PETITIONER: MANGALDAS RAGHAVJI RUPAREL & ANR. Vs. RESPONDENT: THE STATE OF MAHARASHTRA & ANR. DATE OF JUDGMENT: 08/02/1965 BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M. CITATION: 1966 AIR 128 1965 SCR (2) 894 CITATOR INFO : R 1970 SC 318 (5) R 1970 SC 366 (5) F 1971 SC1725 (15) RF 1980 SC 538 (11) ACT: Prevention of Food Adulteration Act (37 of 1954) ss. 2(xiii), 7(v), 10, 11, 13(5), 16(1) (a) and 19(1)-Public Analyst-Report of-If Sufficient for conviction when analyst not examined-Mens rea-If prosecution should establish- Compulsory sale of sample to Food Inspector-if "sale" under Act. HEADNOTE: The three appellants were a wholesale dealer in spices, a dealer in groceries, and his servant respectively. The second appellant purchased a bag of turmeric powder from the first and the third appellant took delivery of it on behalf of the second appellant, his master. Immediately after it was taken delivery of, the food inspector purchased from the third appellant some turmeric powder contained in that bag for the purpose of analysis, and after issuing notice to the third appellant as required by s. 1 1 of the Prevention of Food Adulteration Act, 1954, sent a portion of the powder purchased to the public analyst, who gave a report that it was adulterated food. The three appellants were then prosecuted under ss. 6(1) (a) read with s. 7(v) of the Act and convicted by the Magistrate. The conviction was confirmed by the High Court. In the appeal to this Court it was contended that, (i) the report of the public analyst, by itself was not sufficient to sustain the conviction, and the public analyst should have been called as a witness, (ii) the report of the public analyst could not be used as evidence against a person who was not given notice under s. 11 of the Act, (iii) the first appellant could not be convicted without establishing that he had the mens rea, and (iv) the taking of the sample under s. 10 by a food inspector, was not a "sale" within the meaning of s. 2(xiii) and therefore s. 7(v) of the Act was not infringed. HELD : (i) Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit. The Court could therefore legally act solely on the basis of the report and the prosecution Could not fail on the ground that the public analyst was not called as a witness. If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate steps. [900 F; 902 C-D] (ii)The law requires notice under s. 11 to be given only to the person from whom the sample was taken and none else. If that formality had been complied with and the report of the analyst is placed on record at the trial, it would be admissible against all the accused persons. [902 H-; 903 C] (iii)The word "vendor" in s. 19(1) means the person who had add the article of food which was alleged to be adulterated. At one stage, the first appellant was the vendor of the turmeric powder. Since the section deprives the vendor of adulterated food of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him- the burden of showing that he had no mens rea to commit the offence would be upon the first appellant. [904 B-D] State of Maharashtra v. Mayer Hans George, [1965] 1 S.C.R., 123 followed. 895 (iv)The definition of "sale" in s. 2(xiii) of the Act, specificallY includes within its ambit a &,de for analysis. The transaction in the instant can would amount to sale inspite of the fact that where a person is required by the food inspector to sell him a sample of a commodity, there is an element of compulsion under s. 10 of the Act. L906 H] Sarjo Prasad v. State of U.P., [1961] 3 S.C.R. 324, M. Y. Joshi v. M. U. Shimpi, [1961] 3 S.C.R. 986 and State of Uttar Pradesh v. Kartar Singh, A.I.R. 1964 S.C. 1135, referred to. Food Inspector v. Parameswaran, [1962] 1 Cr. L.J. 652, overruled. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 113 of
1963.
Appeals by special leave from the judgment and order dated
April 19, 1963, of the Bombay High Court in Criminal Appeal
No. 988 of 1962.
V.B. Ganatra and I. N. Shroff, for the appellant (Cr. A.
No. 57 of 1963).
Frank Anthony, E. C. Agarwala and P. C. Agrawal, for the
appellant (in Cr. A. No. 113 of 1963).
S.G. Patwardhan and B. R. G. K. Achar, for the respondent
State (in both the appeals).
The Judgment of the Court was delivered by
Mudholkar, J. This appeal and Criminal appeal No. 113/63
arise out of a joint trial of the appellant Mangaldas and
the two appellants Daryanomal and Kodumal in Crl. A. 113 of
1963 for the contravention of s. 7(v) of The Prevention of
Food Adulteration Act, 1954 (hereinafter referred to as the
Act) in which they were convicted and sentenced tinder s.
