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PETITIONER: MANGALDAS RAGHAVJI RUPAREL & ANR.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 08/02/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  128            1965 SCR  (2) 894  CITATOR INFO :  R          1970 SC 318  (5)  R          1970 SC 366  (5)  F          1971 SC1725  (15)  RF         1980 SC 538  (11)

ACT: Prevention  of  Food  Adulteration  Act  (37  of  1954)  ss. 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.

HEADNOTE: 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.

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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, [1965] 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  analysis. The  transaction  in the instant can would  amount  to  sale inspite  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., [1961] 3 S.C.R. 324,  M.  Y. Joshi v. M.    U.  Shimpi, [1961] 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, [1962]  1  Cr. L.J. 652, overruled.

JUDGMENT: 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,

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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 High  Court. 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  challenge it. 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 were:               (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

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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

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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  alcohol. 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. [1962] 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

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             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  law  to. 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

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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 follows :               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. [1962] 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 Public Analyst. 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 nd if either  the

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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 quite sufficient.  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 the commodity. 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.

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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 adulterated. 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

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there is an element of compulsion and, therefore, it  cannot be (1) [1951] S.C.R. 322. (2) [1965] 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 analysis.               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 Parameswaran’s case(1). (1)  [1962] 1 Crl.  L.J. 152. (2)  [1961] 3 S.C.R. 324. (3)  [1961] 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.

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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 Judges held:               "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  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)  [1962] 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. Appeals dismissed. 908