JUDGMENT 1. - This revision petition is directed against the judgment dated 29.11.76 of the learned Sessions Judge, Jhunjhunu confirming the conviction and sentence of the accused-petitioner under section 7/16 of the Prevention of Food Adulteration Act, 1951 (hereinafter referred to as the Act). The learned Chief Judicial Magistrate, Jhunjhunu had found the accused-petitioner guilty under section 7/16 of the Act and had sentenced him to undergo six months simple imprisonment and a fine of Rs. 1000/- or in default to suffer one months simple imprisonment more. The acts of this case out of which this revision arises are these. 2. The accused-petitioner was a grain dealer in the town of Jhunjhunu. In the month of September, 1972, Dhanraj (PW2), Food Inspector, Jhunjhunu visited the premises of the accused-petitioner and found that there was pure ghee 4 Kg. in a tin. The Food Inspector purchased 450 Grams Ghee for the purpose of analysis and paid its price amounting to Rs. 6-75 p. The ghee was divided into three parts and each f part was separately wrapped, corked and sealed. One sample was delivered to the accused and the other was sent to the Public Analyst for analysis. The Public Anahit on analysis found vide his report (Ex.P.5) that the sample did not conform to the prescribed standards of purity and was adulterated with fellow. After obtaining the sanction for the prosecution of the accused under S. 20 of the Act, a complaint was filed by the Food Inspector. During the examination under S. 313 Cr. P. C., the accused came out with the plan that the ghee was not meant for sale but had been purchased by him for home consumption. The accused examined witnesses in defence in support of this plea, but the learned Chief Judicial Magistrate after trial convicted and sentenced the accused, as aforesaid. 3. The main submission of the learned Advocate for the accused petitioner is that the accused was not a dealer and the ghee was only purchased by him for home consumption. Therefore, the Food Inspector, Shri Dhanraj (PW2), was not authorised under S. 10 of the Act to take a sample for analysis. Therefore, the conviction of the accused-petitioner is not in accordance with law. 4. The learned Chief Judicial Magistrate had framed point No. 1 for determination, as to whether the accused-petitioner had sold ghee. Therefore, the Food Inspector, Shri Dhanraj (PW2), was not authorised under S. 10 of the Act to take a sample for analysis. Therefore, the conviction of the accused-petitioner is not in accordance with law. 4. The learned Chief Judicial Magistrate had framed point No. 1 for determination, as to whether the accused-petitioner had sold ghee. After discussing the prosecution evidence and of the accused, the learned Chief Judicial Magistrate came to a finding in para 5 of the judgment that accused is not a dealer in ghee and the ghee from which the Food Inspector had taken the sample had been purchased by the accused-petitioner for home consumption. But, held that sale to the Food Inspector for purposes of analysis is a sale within the meaning of S. 2(13) of the Act, the accused is liable to be convicted. As the ghee was adulterated, the learned Chief Judicial Magistrate convicted the accused-petitioner. Reliance in this connection was placed on Badri v. State, AIR 1966 Raj 203 ; Mangal Dass v. State of Maharashtra, AIR 1966 S.C. 128 ; Raghunath, AIR 1969 All 231 . The learned appellate court before whom also the argument was advanced that the accused was not a dealer and as such the Food Inspector was not authorised to take the sample form him under S. 10 of the Act relying on the same authorities replied the contention. 5. The learned Advocate for the accused-petitioner in support of his submission that the accused being not a dealer in ghee cannot be convicted, because the ghee was not meant for sale but was for human consumption, has placed reliance on Municipal Corporation of Delhi v. Laxminarain Tondon, AIR 1976 S.C. 621 ; Municipal Council, Jaipur v. Mangla, 1976 Cri.L.R. (Raj) 530 , and Jaijasheena Shetti v. State of Maharashtra, 1978 Cri.L.J. 1827 . The legal question, therefore, which arises for determination is, as to whether a sale of article of food to the Food-Inspector even by a person who is not a dealer can make that person liable under section 7/16 of the Act, if the sample of article of food is found to be adulterated. 