16(1) (a) of the Act. The appellants Mangaldas and
Daryanomal were each sentenced under S. 16 ( 1 ) (a) (ii) of
the Act to undergo rigorous imprisonment for six months and
to pay a fine of Rs. 500 while the other appellant was
sentenced under sub-cl (1) to undergo imprisonment until the
rising of the Court and to pay a fine of Rs. 200. On appeal
they were all acquitted by the Additional Sessions Judge,
Nasik. The State preferred an appeal before the High Court
of Bombay which allowed it and restored the sentences passed
on Mangaldas. and Daryanomal by the Judicial Magistrate but
imposed only a fine of Rs. 200 on Kodumal. They have come
up to this Court by special leave.
The admitted facts are these. Mangaldas is a wholesale
dealer, Commission agent, exporter, supplier and
manufacturer of various kinds of spices doing business at
Bombay. Dayanomal is engaged
896
in grocery business at Nasik while Kodumal is his servant.
On November 7, 1960 Daryanomal purchased from Mangaldas a
bag of haldi (turmeric powder) weighing 75 kg. which was
despatched by the latter through a public carrier. It was
received on behalf of Daryanomal at 11.45 A.M. on November
18, 1960 by Kodumal at the octroi post of Nasik
Municipality. After he paid the octroi duty to the Nasik
Municipality and took delivery of the bag the Food Inspector
Burud purchased from him 12 oz. of turmeric powder contained
in that bag for the purpose of analysis. The procedure in
this regard which is laid down in S. 11 of the Act was
:followed by Burud. A portion of the turmeric powder was
sent to the Public Analyst at Poona, whose report Ex. 16,
shows that the turmeric powder was adulterated food within
the meaning of s. 2 (1) of the Act. Thereupon Burud, after
obtaining the sanction of the Officer of Health of the
Municipality, filed (a complaint against the appellants in
the court of the Judicial Magistrate for offences under s.
16(1) (a) read with s. 7(v) of the Act. At the trial
Kodumal admitted that he had taken delivery of the bag at
the octroi post and sold 12 oz. of turmeric powder to the
Food Inspector and that he had also received a notice from
him under s. 11 of the Act. It was contended at the trial
on behalf of Daryanomal that actually no delivery had been
taken but that point was not pressed before the High Court.
While Mangaldas admitted that he had sold and despatched the
bag containing turmeric powder he contended that what was
sent was not turmeric powder used for human consumption but
was “Bhandara” which is used for religious purposes or for
applying to the forehead. This contention was rejected by
the Judicial Magistrate as well as by the High Court but was
not considered by the Additional Sessions Judge. It was
sought to be challenged before us by Mr. Ganatra on his
behalf but as the finding of the High Court on the point is
upon a question of fact we did not permit him to challenge
it.
We will take Mangaldas’s case first. Mr. Ganatra had made
an application on his behalf for raising a number of new
points, including some alleged to raise constitutional
questions. At the hearing, however, he did not seek to urge
any question involving the interpretation of the
Constitution. The new points which he ‘Sought to urge were:
(1) that the appellant was not questioned
regarding the report of the Public Analyst;
(2) the joint trial of Mangaldas with the
other two appellants was illegal; and
(3) that the sanction was not valid.
897
As regards the first of these points his contention is that
he had raised it before the High Court also though it has
not referred to in its judgment. The High Court has stated
clearly that all the points raised in argument before it
were considered by it. In the face of this statement we
cannot allow the point to be urged before US.
As regards the second point it is sufficient to say that it
was not raised before the Magistrate. Section 537(b) of the
Code of Criminal Procedure provides that no judgment,
conviction or sentence can be held to be vitiated by reason
of misjoinder of parties unless prejudice has resulted to
the accused thereby. For determining whether failure of
justice has resulted the Court is required by the
Explanation to s. 537 to have regard to the fact that the
objection had not been raised at the trial. Unless it is so
raised it would be legitimate to presume that the accused
apprehended no prejudice. The point thus fails.
As regards the alleged invalidity of sanction it is
sufficient to point out that the contention was not raised
in the High Court or earlier. We, therefore, decline to
consider it.
