainment of chemical elements. The sample reached the hands of the Public Analyst on February 28,1968. He at first compared the seal on the container of the sample with the specimen impression received by him separately and found the seal on the bottle identical and in tact. Thereafter he analysed the sample and certified the result as under: 1. Fat content 5 2% 2. Solids non -fat content 7.56% In the opinion of Public Analyst the sample did not conform to standard of purity prescribed by Prevention of Food Adulteration Rules, 1955 due to low percentage of solds not fat contents. The Analyst found that the sample contained 11% of added water. After obtaining necessary sanction from the Local Body a complaint was made in the court of the Municipal Magistrate, Ajmer. The accused was charged by the trying Magistrate under Section 16, read with Section 7 of the Prevention of Food Adulteration Act (here in after referred to as the Act), to which he pleaded guilty and did not claim trial. The Sub -Divisional Magistrate did not rest content with the admission of the guilt and proceeded with the trial of the accused Khaju He examined P.W. 1 Balraj Singh. In his statement, recorded under Section 342, Cr.P.C, the accused denied to have committed the offence. In his defence he produced Girdharilal, D.W. J, who stated that he did not see him selling milk. The trial court, relying upon the testimony of P.W. 1, convicted the accused Khaju under Section 16, read with Section 7 of the Act and sentenced him to six months' rigorous imprisonment and to pay a fine of Rs. 1000/ -, in default to further undergo rigorous imprisonment for 3 months. The accused took an appeal against the above verdict in the court Sessions Judge, Ajmer who maintained the appellant's conviction, but reduced the sentence to 3 months' rigorous imprisonment and to pay a fine of Rs. 500/ -, in default to suffer two months' further rigorous imprisonment.
(2.) DISSATISFIED with the above judgment, Khaju has preferred this, revision -application. Learned Counsel for the accused raised, in the course of his arguments, the following three points: 1. that the trial court went wrong in holding that Khaju was a milk -vendor; 2. that the prosecution did not examine the 'Motbirs' in whose presence sample of milk was obtained from the accused and that it was improper on the part of the learned Magistrate to base conviction solely on the statement of the Food Inspector Balraj Singh, P.W, 1; That if the conviction of the accused is some how maintained the sentence imposed on him deserves reduction as the milk contained 5. 35 fat content, which is more than the prescribed limit. 3. As for the first point raised on behalf of the petitioner, it may be "X stated That the evidence of Balraj Singh, P.W. 1, shows That the sample of milk was obtained from the accused Khaju in lieu of CO P. after giving him a notice in the prescribed form (Ex. P. 1). The definition of 'sale' as given in Section 2(xiii) of the Act, runs as follows - "Sale" with its grammatical variations and cognates expressions, mean the sale of any article of food, whether for Cash or on credit or byway 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 Act gives a special definition of the word 'sale' in Section 3(xiii), which includes within its ambit a 'sale' for analysis. A 'sale' for analysis must, therefore, be considered as 'sale' even if the transaction contains an element of compulsion. A contract is brought about by acceptance of a proposal made by one person to another by That other person. The latter is not bound to accept the accept the proposal. It does not, however, necessarily follow That where That other person has no choice but to accept the proposal, the transaction would not amount to a contract vide Mangaldas v. : 1966CriLJ106 . Where, therefore, a milk - vendor sells to a Food Inspector milk for analysis, That transaction will be covered by the ambit of the Act. In the instant case the Food Inspector Balraj Singh bought for analysis sample of milk from the petitioner and, therefore, the sale became complete within the meaning of the Act. The definition of 'sale' is also satisfied even if the matter is looked at from another angle. In this case the accused was carrying milk from his village Kalyanipura to Ajmer for sale. That would obviously imply That he was having the stuff in his possession fore sale. Manifestly this aspect could also bring the transaction within the definition of 'sale' Thus, the first point canvassed on behalf of the petitioner is devoid of substance.
(3.) I now take up the second point pressed on behalf of the petitioner regarding the non -examination of 'Motbirs'. Learned Counsel for the petitioner submits that under Sub -section (7) of Section 10 of the Act, when Food Inspector takes a sample, he has to call one or more persons to be present when such action is taken and to take his or their signatures on requisite memorandum. Here the Food Inspector while taking the sample called Kishore and Tarachand to be associated with the proceedings and their signatures were obtained on Ex. P.3. But these attesting witnesses have not been examined in the trial court. Failure to examine them learned Counsel adds, raises a presumption against the prosecution under illustration (g) to Section 114, Evidence Act.;