CHHANGANI, J. - (1.) THIS is an appeal by the Municipal Council Jaipur City, on leave granted by this Court under sec. 417 sub-sec. (3) Criminal P. C. , against the order of the Municipal Magistrate, Jaipur City, dated 2nd August, 1963, acquitting the respondent Gyarsilal of an offence under sec. 7 read with sec. 16 of the prevention of Food Adulteration Act, 1954 (hereinafter to be referred to as the Act ).
(2.) THE material facts leading to this appeal may be stated as follows: THE accused-respondent Gyarsilal is a resident of Jaipur and is a licence holder for selling milk and sweet-meats. His shop was checked by the Food Inspector Tribhuvan Das Saxena PW-1 on 24th February, 1962. THE accused-respondent had two 'charis or pots' containing milk at his shop. THE Food Inspector treating the milk contained in them as the milk intended for sale and entertaining suspicion about the purity of the milk, obtained | seer of milk from one of the pots and paid 47 np to the accused. THE accused executed a receipt Ex. P-l acknowledging the receipt of 47 np. THE Food Inspector then divided the sample into three portions and put them into three phials. THE phials were properly labelled and sealed. THE Food Inspector gave notice Ex. P-2 to the accused-respondent in the prescribed form VI of his intention to have the milt analysed. He also gave one phial to the accused-respondent. THE form VI was duly thumb impressed by the accused-respondent. THE Food Inspector associated Surajnarain P. W. 3 and Purshotamdas as motbirs at the time of the raid and both of them attested the receipt Ex. P-l and the form VI (Ex. P-2 ). One of the phials containing the milk was sent to the Public Analyst, Rajasthan, Jaipur, on the same day. THE Public Analyst examined the milk on 26th and 27th March, 1962 and found that the milk was adulterated. After the receipt of the report from the Public Analyst the Food Inspector placed all the relevant papers before the President, Municipal Council, Jaipur. THE President, after scrutiny, took decision to prosecute the respondent and filed a complaint in the court of Municipal Magistrate, Jaipur City. In the complaint, it was alleged that the respondent had committed a similar offence on a previous occasion and consequently, it was prayed that the respondent should be awarded an enhanced sentence. On the allegation that the offence committed by the respondent was a second offence, warrant-case procedure was adopted. THE prosecution examined Tribhuvan Das Saxena P. W. 1, Shyam Behari Lal Saxena President, Municipal Council, Jaipur, P. W. 2, and Surajnarain P. W. 3 and closed their evidence. A charge under sec. 7 read with sec. 16 of the Act was framed against the respondent. The accused pleaded "not guilty". In his examination under sec. 342, Criminal P. C. he admitted that a 'chari' or a pot containing milk was lying at his shop and that the Food Inspector obtained 3/4 seer of milk from that pot. He, however, contended that the milk did not belong to him. It belonged to one Ram Gopal Tathera D. W. 1 who had brought it to his shop for the preparation of 'kheer'. He also stated that Ram Gopal was present at the time of the raid and had told the Food Inspector that the milk belonged to him and had been brought there for preparation of 'kheer', and had also demanded the price of the milk. According to him, the Inspector had not agreed to pay the price to Ramgopal and had given the threat that he would call the police on his non-acceptance of the price. He further denied the presence of Surajnarain P. W. 3 at the time of raid and stated that Surajnarain arrived on the scene at a later stage. He examined Ramgopal D. W. 1 in defence. The Municipal Magistrate after referring to some portions of the statements of the prosecution witness Surajnarain and the Food Inspector held that the milk was not intended for sale and relying upon certain observations in The Public Prosecutor vs. Kandasamy Reddiar (l) acquitted the accused-respondent. The Municipal Council applied to this Court for special leave to appeal under sec. 417 sub-sec. (3) Criminal P. C. and the leave having been granted, this appeal has been filed. It was contended by Mr. Bhandari appearing for the appellant that the trial Magistrate committed an obvious error in holding that the milk belonged to Ram Gopal and had not been intended for sale. He also contended that the view of law taken by the Magistrate is wrong and it is not for the prosecution to prove that the milk was intended for sale. He relied upon In re, Ayyavoo (2) and Usman Ali Khan v. State (3 ). I would first address myself to the relevant law on the subject. Sale has been defined in sec. 2 (xiii) of the Act. The definition under the Act is much wider than the one in the Sale of Goods Act. Under the definition