Mr. Ganatra urged that the trial court had no jurisdiction
to try the appellant as the appellant had not committed any
offence within its jurisdiction. With regard to this point
the High Court has held that Mangaldas had distributed the
commodity within the jurisdiction of the Magistrate and,
therefore, the Magistrate had jurisdiction to try him.
Apart from that we may point out that under S. 182 of the
Code of Criminal Procedure where it is uncertain in which of
the local areas an offence was committed or where the
offence is committed partly in one local area and partly in
another or where an offence is a continuing one and
continues to be committed in more local areas than one or
where it consists of several acts done in different local
areas, it may be inquired into or tried by a Court having
jurisdiction over any of such local areas. Since Mangaldas
actually sent the bag from Bombay to Nasik he could be said
to have committed the offence partly in Bombay from where it
was despatched and partly in Nasik to which place it had
been consigned. Apart from that, the mere fact that pro-
ceedings were taken in a wrong place would not vitiate the
trial unless it appears that this has occasioned a failure
of justice (see S. 531, Cr. P. C.). Mr. Ganatra, however,
says that there was failure of justice in this case because
had Mangaldas been prosecuted at Bombay, one of the samples
taken from the bag of turmeric powder would have been sent
to the Public Analyst at Bombay and not to the Public
Analyst at Poona. We are wholly
898
unable to appreciate how this could make any difference
whatsoever. Apart from that since the samples were actually
taken at Nasik the one meant for analysis had, according to
an administrative order of the Government, to be sent to the
Public Analyst at Poona. Therefore, even if Mangaldas had
been tried at Bombay tile report of the Public Analyst at
Poona could be put in evidence. There is nothing in the Act
which prevents that from being done.
In view of the fact that the finding of the Judicial
Magistrate and the High Court that the turmeric powder had
been adulterated was based solely on the report of the
Public Analyst, Mr. Ganatra raised three contentions before
us. One is that such evidence is not by itself sufficient
for the conviction of an accused person; the second is that
the Public Analyst was not called as a witness in the case
and the third is that unless notice is given to an accused
person under s. 11 of the Act after a sample had been taken
of the allegedly adulterated commodity the report of the
Public Analyst concerning that commodity is not admissible
against him.
In support of the contention that the conviction could not
be based solely upon the report of the Public Analyst that
the turmeric power was adulterated. Mr. Ganatra relied upon
the decisions in State v. Bhausa Hanmatsa Patwar(1) and City
Corporation Trivandrum v. Antony (2) . The first of these is
a case under the Bombay Prohibition Act, 1949 (Bombay XXV of
1949). In that case a large quantity of angurasava, partly
contained in two barrels and partly in three boxes
containing 109 bottles was recovered from the house of the
accused person. Samples taken from the barrels and boxes
were sent for analysis to the Chemical Analyser and to the
Principal, Podar Medical College, Bombay. The report of the
former showed that three out of the four samples contained
alcohol in varying degrees. Thereupon the accused was
Prosecuted for offence-, under ss. 65, 66(b) and 83(1) of
the Bombay Prohibition Act. His defence was that he
manufactured a medical preparation called angurasava which
contained Ayurvedic ingredients which generated alcohol.
According to him, therefore, what was seized from him was
outside the orbit of the Bombay Prohibition Act. Partly
relying upon the certificate issued by the Principal of
Podar Medical College, the trying Magistrate acquitted the
accused holding that the Prosecution failed to discharge the
onus of proof that angurasava was prohibited liquor. On
appeal by the State of Maharashtra before the High Court
reliance was placed upon the certificates issued by the
Chemical Analyser as well as by the Principal, Podar Medical
College. The certificate of
(1) [ 1962] Bom. L.R. 303.
(2) I.L.R. [1962] 1 Kerala 430.
899
the former showed that three out of the four samples
contained “2.2 and 6 per cent v/v of ethyl alcohol
respectively and they contain yeast. No alkaloidal
ingredient or metallic poison was detected in them. The
certificate of the Principal of the Podar Medical College is
as follows
“Formula supplied is found to be similar to
that given in the Ayurvedic Books. There are
no easy methods to find out the herbal drugs
dissolved in a liquid. It is not possible for
us, to find out the herbal drugs used in the
above liquids. The colour and smell of the
samples supplied is not identical with the
colour and smell of fermented Ayurvedic
preparation like, Assam and Arishta. Hence it
is very difficult to give any definite opinion
in the matter.”
