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1951 DIGILAW 117 (KER)

Mohammed v. State

1951-10-11

VITHAYATHIL

body1951
Judgment :- 1. The accused in C.C. No. 244/1124 on the file of the 2nd Class Magistrate of Cochin are the revision petitioners in this case. The accused who are two in number were tried for offences punishable under S.4(1) read with Rr. 27 and 28 of the Cochin Prevention of Food Adulteration Act (XIV of 1109). The prosecution case is that the 1st accused who is the owner of shop No. 140 in the Mattancheri town offered for sale in his shop adulterated ghee containing 15% of pure ghee and 85% of fat. The 2nd accused who is an employee of the 1st accused sold such ghee to P.W.1 the Sanitary Inspector of Mattancherri on 28.3.1124. The complaint was filed by the Sanitary Inspector as per order of the Municipal Commissioner of Mattancherry who is the "Local Food Inspector" for the town. Both the accused were found guilty and the 1st accused was sentenced to pay a fine of Rs. 85 and in default to undergo simple imprisonment for one and a half months. The 2nd accused was sentenced to pay a fine of Rs. 50 and in default to undergo simple imprisonment for one month. Both the accused appealed from the decision before the District Magistrate of Trichur who confirmed the conviction and sentence. 2. The two points urged in this Revision Petition are that the condition laid down in S.17 of Act XIV of 1109 for instituting prosecution under the Act is not satisfied in this case and that the 2nd accused has not in any case committed an offence as the delivering of ghee to the Sanitary Inspector under S.13 of the Act was not a voluntary sale and hence not an offence under the Act. 3. As for the first point it is argued that P.W.1 the Sanitary Inspector who filed the complaint in this case is not one competent to file it under S.17 of the Act. S.17 reads thus:- "No prosecution under this Act shall be instituted except on the complaint of the purchaser or of the local Food Inspector or under sanction of the Government." S.3(1) of the Act provides that the local Food Inspector may delegate his powers and duties under the Act to such persons and in such manner as may be prescribed. S.17 reads thus:- "No prosecution under this Act shall be instituted except on the complaint of the purchaser or of the local Food Inspector or under sanction of the Government." S.3(1) of the Act provides that the local Food Inspector may delegate his powers and duties under the Act to such persons and in such manner as may be prescribed. It is argued for the prosecution that the local Food Inspector namely the Municipal Commissioner has delegated his power to file the complaint in this case to P.W. 1, the Sanitary Inspector. It is also contended that Pw.1 is the purchaser of ghee. The revision petitioners' case is that PW.1 is not a purchaser of ghee and that the authority to prefer a complaint under the Act is not one that can be delegated by the local Food Inspector to any other person. 4. With regard to the question whether PW.1 is a purchaser coming within the purview of S.17 the case of the accused is that the delivering of a sample of ghee to the Sanitary Inspector under S.13 of the Act is not a sale and that therefore the Sanitary Inspector cannot be said to be a purchaser of such ghee. S.13 reads thus: "13(1). The local Food Inspector may purchase a sample of any article of food from any person exposing such article for sale or from any person who is in the course of delivering or preparing to deliver it to a purchaser or consignee and may submit it to be analysed by the Public Analyist appointed for the area within which such sample has been procured, (2) Every such person who refuses to sell such sample to the local Food Inspector or any person duly authorised by him at the price at which he usually sells the articles shall be punished with fine which may extend to Rs. 100/2. 5. It is seen from the evidence that the Sanitary Inspector went to the shop of the 1st accused in his official capacity and demanded a sample of the ghee that was offered for sale in the shop. The 2nd accused who was in the shop was bound to sell him the ghee under S.13(2) of the Act. If he refused to sell the ghee he would be liable to be punished with fine which may extend to Rs. 100/-. The 2nd accused who was in the shop was bound to sell him the ghee under S.13(2) of the Act. If he refused to sell the ghee he would be liable to be punished with fine which may extend to Rs. 100/-. In the circumstances, it is argued that the delivering of the sample of the ghee to Pw.1 cannot be said to be a sale although Pw.1 paid price for the same. The question for consideration is whether PW.1 can be said to be a purchaser of the ghee even though the sale of the ghee to him was not a voluntary sale. Apart from the question whether the sale in such circumstances would constitute an offence or not there is no reason to hold that the transaction is not a sale. The words used in S.13 are "purchase" and "sale". There is nothing in S.17 to indicate that the word "purchaser" used in that section is limited to the case of a purchaser under a voluntary sale. The delivering of an article for price even when the seller is compelled to deliver the same is sale. Under the Sale of Goods Act a sale of goods takes place when the seller transfers the property in the goods to the buyer for a price. In this case there was delivery of the article to PW.1 for a price paid by him. Therefore the transaction is nothing but a sale, and PW.1 is a purchaser coming within the purview of S.17. In this view of the matter it is not necessary to consider the question whether the authority to file a complaint under the Act can be delegated by the local Food Inspector to another person, and to canvass the correctness of the decision in 38 Cochin 519 (Hajee Habeeb Peer Mohammed v. Mattancherri Municipality) relied on by the prosecution, in which it was held that the local Food Inspector could validly delegate the power or duty vested in him under S.17 to his subordinate. It may however be observed that S.17 only lays down a condition for instituting prosecution under the Act. One of the conditions is that complaint should be by the local Food Inspector. It is doubtful whether this is a power or duty that can be delegated under S.3(1). It may however be observed that S.17 only lays down a condition for instituting prosecution under the Act. One of the conditions is that complaint should be by the local Food Inspector. It is doubtful whether this is a power or duty that can be delegated under S.3(1). But as it is not necessary to decide the question in this case, in view of my finding that Pw.1 is a purchaser competent to file a complaint under the Act, I do not propose to say anything more on the point. 