Mangaldas Raghavji Ruparel & ANR Vs.
The State of Maharashtra & ANR  INSC 26 (8 February 1965)
08/02/1965 MUDHOLKAR, J.R.
CITATION: 1966 AIR 128 1965 SCR (2) 894
R 1970 SC 318 (5) R 1970 SC 366 (5) F 1971
SC1725 (15) RF 1980 SC 538 (11)
Prevention of Food Adulteration Act (37 of
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.
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,  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
The transaction in the instant can would
amount to sale in spite 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.,
 3 S.C.R. 324, M. Y.
Joshi v. M. U. Shimpi,  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,  1 Cr.
L.J. 652, overruled.
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
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
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
(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
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.  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
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
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.
 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
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 and
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
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
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
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)  S.C.R. 322.
(2)  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
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
(1)  1 Crl. L.J. 152.
(2)  3 S.C.R. 324.
(3)  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
"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 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)  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.