On behalf of the accused it was urged that by virtue of sub-
s. (ii) of s. 24(a) of the Prohibition Act, the provisions
of ss. 12 and 13 thereof do not apply to any medicinal
preparation containing alcohol which is unfit for use as
intoxicating liquor. Section 12 of the Act prohibits the
manufacture and possession of liquor and s. 16 prohibits the
possession of materials for the manufacture of liquor. It
was, however, contended on behalf of the State that once it
is established that what was seized from the possession of
the accused contains alcohol the burden of proving that what
was seized, falls under s. 24(a) was on the accused person.
The High Court, however, held that the burden of
establishing that a particular article does not fall under
s. 24(a) rests on the prosecution. In so far as the
certificate of the Chemical Analyser was concerned the High
Court observed as follows :
“It is beyond controversy that, normally, in
order that a certificate could be received in
evidence, the person who has issued the
certificate must be called and examined as a
witness before the Court. A certificate is
nothing more than a mere opinion of the person
who purports to have issued the certificate,
and opinion is not evidence until the person
who has given the particular opinion is
brought before the Court and is subjected to
the test of cross-examination.”
It will thus be clear that the High Court did not hold that
the certificate was by itself insufficient in law to.
sustain the conviction and indeed it could not well have
said so in view of the provisions of s. 510, Cr.P.C. What
the High Court seems to have felt was that in circumstances
like those present in the case
900
before it, a court may be justified in not acting upon a
certificate of the Chemical Analyser unless that person was
examined as a witness in the case. Sub-section (1) of s.
510 permits the use of the certificate of a Chemical
Examiner as evidence in any enquiry or trial or other
proceeding under the Code and sub-s. (2) thereof empowers
the court to summon and examine the Chemical Examiner if it
thinks fit and requires it to examine him as a witness upon
an application either by the prosecution or the accused in
this regard. It would, therefore, not be correct to say
that where the provisions of sub-s. (2) of s. 5 1 0 have not
been availed of, the report of a Chemical Examiner is
rendered inadmissible or is even to be treated as having no
weight. Whatever that may be, we are concerned in this case
not with the report of a Chemical Examiner but with that of
a Public Analyst. In so far as the report of the Public
Analyst is concerned we have the provisions of s. 13 of the
Act. Sub-section (5) of that Section provides as follows :
“Any document purporting to be a report signed
by a public analyst, unless it has been
superseded under sub-section (3), or any
document purporting to be a certificate signed
by the Director of the Central Food
Laboratory, may be used as evidence of the
facts stated therein in any proceeding under
this Act or under sections 272 to 276 of the
Indian Penal Code :
Provided that any document purporting to be a
certificate signed by the Director of the
Central Food Laboratory shall be final and
conclusive evidence of the facts stated
therein.”
This provision clearly makes the report admissible in
evidence. What value is to be attached to such report must
necessarily be for the Court of fact which has to consider
it. Sub-section (2) of s. 13 gives an opportunity to the
accused vendor or the complainant on payment of the
prescribed fee to make an application to the court for
sending a sample of the allegedly adulterated commodity
taken under s. 1 1 of the Act to the Director of Central
Food Laboratory for a certificate. The certificate issued
by the Director would then supersede the report given by the
Public Analyst. This certificate is not only made
admissible in evidence under subs. (5) but is given finality
of the facts contained therein by the proviso to that sub-
section. It is true that the certificate of the Public
Analyst is not made conclusive but this only means that the
court of fact is to act on the certificate or not, as it
thinks fit.
901
Sub-section (5) of s. 13 of the Act came for consideration
in Antony’s case(1) upon which the State relied. There the
question was whether a sample of buffalo’s milk taken by the
Food Inspector was adulterated or not. The Public Analyst
to whom it was sent submitted the following report :
“I further certify that I have analysed the
aforementioned sample and declare the result
of my analysis to be as follows :
Solids-not-fat 9.00 per cent. Fat 5.4 per cent. Pressing point (Hortvet's method) 0.49 degree C
and am of the opinion that the said sample
contains not less than seven per cent (7%) of
added water as calculated from the freezing
point (Hortvet’s method) and is therefore
adulterated.”
