SHRIMAL, J. - (1.) MUNICIPAL Council, Jaipur has filed this appeal by special leave against the judgment dated December 24, 1970 of the MUNICIPAL Magistrate, First Glass, Jaipur City (West) whereby he acquitted the accused-respondent Sitaram under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be called 'the Act')
(2.) THE prosecution story in a nutshell is that on January 16, 1968 at 7-30 a m. P. W. i Shri A. P. Goyal, Food Inspector, checked the shop of the accused-respondent located at Nahargarh Road, Purani Basti, Jaipur City. He found a bucket full of milk weighing nearly 8kg. and suspected it to be adulterated. Having disclosed his identity to the accused-respondent the Inspector served him a notice and then purchased 750 Gms. of milk for Rs. 1. 05 np. THE milk was divided into three parts. Each part was then filled in three clean and dry bottles. 16 drops of formalin were added to the milk filled in each bottle. All the three bottles were corked and sealed and wrapped in a paper which was signed by the Food Inspector and the attesting witnesses. A memorandum containing all the details of the action taken by the Food Inspector was prepared and is marked Ex P. 2. It bears the signatures of P. W. 1 A. P. Goyal, Food Inspector and two attesting witnesses P. W. 2 Harinarain and Ramesh Kumar. It also bears the signatures of the accused-respondent Sitaram, One sample of bottle was given to the accused-respondent and the other was delivered in the office of the Chief Public Analyst, Jaipur along with a specimen seal-impression. THE form containing the specimen seal-impression is Ex. P. 4. THE receipt for the delivery of the bottle in the office of the Chief Public Analyst, Rajasthan, Jaipur is also marked Ex. P. 4-A to B. THE third bottle was retained by the Food Inspector and was delivered in the office of the Health Officer, Municipal Council, Jaipur. THE sealed bottle was received by the Public Analyst on January 16, 1968 i. e. the date on which the same was purchased. It was analysed on January 17, 1968. He analysed the contents of the bottle and declared the result as under vide Ex. P. 5: - Fat contents . . . . . . 5-30 percent. Solid nonfat . . . . . . 7-82 percent. Cane Sugar and starch . . . . . . Nil. In the opinion of the Public Analyst the sample of milk was adulterated as it contained about 13 percent of added water. P. W. 1 A. P. Goyal, Food Inspector, filed a complaint in the Court of Municipal Magistrate, First Class, Jaipur against the accused-respondent Sitaram for his prosecution under section 7/16 of the Act. THE accused denied his complicity in the crime. The prosecution in support of their case examined two witnesses P. W. 1 A. P. Goyal, and P. W. 2 Hari Narain, out of whom the latter was declared hostile by the prosecution and was allowed to be cross-examined. The accused in his statement recorded under section 342 Cr P. C. denied the entire prosecution case. The defence of the accused was that the milk was meant not for the purpose of sale but for cleaning the sugar. The trial court gave the finding that it was not proved that the accused had kept the milk for sale, nor that the sale made to the Food Inspector was voluntary. The learned Magistrate decided all other points in favour of the prosecution. It is on the basis of this finding that the accused-respondent Sitaram was acquitted by the learned Magistrate. The learned counsel Mr. S. K. Keshote appearing on behalf of the Municipal Council, Jaipur challenged the finding of the trial court. He has urged that the trial court has failed to appreciate the proved facts of the case and the law applicable to it. His contention was that the conclusion reached by the trial court is obviously based on an erroneous view of law which has resulted in grave injustice. The testimony of P. W. 1 Food Inspector supported by documentary evidence Ex. P. 1 and Ex. P. 2 is sufficient to hold that the respondent was a milk vendor, Sec. 2 (13) of the Act is wide enough to cover the compulsory sale and the sale for analysis also falls within the ambit of this definition. The learned counsel for the accused respondent has supported the judgment of the trial court and has urged that the respondent did not want to sell the milk, but the Food Inspector obtained it not by voluntary exchange for a price but by exercise of statutory powers under the threat of calling the police and as such it does not amount to a sale. The point for consideration is whether the transaction in question i. e. taking of the sample by P. W. 1 A. P. Goyal, Food Inspector amounts to a sale and whether the accused-respondent could be said to have infringed section 7 (i) of the Act. P. W. 1 A. P. Goyal, Food Inspector, stated that on January 16, 1968 at 7. 30 a. m. he went to the shop of the accused for checking. He suspected the milk in the bucket to be adulterated. He disclosed his identity to the accused-respondent and asked him to show his licence. He purchased 750 Gms. of milk for Rs. 1. 