of the Act, even 'an agreement for sale, an offer for sale, the exposing for sale and an attempt to sell' are also included within the expression of "sale". It has been further made clear that the sale for the purposes of analysis as contrasted with sale for consumption will also be sale for the purposes of this Act. Section 10 (1) (a) empowers the Food Inspector to take sample of any article from a person selling such article. Sec. 10 (3) of the Act requires that the Food Inspector shall pay to the vendor the price for the sample at the cost calculated at the rate at which the article is usually sold. It is clear that a party supplying sample to the Food Inspector is to be treated as having sold the sample to the Food Inspector. A consideration of the definition of "sale" and the provisions of sec. 10 (1) (a) and 10 (3) of the Act in the back-ground of the definition of sale in the Sale of Goods Act prima facie appear to show that in order to prove the transaction of sale it is not necessary for a party alleging a sale to prove that the article was ordinarily intended for sale. Even so, relying upon Public Prosecutor v. Kandasamy Reddiar (l), the Magistrate held the counsel for the respondent contends that to establish a charge of selling adulterated milk it is necessary for the prosecution to establish that the milk from which the Sanitary Inspector gets a small quantity as sample is intended for sale. Indeed, the observations made in Public Prosecutor v. Kandasamy Reddiar's case (1) do lend support to the view taken by the Magistrate. It is, however, necessary to closely examine the case relied upon by the Magistrate. In that case (Public Prosecutor v. Kandasamy Reddiar) the defence of the accused was that he was taking the milk to the hotel of his brother from the house of his brother, who used to keep buffaloes, and it was to be used for the purpose of making coffee for his brother's customers at the hotel, and that it was never intended for sale and that when the Sanitary Inspector demanded he could not refuse to give the milk as it would have amounted to an offence. The defence prevailed with the Magistrate and the Magistrate acquitted the accused holding that there was no sale as such to the Inspector. On an appeal from the order of acquittal, the learned Judge held that there was a proper sale to the Sanitary Inspector but maintained the acquittal of the respondent observing that the milk was not intended for sale. The following observations of the learned Judge may be usefully quoted: - " (In such a case) whether accused is charged for an offence under the Prevention of Food Adulteration Act, thai is, for selling adulterated milk, the first essential requisite to be established is that the milk from which the Sanitary Inspector gets a small quantity from the vendor as sample is intended for sale. " At the later stage, the learned Judge observed, "what was given by the accused to P. W. I is undoubtedly sale but what was really to be decided was whether the milk which the accused was taking was intended for sale. On that question there is room for doubt and, therefore, the acquittal of the accused can be justified on that ground. " Now, if the learned Judge merely meant to emphasise the absence of intention to sell in inferring an element of compulsion in the transaction of sale and to treat the transaction of sale as vitiated, I have no hesitation in entirely agreeing with the Judge. If on the other hand, the observations are intended to convey that even on a proof of a voluntary sale by vendor to the Food Inspector the prosecution must, in order to succeed, further establish that the article was ordinarily intended for sale, I regret, I cannot agree with such a view. To constitute a sale all that is necessary is 'the transfer of property for price paid or promised or price partly paid and partly promised. It is not necessary that the article should be ordinarily intended for sale. I may observe in this connection that a vendor may voluntarily enter into a transaction of sale in respect of property not ordinarily intended for sale in a variety of circumstances, namely, in case of a pressing need or in a case when a more attractive price is offered. The crucial question for determination in such a circumstance should be not whether the article was intended for sale but whether there has been a voluntary sale not vitiated on account of any element of compulsion. It may be that the fact that the milk was not ordinarily intended for sale may be an element to be considered in determining the question whether the sale was voluntary or compulsory. This, however, is not equivalent to saying that the prosecution must not only prove that there was not only a voluntary sale but further show that the article sold was ordinarily