The Magistrate who tried the accused persons
acquitted them on the ground that it was not
established that the milk was adulterated.
Before the High Court it was contended that
the certificate was sufficient to prove that
water had been added to the milk and reliance
was placed upon the provisions of s. 13(5) of
the Act. The learned Judge who heard the
appeal observed that this provision only says
that the certificate may be used as evidence
but does not say anything as to the weight to
be attached to the report. ‘Me learned Judge
then proceeded to point out what according to
him should be the contents of such report and
said:
“In this case the court is not told what the
Hortvet’s test is, what is the freezing point
of pure milk and how the calculation has been
made to find out whether water has been added.
I cannot, therefore, say that the Magistrate
was bound to be satisfied on a certificate of
this kind, which contains only a reference to
some test and a finding that water has been
added. The prosecution could have examined
the Analyst as a witness on their side. The
learned Magistrate also could very well have
summoned and examined the Public Analyst, but
whatever that might be, I am not prepared to
say that the finding of the Magistrate that
the case has not been satisfactorily proved is
one which could not reasonably have been
reached by the learned Magistrate and
(1) I.L.R. [1962] 1 Kerala 430.
902
that the acquittal is wrong and calls for
interferences” (p. 436)
All that we would like to say is that it should not have
been difficult for the learned Judge to satisfy himself by
reference to standard books as to what ‘Hortvet’s method is
and what the freezing point of milk is. We fail to see the
necessity of stating in the report as to how the
calculations have been made by the Public Analyst. Apart
from that it is clear that this decision does not support
the contention of learned counsel that a court of fact could
not legally act solely on the basis of the report of, the
Public Analyst.
As regards the failure to examine the Public Analyst as a
witness in the case no blame can be laid on the prosecution.
The report of the Public Analyst was there nd if either the
court or the appellant wanted him to be examined as a
witness appropriate steps would have been taken. The
prosecution cannot fail solely on the ground that the Public
Analyst had not been called in the case. Mr. Ganatra then
contended that the report does not contain adequate data.
We have seen the report for ourselves and quite apart from
the fact that it was not challenged by any of the appellants
as inadequate when it was put into evidence, we are
satisfied that it contains the Necessary data in support of
the conclusion that the sample of turmeric powder examined
by him showed adulteration. The report sets out the result
of the analysis and of the tests performed in the public
health laboratory. Two out of the three tests and the
microscopic examination revealed adulteration of the
turmeric powder. The microscopic examination showed the
presence of pollen stalks. This could well be regarded as
adequate to satisfy the mind of a Judge or Magistrate
dealing with the facts. Mr. Ganatra then said that the
report shows that the analysis was not made by the Public
Analyst himself but by someone else. What the report says
is “I further certify that the have caused to be analysed
the aforementioned sample and declare the result of the
analysis to be as follows.” This would show that what was
done was done under the supervision of the Public Analyst
and that should be regarded as quite sufficient.
Now as to the necessity of notice under s. 11 of the Act.
Mr. Ganatra said that the report is admissible only against
a person to whom notice is given tinder s. 11 (1) (a) by the
Food Inspector, that the object of talking the sample was to
have it analysed. The law requires notice to be given only
to the person from whom the sample is taken and to none
else. The object of
903
this provision is clearly to apprise the person from whom
the sample is taken of the intention of the Food Inspector
so that he may know that he will have the right to obtain
from the Food Inspector a part of the commodity taken by way
of sample by the Food Inspector. This is with a view to
prevent a plea from being raised that the sample sent to the
analyst was of a commodity different from the one from which
the Food Inspector has taken a sample. What bearing this
provision has on the admissibility of the evidence of the
Public Analyst is difficult to appreciate. Once the report
of the Analyst is placed on record at the trial it is
admissible against all the accused persons. What it shows
in the present case is that the commodity of which Kodumal
had taken possession contained turmeric powder which was
adulterated. Therefore, since it is admitted and also
established that the bag of turmeric powder from which
sample was taken had been despatched by the appellant
Mangaldas, the report of the Public Analyst could be
properly used against him in regard to the quality or
composition of the commodity.
Mr. Ganatra then said that it was necessary to establish
that the appellant had the mens rea to commit the offence.
