Judgment.- The State of Andhra Pradesh has preferred this appeal against the acquittal of the respondent by the Second Additional Judicial First Class Magistrate, Vijayawada in C.C. No. 648 of 1964 of an offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act. Sri Jayachandra Reddy, the learned Additional Public Prosecutor, has argued that the Magistrate has ignored the fact that the sale for analysis is also a sale within the ambit of section 2(xiii) of the Act, that it is not necessary that in every case of seizure of the sample, there should be two mediators, and that non-production of the sample retained by the Food Inspector in the lower Court will not by itself show that the sample of ‘curd’ in this case was not purchased from the respondent. To appreciate the contentions of the Additional Public Prosecutor, the following relevant facts may be set out. On 30th January, 1964, the respondent (accused) was seen carrying ten seers of curd near Kaleswara Rao Market, Vijayawada. P.W. 1, the Food Inspector, who was accompanied by his maistry (P.W. 2) served a notice upon the respondent calling upon him to sell ¾ seer of buffalo curd and paid Rs. 0-25 np. and obtained a receipt Exhibit P-3 from the respondent. He then sent one sealed part of the sample to the Public Analyst on 1st February, 1964 for analysis. The Public Analyst in his report. Exhibit P-4 dated 30th April, 1964 gave a finding that the sample was deficient in fat to the extent of 96 per cent. and is therefore adulterated. He also noted in his report that no change had taken place in the article sent to him for analysis since the date of purchase, that would interfere with the analysis. It is on the strength of this report, Exhibit P-4 that P.W. 1, the Food Inspector laid the complaint before the lower Court The defence of the accused was that he did not commit any offence, that he was taking the curd to his brother-in-law (D.W. 1) and that on the way P.W. 1 called him and obtained his thumb impression on a blank paper. The evidence of D.W. 1 is to the effect that on 30th January, 1964. The evidence of D.W. 1 is to the effect that on 30th January, 1964. the accused was asked to bring him curd and vegetables as he was performing “Satyanarayana Vratam” in his house and that the accused told him that a sample of curd was taken by the Food Inspector although he informed him that the curd was not meant for sale. It is the case of the accused that his thumb impression was obtained on a white paper so as to make the receipt, Exhibit P-3 The learned Magistrate on a consideration of the evidence came to the conclusion that the Food Inspector did not procure any witnesses for the seizure the result of which occasioned the breach of the mandatory provisions of section 10(7) of the Act, that he (P.W. 1) also filed to establish that the curd in the possession of the accused was intended for sale. Having regard to the defence pleaded by the respondent and the points raised by the learned Additional Public Prosecutor, it is necessary to first decide the question whether the sale of curd in this case to the Food Inspector constitutes a sale within the meaning of section 2(xiii) of the Act. Mr. Suryanarayana Murthy appearing for the respondent contended that the first essential requisite to be established by the prosecution is that the respondent is a curd vendor and that it is not the purchase of sample in every case by the Food Inspector that would constitute a sale, unless the article of food is intended or exposed for sale. It may be necessary in this connection to notice the relevant provisions. Section 2(xiii) defines ‘sale’: ‘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. Section 2(xiv) defines ‘sample.‘‘Sample’ means a sample of any article of food taken under the provisions of this Act or of any rules made thereunder. The next relevant section is section 7 and it prohibits manufacture or sale of certain articles of food. Section 2(xiv) defines ‘sample.‘‘Sample’ means a sample of any article of food taken under the provisions of this Act or of any rules made thereunder. The next relevant section is section 7 and it prohibits manufacture or sale of certain articles of food. Section 7 reads: “No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute- (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food Health) Authority in the interest of public health; or (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.” We are only concerned with the sale of an article of food, i.e., in this case ‘curd’. The sale of an adulterated article of food by any person either on his own behalf or on behalf of another is prohibited under section 7. The Supreme Court dealing with the definition of sale held in Mangaldas v. Maharashtra State1that a salt to the Food Inspector for analysis although the transaction is not consensual is still a sale under the Act. To quote their Lordships: “The Act gives a special definition of ‘sale’ in section 2 (xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.” Mr. To quote their Lordships: “The Act gives a special definition of ‘sale’ in section 2 (xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.” Mr. Suryanaryana Murthy pointed out that in the case decided by the Supreme Court the arguments proceeded throughout on the footing that the transaction was a sale and further the appellant in that case was a wholesale dealer commission agent and manufacturer of various kinds of spices and engaged in grocery business, and in this present case the respondent is not a dealer or vendor in any sense of the term and he was at best an agent of his brother-in-law, bringing him curd