6. The powers of the Food Inspector are contained in Sec. 10 of the Act. 6. The powers of the Food Inspector are contained in Sec. 10 of the Act. under that Section, a Food Inspector has power to take sample of any article of food (i) form any person selling such article; (ii) from any person who is in the course oil conveying delivering, or preparing to deliver such article to a purchaser or consignee; (iii) from a consignee after delivery of article to him. We are not concerned with the explanation of S. 10 of the Act, as it was only inserted by Prevention of Food Adulteration (Amendment) Act (No. 34 of 1976). But, it may be added that in this explanation for the purpose of sub-clause (iii) of clause (a) of section 10 of the Act, "consignee" does not include a person who purchases and receives any article of food in his own concern. Admittedly, as per the finding of the trial court as well as of the appellate court, it can hardly be disputed that the accused-petitioner had neither stored ghee for the purpose of sale, nor is a dealer in ghee. The ghee was purchased by him for home consumption. The learned trial court has placed reliance on Mangal Dass (supra) case in arriving at a conclusion that the sale in this case to the Food Inspector for purposes of analysis is also sale within S. 2 (13) of the Act. But, a perusal of his authority will show that the provision of Sec. 10 of the Act were not considered. It was only laid down in this case by the Bench of five Judges that the Prevention of Food Adulteration Act gives a special definition of sale in S. 2(13) of the Act which specifically includes within its ambit a sale for analysis and, therefore, a sale for analysis must be regarded as sale, even if the Provisions contain an element of compulsion. The Hon'ble Judges were not call upon to decide as to whether sale by a person who is not a dealer, to the Food Inspector, will amount to a sale. They also were not called upon to decide as to whether the Food Inspector had the powers to take a sample apart from section 10 of the Act. In the case of Calicut Corporation, Madras case I was relied upon. They also were not called upon to decide as to whether the Food Inspector had the powers to take a sample apart from section 10 of the Act. In the case of Calicut Corporation, Madras case I was relied upon. But, in this case, a Bench of two Judges for the first time observed 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. It was for the first time that the powers of Food Inspector under S. 10 of the Act were considered in Tondon, (4) case a Bench of three Judges of the Hon'ble Supreme Court. After discussing the provisions of S. 10 of the Act, in para 14, it was laid down as follows : "From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale, or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms "store" and "distribute' take their colour from the context and the collection of words in which they occur in sections 7 and 16. "Storage" or "distribution" of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this Section. That this is the right construction of the terms "store" and "distribute" in Section 16(1) will be further clear from a reference to Section 10. Under that Section the Food Inspector whom the Act assigns a pivotal position for the enforcement of its provisions, is authorised to take samples of an article of food only from particular persons including in a specified course of business actively. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by any of the sub-clauses of subsection (l)(a) or sub-section (2). The three sub-clauses of sub-section 1 (a) apply only to a person who answers the description of a seller or convener or deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him." 7. The three sub-clauses of sub-section 1 (a) apply only to a person who answers the description of a seller or convener or deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him." 7. It was further observed that the expression "Store" in S. 7 means "storing for sale" and consequently storing of an adulterated article of food for purposes other then for sale would not constitute an offence under section 16 (l)(a) of the Act. This authority of the Supreme Court came for consideration before this Court in a case of Municipal Council, Jaipur (supra) and it was held that no doubt the act of sample being allowed to be taken for money, even if, in voluntary, is a sale but such sample can be purchased from a person selling milk etc. The authority of Madras case. Case of Calicut Corporation, and Tondon's (supra) case came for consideration before Single Bench of Bombay High Court and in Shettis (supra) case it was held that a Food Inspector is only empowered to take a sample under S. 10 of the Act and if the article of food was not kept by the accused for sale, then Food Inspector had no powers to take sample and even if the sample of food is found to be adulterated, the person who had not kept it for sale cannot be punished under the provisions of the Act. 8. In the instant case, as already observed above, the two court below have come to a definite finding that the ghee was not meant for sale, but was for home consumption. It can therefore, be said that the Food Inspector was not empowered to take the sample for purpose of analysis from the accused-petitioner. Therefore, even if it may be sale to the Food Inspector, but because he was not empowered to take a sample under S. 10 of the Act from the accused-petitioner, the accused cannot be held guilty under section S. 716 of the Act. 9. In the result, the revision petition is accepted. The judgments of the two courts below convicting and sentencing the accused-petitioner are set aside. The accused is acquitted of the charge levelled against him. He is on bail and need not surrender to his bail bonds which shall stand discharged.Revision accepted. *******