In support of his contention Mr. Ganatra pointed out that S.
19(1) of the Act deprives only the vendor of the right to
contend that he was ignorant of the nature, substance or
quality of the food sold by him and not a person in
Mangaldas’s position. According to him, the word vendor
here means the person from whom the sample was actually
taken by the Food Inspector. We cannot accept the
contention. The word “Vendor”, though not defined in the
Act, would obviously mean the person who had sold the
article of food which is alleged to be adulterated.
Mangaldas having sold the bag to Daryanomal, was the
original vendor and, therefore, though the sample was taken
from Kodumal he will equally be barred from saying that he
was not aware of the nature, substance or quality of the
turmeric powder in question. Moreover, it is curious that a
person who sought to get out by saying that what he had
actually sent was not an article of food but something else
should now want to say that he did not know that though it
was an article of food it was adulterated.
We may now refer to two decisions upon which learned counsel
relied in support of his contention. The first is Municipal
Board, Bareilly v. Ram Gopal(1). There the question was
whether a shopkeeper who allowed the owner of adulterated
ghee to sell on his premises was entitled to say in defence
that he was ignorant of,
(1) 42 Crr. L.J. 243.
up./65-12
904
the quality of ghee which its owner was offering for sale.
It was held by the Allahabad High Court that he was so
entitled. We fail to appreciate how this case is of any
assistance in the matter before us. For, here, the turmeric
powder admittedly once belonged to Mangaldas and was in fact
sold by him to Daryanomal. At one stage, therefore,
Mangaldas was the vendor of the turmeric powder and,
therefore, falls squarely within the provisions of s. 13 (1)
of the Act. The second case is Ravula Hariprasada Rao v.
The State(1). What was held in that case is that unless a
statute either clearly or by necessary implication rules out
mens rea as a constituent part of the crime, a person should
not be found guilty of an offence against the criminal law
unless he has got a guilty mind. The proposition there
stated is well-established. Here s. 19(1) of the Act
clearly deprives the vendor of the defence of merely
alleging that he was ignorant of the nature, substance or
quality of the article of food sold by him and this places
upon him the burden of showing that he had no mens rea to
commit an offence under s. 17(1) of the Act. In a recent
case-State of Maharashtra v. Mayer Hans George(2)-this Court
had to consider the necessity of proving mens rea in regard
to an offence under s. 23 (1) (a) of the Foreign Exchange
Regulation Act (7 of 1947) read with a notification dated
November 8, 1962 of the Reserve Bank of India. The
majority of Judges constituting the Bench held that on
the language of S. 8 (1 ) read with s. 24 (1) of the above
Act, the burden was upon the accused of proving that he had
the requisite permission of the Reserve Bank of India to
bring gold into India and that there was no scope for the
invocation of the rule that besides the mere act of
voluntarily bringing gold into India any further mental
condition or mens rea is postulated as necessary to
constitute an offence referred to in s. 23(1-A) of the above
Act. We are, therefore, unable to accept the contention of
learned counsel.
The only other point which falls for consideration is the
one raised by Mr. Anthony in the other appeal. Mr. Ganatra
did not address any separate argument on this point but he
adopted what was said by Mr. Anthony. That point is whether
the transaction in question i.e., taking of a sample by a
Food Inspector under s. 11 amounts to a “sale” and,
therefore, whether the person connected with the transaction
could be said to have infringed s. 7(v) of the Act. Mr.
Anthony’s contention is that for a transaction to be a sale
it must be consensus sale. Where a person is required by
the Food Inspector to sell to him a sample of a commodity
there is an element of compulsion and, therefore, it cannot
be
(1) [1951] S.C.R. 322.
(2) [1965] 1 S.C.R. 123.
905
regarded as sale. In support of the contention he has
placed reliance upon the decision in Food Inspector v.
Parameswaran(1) Raman Nayar J., who decided the case has
observed therein:
“As a sale is voluntary transaction and (sic)
a seizure or compulsory acquisition in
exercise of statutory power is not a sale
within the ordinary sense of that word. Nor
does the definition of ‘sale in s. 2(xiii) as
including a sale of good for analysis make it
one, for, the first requisite even under the
definition is that there must be a sale. The
definition apparently by way of abundant
caution, merely states that the word ‘sale’
means all manner of sales 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 all
that the definition means in relation to the
question we are considering is that a We of
food is nonetheless a sale, by reason of the
fact that it was not for consumption or use,
but only for analysis.