05 np. The receipt of the amount evidencing the sale of the milk made by the accused-respondent is Ex. P. 1, which has been executed by the accused respondent himself, and bears his signature. It also bears the signatures of the two attesting witnesses P. W. 2 Har Narain and Ramesh Kumar. Ex. P. 2 is in two parts. The first half is the copy of form No VI, prescribed under the Act. The other half enumerates the details of the steps taken by the Food Inspector at the time of taking the sample, It also bears the signatures of the accused-respondent and the Food Inspector P. W. 1 A. P. Goyal. The ocular evidence given by P. W. 1 at the trial stands corroborated by both these documents Ex. P. 1 and Ex. P. 2. Thus from the prosecution evidence the taking of the sample from the accused-respondent by the Food Inspector on January 16, 1968 is proved beyond any doubt. A bare denial of the entire prosecution case by the accused respondent is not sufficient to rebut the positive statement of the Food Inspector. D. W. 1 Radhey Shyam has also admitted that the Food Inspector P. W. 1 A. P. Goyal went to the shop of the accused Sitaram on the date and at the time mentioned by the prosecution. The witness simply said that the accused had stated that the milk was not kept for sale but for cleaning the sugar. In fact he did not want to sell it, but on the persuasion of Harinarain he allowed the Food Inspector to take the sample. A careful examination of the statement of this witness does not negative the purchase of the sample of the milk by the Food Inspector PW. 1 A. P. Goyal from the accused. His statement was only to the effect that sale was not made voluntarily. Ex. P. 1 and Ex. P. 2 read with the statement of A. P. Goyal (PW. 1) make it absolutely clear that the sample of the milk was taken from the respondent against a payment of Rs. 1. 05 np. The definition of sale as given in S. 2 (xiii) of the Act runs as follows : - "2 (xiii) : "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 Act gives a special definition of the word "sale" in sec. 2 (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. The latter is not bound to accept the proposal. It does not, however, necessarily follow that where the other person has no choice but to accept the proposal the transaction would not amount to a contract. So when a milk-vendor sells to a Food Inspector milk for analysis, that transaction will be covered by the ambit of the Act. The matter is concluded by Mangaldas vs. Maharashtra State (1 ). In Food Inspector, Calicut vs. G. Gopalan (2) the Hon'ble the Supreme Court of India laid the law thus : - "there is no controversy that sugar with which we are concerned in this case is an article used as food for human consumption or at any rate it is an article which ordinarily entered into or is used in the composition or preparation of human food. Even according to the respondents the sugar so kept in their tea stall was intended to be used in the preparation of tea which was being sold to the customers. A reference to the definition of "sale" will also show that a sale of any article of food for analysis comes within that definition That the sample of food purchased by the Food Inspector in this case satisfies the definition of "sale" in clause 14 is also beyond controversy. "
(3.) IN Food INspector vs. Charukattil Gopalan (3) Hon'ble Vaidialingam, J. , speaking for the Court laid the law thus : - "to sum up we are in agreement with the decision reported in Municipal Board, Faizabad vs. Lal Chand Surajmal and another and the Public Prosecutor vs. Palanisami Nadar to extent to which they lay down the principle that when there is a sale to the Food INspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under sec. 16 (1) (a) (i) read with sec. 7 of the Act. We further agree that the article of food which has been purchased by the Food INspector need not have been liken the out from a larger quantity intended for sale. We are also of the opinion that the person from whom the article of food has been purchased by the Food INspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions. " In view of the law thus settled by the Hon'ble Supreme Court, it is difficult to appreciate the reason which led the trial court to hold that the transaction like the present one does not amount to a sale. The case: Municipal Council, Jaipur vs. Laxminarain (4) relied upon by the trial court is distinguishable in regard to the facts of this case. In that case the learned Magistrate found that the taking of the sample in the presence of the accused of that case was not established. His Lordship Hon'ble B. P. Beri, as he then was, while deciding the appeal No. 107 of 1965, upheld the finding of the fact and gave the benefit of the doubt to the accused. But in the case on hand, the sale of the sample of milk to the Food Inspector has been proved by cogent and reliable evidence. The other case relied upon by the trial court is Asgar vs. State (5 ). With great respect I am unable to agree to the interpretation placed by the learned Judge on sec. 2 (xiii) of the Act. The ratio decidendi of this case is contrary to the law laid down by their Lordships of the Supreme Court, referred to above and as such a detailed consideration of this case is not required to be made. The learned counsel appearing for the accused respondent has neither raised any other contention to support the judgment of acquittal passed by the trial court nor has he challenged the correctness of the other finding arrived at by the trial court in favour of the prosecution. An affidavit sworn by the son of the accused respondent was submitted by the learned counsel for the respondent on November 5, 1975 The learned counsel for the appellant has no objection to having this document on the record and its reading in support of the respondent submissions. It has has been stated in the affidavit that the accused-respondent is an old man of 65 years of age and is suffering from ill health. Owing to his illness he has not been able to attend to his business for the last three years and is not in a position to move. Placing reliance on the facts mentioned in the affidavit, the learned counsel for the respondent has prayed that a lenient view in the matter of sentence may be taken and the respondent may be sentenced to pay a normal fine only. He has placed reliance on Swami Din vs. State of Uttar Pradesh (6), The Public Prosecutor vs. Akula Bangaramma (7), Santa Singh vs. The State of Punjab (8), and Municipal Council, Jaipur vs. Kanhaiyalal (9 ). ;