from his house for “Satyanaryana Vratam.” It is further argued by him that if the definition of ‘sale’ is to be stretched as to include every sale for analysis, then the Food Inspector would be at liberty even to demand from the individuals who keep articles of food for their domestic consumption and then contend that sale for analysis is also a sale within the meaning of section 2(xiii) of the Act. In support of his contention, he invited my attention to a decision of Somasundaram, J., of the Madras High Court in Public Prosecutor v.Kandasamy2, The view taken by the learned Judge is this: “Where the accused is charged for an offence under the Prevention of Food Adulteration Act that is, for selling adulterated milk, the first essential requisite to be established is that the milk from which the Sanitary Inspector gets a small quantity from the vendor as sample is intended for sale. What is given by the accused to the Sanitary Inspector is undoubtedly sale but what is really to be decided is whether the milk which the accused was taking was intended for sale.” The defence in that case was that the accused was taking milk to the coffee-hotel of his brother who was owning cows and buffaloes in his house and that it was only the milk got from the buffaloes in his house that he was carrying to his brother’s hotel and that it was never intended for sale but that when the Sanitary Inspector demanded he could not refuse to give as that would amount to an offence. In that case the analyst’s report showed that the milk was adulterated, but the Magistrate held that there was no sale as such to the Food Inspector. But the High Court corrected the error and pointed out that it was nonetheless a sale; but the question for determination was whether the milk which the Food Inspector purchased was intended for sale. Whether a particular article of food is intended for sale or not is a question of fact in each case. If the defence of the accused person is that if an article of food for instance ‘curd’ in this case was not intended for sale, but was intended for domestic consumption and that he had no alternative but to submit to the authority of the Food Inspector, the Onus is upon him to establish that he is not a vendor and that the article of food was prepared for his or his relations’ domestic consumption. If by reliable evidence, the respondent fails to establish that the article of food was not for sale but meant for domestic consumption, then he will be selling an article of food, if it is found adulterated, which is prohibited under section 7 of the Act. The Allahabad High Court dealing with a case of ‘sale’ by a hawker, in Agra Municipality v. Raghunath1, observed that “in the case of a hawker who carries articles of food for sale by hawking, it is impossible in every case for the prosecution to prove its actual sale to a customer, that to overcome this practical difficulty, the Legislature has provided that sale of any article of food even for analysis Will be a sale within the meaning of the Act, that by acceptance of the price of the sample obtained by the Food Inspector the accused thereby sold the milk within 1he meaning of the Act, that if the milk. was not for sale, he could have refused to accept the price offered by the Food Inspector for the sample and that the accused was therefore wrongly acquitted and that the acquittal should be set aside.” Basi Reddy, J., speaking for the Division Bench of this Court in Public Prosecutor v. Nagabhushanam2observed: “Where a person sells edible oil to the Food Inspector for analysis, his act constitutes a ‘sale’ within the meaning of section 2 (xiii) of the Act. By its very definition, a sale is not any the less a sale because it is for analysis, it need not necessarily be for human consumption or for human use. The purchase of a sample by a Food Inspector is not for his personal consumption or use but is only for the purpose of detecting if the article of food is adulterated.” In this case, there is nothing to suggest that at the earliest moment v. hen the Food Inspector asked for the sale of the sample of curd, the respondent came with the plea or defence that he was taking the curd for his brother-in-law and that it was not intended for sale to anybody. The evidence of D.Ws. 1 and 2 that the Food Inspector compelled or forced the respondent to affix his thumb impression on Exhibit P-3, the receipt passed by the respondent for payment of Re. 0-25 by P.W. 1towards the cost of the curd is based on the representation of the respondent and there is nothing to suggest that as alleged by them, the Food Inspector obtained his thumb impression on Exhibit P-3. I am unable to attach any importance to the defence version as it is undoubtedly an afterthought designed for the purpose of defence. In view of the authoritative pronouncement of the Supreme Court, the doubt, if any, whether the sale for analysis would come within the ambit of sale has been dispelled. The next question that arises for consideration is whether the failure to seize the sample in the presence of two mediators and also the failure of the Food Inspector to produce the sample which was retained by him into Court would affect or vitiate the trial or cause substantial prejudice to the respondent. The Food Inspector admitted that he did not get any independent witnesses to be present at the time of his proposed action as they had refused. The relevant portion of his evidence reads: “There were 50 or 60 persons passing that way. There was a Post Office opposite to it. I did not obtain any independent witness to attest as they refused. I did not mention that the witnesses to