In my view when a food inspector obtains a
sample under s. 10 of the Act there is no
sale. of course, it is possible for a Food
Inspector just like any other human being to
effect a purchase in the ordinary course, and
the transaction would be a sale
notwithstanding that the purchaser is a Food
Inspector and that his purpose is to have the
article analysed with a view to prosecution.
But, if he obtains the article not by a
voluntary exchange for a price but in exercise
of his statutory power under s. 10 of the Act
the transaction is not a sale notwithstanding
that in obedience to sub-s. (3) of s. 10 its
cost and I think the sub-section advisedly
uses the long phrase, ‘its cost calculated at
the rate at which the article is usually sold
to the public’ instead of the word ‘ price is
paid to the person from whom the sample is
taken.”
In Sarjoo Prasad v. The State of Uttar Pradesh (2); M. V.
Joshi v. M. U. Shimpi(3) and The State of Uttar Pradesh v.
Kartar Singh (4) this Court has treated a transaction of the
kind we have here as a sale. No doubt, no argument was
addressed in any of these cases before this Court similar to
the one advanced by Mr. Anthony in this case and as advanced
in Parameswaran’s case(1).
(1) [1962] 1 Crl. L.J. 152.
(2) [1961] 3 S.C.R. 324.
(3) [1961] A S.C.R. 986.
(4) A.T.R. 1964 S. C. 1135.
906
A view contrary to the one taken in Parameswaran’s case(1)
was taken in State v. Amritlal Bhogilal(1) and Public
Prosecutor v. Dada Rail Ebrahim Helari(3). In both these
cases the sale was to a sanitary inspector who had purchased
the commodity from the vendor for the purpose of analysis.
It was contended in these cases that the transaction was not
of a voluntary nature and, therefore, did not amount to a
sale. This contention was rejected. In Amritlal Bhogilal’s
case(1) the learned Judges held:
“There is also no reason why in such a case
the article should not be held to have been
sold to the inspector within the meaning of s.
4 (1) (a). He has paid for the article
purchased by him like any other customer.
Moreover, s. 11 itself uses the words
“purchase’ and ‘ sell’ in regard to the
inspectors obtaining an article for the
purpose of analysis and paying the price for
it. It is, therefore, clear that the
Legislature wanted such a transaction to be
regarded as a sale for the purposes of the
Act.” (p. 463)
The learned Judges in taking this view relied upon several
reported decisions of that Court. In Dada Haji Ebrahim
Helari’s case(3) which was under the Madras Prevention of
Adulteration Act, (3 of 1918) Ramaswami J., dissented from
the view taken by Horwill J., in In re Ballamkonda
Kankayya(4) and following the decisions in Public Prosecutor
v. Narayan Singh(5) and Public Prosecutor v.
Ramachandrayya(6) held the transaction by which a sample of
an article of food was obtained by a sanitary inspector from
the vendor amounts to a sale even though that man was bound
to give the sample on tender of the price thereof. But Mr.
Anthony contends that a contract must be consensual and that
this implies that both the parties to it must act
voluntarily. No doubt a contract comes into existence by
the acceptance of a proposal made by one person to another
by that other person. That other person is not bound to
accept the proposal but it may not necessarily follow that
where that other person had no choice but to accept the
proposal the transaction would never amount to a contract.
Apart from this we need not, however, consider this argument
because throughout the case was argued on the footing that
the transaction was a ‘sale’. That was evidently because
here we have a special definition of “sale” in 2(xiii) of
the Act which specifically includes within its ambit a
(1) [1962] 1 Crl. L. J. 152.
(2) L.L.R. 1954 Bom. 459.
(3) A.I.R. 1953 Mad. 241.
(4) A.I.R. 1942 Mad. 609.
(5) 1944 M.W.N. Crl. 131.
(6) 1948 MW.N. Cri. 32.
907
sale for analysis. It is, therefore, difficult to
appreciate the reasons which led Raman Nayar J., to hold
that a transaction like the present does not amount to a
sale. We are, therefore, unable to accept that view. In
the result we uphold the conviction and sentence passed on
each of the appellants and dismiss these appeals.
Appeals dismissed.
908