intended for sale. In this view I find support from the two cases relied upon by the counsel for the appellant. In In re Ayyavco (2) a contention was raised that there was no sale within the meaning of the Act because the revision petitioner was only a servant of the employer and was taking the milk not being intended for sale at all. The contention was over ruled with the following observations: - "the point has no substance. The evidence which has been accepted by both the courts below, is very clearly to the effect that the Food Inspector, P. W. I, purchased this milk from the revision petitioner, for cash paid on the spot, and that is certainly a "sale" within the meaning of the Act. " In Usman Ali Khan Vs. State (3) the Madras case, Public Prosecutor v. K. Reddiar (1) came up for consideration. The learned Judge observed in the first instance that the case was distinguishable on facts. Dealing with the view propounded in Public Prosecutor v. K. Reddiar (l) the learned Judge observed as follows: "with great respect for the view of the Madras High Court, I am unable to agree that after a transaction has been held to be a sale, the question of any other intention of the accused, who has actually sold an adulterated article of food, matters at all. The requisites of mens rea in such a case are satisfied if there is intention to sell irrespective of the purpose for which the milk may be really intended. If an accused person is not exposing any article of food for sale he ought to refuse to sell when any person, including the Food Inspector, demands that any part of, the article of food for a price to be paid for it. All that the law requires in such a case is that there should be a sale of an adulterated food by a person, in contravention of sec. 7 of the Prevention of Food Adulteration Act, 1954, so as to make that person liable to be punished under the Act. The intention with which the article of food, which is actually found to be sold, is kept or carried by the person selling it is quite immaterial. The sale of an adulterated article of food is in itself an offence. " I respectfully agree with the observations extracted above. . In the light of the foregoing discussions I have no hesitation in holding that the question whether the article was intended for sale is not material or decisive in determining the guilt of the offender under the provisions of the Act. Let us now examine the case in the light of the above principles. Before doing so, it will be proper to deal with a submission of the respondent that in an appeal against acquittal this Court should be extremely slow to disagree with the trial court on pure questions of facts. The principles governing the mode of disposing of appeals against acquittals have been the subject matter of a good number of Supreme Court cases. The various cases of the Supreme Court were considered in Sanwat Singh vs. State of Rajasthan (4) and after the discussion of all the cases the law was laid down as follows: - "the following discussion yields the following results: - 1. an appellate court has full power to review the evidence upon which the order of acquittal is founded; 2. the principles laid down in Sheo Swarup's case, 61 Ind. App. 398, A. I. R. 1934 P. C. 227 (2) afford a correct guide for the appellate Court's approach to a case in disposing of ' such an appeal; and 3. the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons. " (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons", are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified. " These observations were further quoted with approval in Nihal Singh vs. State of Punjab (5 ). It is in the light of these principles that the evidence and the findings of fact arrived at by the trial court have to be examined. A perusal of the evidence on record shows that the Food Inspector obtained the sample and paid its price and the accused-respondent executed the receipt Ex. P-l. This receipt shows that the accused respondent intended to sell his own milk and did not give information to the Food Inspector that the milk belonged to Ramgopal. This receipt evidently is a factor against the suggestion now put forward on behalf of the defence. Similarly, the accused-respondent while accepting a phial of milk and putting his thumb impression on form VI also did not notify his objection to the sale of the milk and did not suggest that the milk did not belong to him. The Food Inspector was no doubt cross-examined on the point whether the milk belonged to Ram Gopal and that Ram Gopal claimed the price from him but he categorically denied such suggestions. He ofcourse stated that he did not know whether Ramgopal was present at the time of the raid or not.
