In Re: Bellemkonda Kanakayya

Horwill, J.—The first accused in this case was the owner of a shop where he kept and offered for sale certain ghee which was found on

analysis to be adulterated to the extent of 35 per cent. The second accused was working in that shop and his duty was to sell the ghee to

customers. The Sanitary Inspector entered the shop, exercised his powers u/s 14 of the Madras Prevention of Adulteration Act, and demanded a

sample from the second accused, who was then selling articles in his master''s absence. When this sample was found to be adulterated ghee, both

the accused were prosecuted. The Sub-Magistrate of Guntur, thought that both of them were guilty. In appeal, the Special First Class Magistrate

came to the conclusion that because the first accused was absent and no notice was given to him as required by Section 15 that it was intended to

have the sample analysed, that the trial and conviction of the first accused was vitiated. He however considered that the conviction of the second

accused was right because he thought that he must be deemed to have offered this adulterated ghee for sale. The second accused has therefore

preferred this revision petition against the affirmation by the appellate Judge of his conviction.

The Special First Class Magistrate seems to have acquitted the man who was guilty of an offence under the Act and to have convicted the man

who was innocent. The first accused, in displaying this ghee in his shop, was offering it for sale; and Section 5 of the Act makes punishable the

offering of ghee for sale. If the accused commits an offence u/s 5 by offering adulterated ghee for sale, it does not cease to become an offence

because of an omission on the part of the Sanitary Inspector to comply with the requirements of Section 15 in giving a notice in writing that he had

taken the ghee for the purpose of analysis. Section 15 seems to have been enacted for the protection of the vendor, so that he himself might, if he

so wished, have the ghee analysed privately so that he might be satisfied that it was really adulterated in the manner and to the extent indicated by

the public analyst. Accused persons not infrequently take advantage of the notice given to them u/s 15 and get the ghee analysed privately for the

purpose of defending themselves against any charge that the authorities might prefer against them. If notice is not given, an accused person may

have cause for complaint that he was not given a proper opportunity of defending himself. That argument would of course be available as much to

an employee as to the owner. Section 15 does not suggest that it is in any way connected with the prosecution or the trial so as to make it an

indispensable preliminary to either. If an accused contends that he would have had his part of the sample analysed but for the failure to give him

notice in writing, the Court, would have to consider the reasonableness of that plea.

The learned Public Prosecutor concedes that the petitioner was not offering ghee for sale. It is the owner, who displays articles in the shop and

thereby invites the public to purchase them, who offers them for sale. The petitioner has no right to interfere with anything that his master had done,

or to remove from the shop any articles that his master had placed there for sale. That does not of course mean that he could escape liability for

doing any illegal act. He could not, for example, sell adulterated ghee, for that would be punishable u/s 5; but the offering for sale was presumably

done by his master. As far as we know, the appellant did nothing to make the offer more attractive.

The charge against the petitioner was of offering ghee for sale; but it was argued that he would be guilty of selling the ghee. A sale is a voluntary

transaction, even when it is preceded by an agreement to sell. When a person exhibits articles in his shop he is making a general offer to sell them,

and any person who comes into the shop and offers the price accepts his offer; but the intending purchaser cannot use physical force or threats to

compel the owner to part with the goods. If he does, the transaction is not a sale. If the Sanitary Inspector had not exercised his powers u/s 14,

but had merely tendered the money and the petitioner had voluntarily handed over the goods, then there would have been a sale; and the fact that it

was subsequently found that the goods were required not for consumption but for analysis, would make no difference to the nature of the

transaction that had been entered into. In this case the petitioner would presumably not have parted with the goods voluntarily when he knew that

they would be used for the purpose of bringing a case against him and his master. The petitioner was not therefore guilty of selling ghee.

Lakshmana Rao, J., in a similar case held that the parting with a commodity when it is demanded by the Sanitary Inspector in the exercise of his

powers u/s 14 of the Act did not amount to a sale.

The petitioner not having committed either the offence of selling ghee or of offering it for sale, he is entitled to be acquitted. The petition is

therefore allowed and the conviction and sentence set aside. The fine, if paid, will be refunded.