6. With regard to the 2nd point, namely that the 2nd accused cannot in any case be said to have committed an offence by delivering the sample of ghee to PW.1 when demanded by the latter under S.13 of the Act, I think there is some force in the contention. The offence with which the 2nd accused was charged was the sale of adulterated ghee to PW.1. Even though the delivering of an article of food to the local Food Inspector or to his subordinate under S.13 is a sale, I do not think that such sale will constitute an offence under the Act. Under sub-s. (2) of S.13 any person who refuses to sell the sample is liable to be punished. Therefore the 2nd accused was bound in law to sell the article to PW.1. Under S.4(i)(a) of the Act the sale of an article of food will be an offence only when the food sold is not of the nature, substance or quality of the article demanded by the purchaser. When a sample of the article is demanded by the local Food Inspector or his subordinate under S.13 it is the article that is actually offered for sale that is demanded by him. The sale of such article cannot constitute an offence under S.4(1) (a). It is only when the purchaser demands an article of a particular nature, substance or quality and an article of a different nature, substance or quality is sold to him that an offence is committed under the Act. The sale of such article cannot constitute an offence under S.4(1) (a). It is only when the purchaser demands an article of a particular nature, substance or quality and an article of a different nature, substance or quality is sold to him that an offence is committed under the Act. In A.I.R. 1942 Madras 609 (In re Bellembonda Kanakayya) it was held that the parting with an article of food when it was demanded by the Sanitary Inspector in the exercise of his powers under S.14 of the Madras Prevention of Adulteration Act, (111 of 1918) (corresponding to S.13 of the Cochin Act) does not amount to a sale within S.5 of that Act (S.4 of the Cochin Act.) In that case A was the owner of a shop where he kept and offered ghee for sale. B was working in that shop and his duty was to sell the ghee to customers. The Sanitary Inspector demanded a sample of the ghee from B exercising his powers under S.14. The sample was found to be adulterated ghee. It was held that A was guilty of the offence of offering adulterated ghee for sale but that B was not guilty of the offence of selling such ghee to the Sanitary Inspector. This decision was based on an earlier decision of the Madras High Court reported in AIR 1938 Mad. 541 (Public Prosecutor v. Srinivasa Rao and another). The decision AIR 1942 Mad. 609 was distinguished in a subsequent decision of the Madras High Court reported in AIR 1944 Mad. 236 (Public Prosecutor v. Narayana Singh). In that case the Sanitary Inspector who found the accused offering milk for sale purchased from him milk for two annas with a view to test it. It was held that as the evidence in the case showed that the Sanitary Inspector purchased the milk for price and that it was after purchasing the same that he noticed that it was adulterated, the sale to the Sanitary Inspector amounted to a sale within S.5 of the Madras Act. It was also observed that in the case reported in A.I.R. 1942 Madras 609 there was no proof of sale and that the evidence in that case disclosed that the Sanitary Inspector seized a part of the milk and sent it to the analyst and that therefore there was no sale of the milk. It was also observed that in the case reported in A.I.R. 1942 Madras 609 there was no proof of sale and that the evidence in that case disclosed that the Sanitary Inspector seized a part of the milk and sent it to the analyst and that therefore there was no sale of the milk. A reading of the report of the case in A.I.R. 1942 Madras 609 does not show that it was a case of seizure of ghee (not milk) by the Sanitary Inspector. It was a case in which the Sanitary Inspector demanded a sample of the ghee, under S.14 of the Madras Act as in the present case. If in this case the Sanitary Inspector did not demand a sale of the ghee under S.13 of the Cochin Act in his official capacity, but purchased it in the usual manner the position would have been different. The evidence in this case is to the effect that the Sanitary Inspector went to the shop for the purpose of taking a sample of the ghee accompanied by two Sanitary Maistries of the Municipality and that the Health Officer also was present when the sample was purchased. In the circumstances it cannot be said that the handing over of the sample by the 2nd accused to the Sanitary Inspector was a voluntary sale of the ghee coming under S.4 of the Cochin Act. 7. I am therefore of opinion that the 2nd accused has not committed any offence by delivering to P.W.1 a sample of the adulterated ghee under S.13 of the Act. The conviction of the 2nd accused is therefore quashed. The fine paid by him will be refunded. 8. There are no grounds to interfere with the decision of the lower court so far as the 1st accused is concerned and the Revision Petition is therefore dismissed so far as the 1st accused is concerned and allowed so far as the 2nd accused is concerned.