(3.) SURAJNARAIN in cross examination stated that when the Food Inspector committed the raid on the shop of the accused-respondent three or four 'thateras' were persent. He, however, added that he did not know them by names but knew them only by faces. They were talking with the accused-respondent for prepara-tion of 'kheer' and 'malpuva'. He, however, did not remember whether the Tha-teras had told at the time of the raid that the milk belonged to them. He also did not remember whether the Thateras had asked the Food Inspector to pay the price of the sample to them. He also expressed ignorance about the fact whether the Food Inspector had given a threat to the accused that he would call the police on non-acceptance of price. Ram Gopal DW/1 alleged his presence at the time of the raid and further stated that he had told the Food Inspector that the milk belonged to him and that the sample should not be taken. He also states to have told the Food Inspector that the milk had been brought to the shop of the accused for the preparation of 'kheer'. This is all the evidence on the record. The Magistrate very much laid stress upon the statement of Suraj Narain and even went to the extent of holding it proved that the milk belonged to Ram Gopal. I have carefully considered the statement of Surajnarain. His statement is a halting one. He did not remember whether the ' thateras' had Claimed the milk as their own at the time of the raid. He also expressed ignorance that the 'thateras' demanded the price of the milk from the Food Inspector. From his mere statement that 'thateras' were present at the time of the raid and that they had some talk with the accused-respondent for the preparation of 'kheer' it would be quite impossible to arrive at a finding that the milk belonged to the 'thateras' Ramgopal. It may be pertinently pointed out that Suraj Narain was a motbir witness at the time of the raid. He has attested both the receipts issued by the accused and the form VI. These two documents go very much against the suggestion that at the time the accused-respondent objected to the sale and took a plea that the milk belonged to Ram Gopal. Had there been such an objection, I do not understand why such objection was not mentioned either in the receipt issued by the accused or in form VI. To me the present suggestion of the accused appears to be an after-thought and Surajnarain being a neighbour of the accused-respondent had made certain ambiguous statement to possibility help the accused-respondent. In my opinion, the appraisement of the evidence of Surajnarain by the trial Magistrate is entirely unsatisfactory and the conclusion drawn by the trial court on his evidence is altogether unwarranted. The trial Magistrate has referred to the portion of the statement of the Food Inspector to the following effect: - "that he did not know whether Ram Gopal was present at the time of the raid or not" and made an unnecessary capital out of it in favour of the accused-respondent. The Food Inspector could not have been expected to know the names of all persons present. His statement that he had no knowledge whether Ram Gopal was present or not, cannot be taken to imply that Ram Gopal must have been present and that the milk belonged to Ram Gopal. The Magistrate, in my opinion, had not indicated a proper approach to the case by his emphasis on such immaterial facts. The trial Magistrate had also emphasised the non-production of Purshot-tamdas the other motbir to the raid. I do not consider that on account of his non-production the defence could derive any support for the suggestion that the milk belonged to Ram Gopal. Ram Gopal's evidence also cannot be obviously accepted at its face value in the facts and the circumstances of the case. As I have already stated earlier in view of Ex. P1 and Ex. P-2 the present defence of the accused is an afterthought and in view of these documents the old bald statement of Ram Gopal in the absence of any complaint or earlier information to this effect given by Ram Gopal at any prior stage cannot be accepted. To me, it is quite clear that the Magistrate has not examined the case in a perper perspective and has unduly magnified an unimportant feature of the case and has completely brushed aside the most important features of the case. The finding of the Magistrate that the milk did not belong to the accused and belonged to Ram Gopal and was not intended for sale is altogether unsustainable on a proper appraisement of the evidence and materials on record. Even if it be assumed that the milk belonged to Ramgopal, the accused cannot derive any substantial advantage for himself. It is now well settled that the sale of milk by an agent or a servant is punishable under the Act. Therefore, if a sale by the accused-respondent is established the fact that the milk belonged to Ramgopal is of no consequence whatsoever. ;