attest. I do not remember if the accused is a literate or illiterate.” The Food Inspector’s assistant, P.W. 2 stated that P.W. 1 did not ask any one to be a witness. There was a Post Office opposite to it. I did not obtain any independent witness to attest as they refused. I did not mention that the witnesses to attest. I do not remember if the accused is a literate or illiterate.” The Food Inspector’s assistant, P.W. 2 stated that P.W. 1 did not ask any one to be a witness. This statement of P.W. 2 read with the evidence of P.W. 1 undoubtedly shows that they did not ask any person or persons to be present at the time when action was taken against the respondent. Section 10(7) of the Act lays down: “Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signature.” In this case, the Food Inspector took action under section 10(1)(a) by taking a sample of an article of food (curd) from the respondent. No explanation is offered by him for not calling at least one or two persons to be present at the time when he seized the sample and paid the sale price under Exhibit P-3. It is not in every case where there is non-compliance of this provision that it would affect the trial. The circumstances in each case have to be taken into consideration. I can understand if the Food Inspector had made any attempt. In fact it is stated by P.W. 2 that no such attempt was made to get one or two witnesses to be present at the time of seizure of the article. The non-compliance of this provision may not be of much consequence in a case where the accused admits the sale and seizure of an article of food. It certainly assumed great importance in a case where the respondent asks for production of the sample retained by the Food Inspector into Court. It is the case of the Food Inspector that he divided this curd into three samples, filled them into empty, clean and dry bottles, sealed each bottle in the presence of the accused, gave him one bottle, sent one to the analyst and retained the third with him. The sample was also numbered as 836. It is the case of the Food Inspector that he divided this curd into three samples, filled them into empty, clean and dry bottles, sealed each bottle in the presence of the accused, gave him one bottle, sent one to the analyst and retained the third with him. The sample was also numbered as 836. The defence of the respondent is that P.W. 1 did not pay the cost of the curd purchased from him and that he also did not give him the sample bottle. The Magistrate dealing with this aspect of the case observed: “Summoning of independent witnesses to witness and attest the documents wherever they are available is obligatory on the part of the Food Inspector under the provisions of Prevention of Food Adulteration Act. This statutory obligation is not discharged by P.W. 1. D.W. 2 deposed that P.W. 1 did not pay the cost of the curd purchased from the accused and also he did not give any sealed bottle to him. D.W. 2 added further that P.W. 1 took thumb impression against the will of the accused. The third sample bottle was not produced in the Court.” Therefore having regard to the circumstances of the case, there is no doubt that there has been a violation of the provisions of section 10(7) of the Act. The prosecution has next to establish that the sample sent to the analyst for analysis is a part of the sample retained by him (P.W. 1) and also given to the respondent. In this case the defence is that part of the sample was not handed over to the respondent and therefore it is all the more obligatory on the part of the Food Inspector to establish that the sample sent to the Public Analyst formed part of the sample retained by him by producing that sample. The Food Inspector cannot shift the burden on the respondent by asking him to produce his sample when it is pleaded in defence that no such part of the sample was handed over to him (the respondent). Section 11 of the Act prescribes the procedure to be followed by the Food Inspector when he takes a sample of food for analysis. Section 11 of the Act prescribes the procedure to be followed by the Food Inspector when he takes a sample of food for analysis. It is only by producing the sample that it could be established that he had divided the sample purchased into three parts, marked and sealed each part and delivered one of the parts to the person from whom the sample has been taken. The evidence against the respondent to substantiate the charge rests entirely on the testimony of P.Ws. 1 and 2 and unless there is corroboration by independent witness for the seizure it will be difficult to rely solely on the testimony of departmental officials (P.Ws. 1 and 2) when they are even unable to produce in the Court the third sample retained by P.W. 1. In this view of the case, I hold that there is a violation of the provisions of section 10(7) of the Act causing substantial prejudice to the respondent. It is not enough if the sale of an article of foodstuff is established. It is further to be established that the procedure laid down in sections 10(7) and 11 of the Act has been followed and that the sample given to the respondent or retained by the Food Inspector forms part of the identical sample sent to the Public Analyst for analysis. The evidence of P.Ws. 1 and 2 in the absence or their failure to produce the sample retained by P.W. 1 will not establish that what was sent for analysis under section 11(2) of the Act was the identical part of the sample purchased from the respondent. I am therefore unable to interfere with the acquittal of the respondent. In the result, the State Appeal is dismissed. A.B.K. ----- Appeal dismissed.