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PETITIONER: MUNICIPAL CORPORATION OF DELHI

       Vs.

RESPONDENT: LAXMI NARAIN TANDON ETC. ETC.

DATE OF JUDGMENT17/12/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1976 AIR  621            1976 SCR  (2)1050  1976 SCC  (1) 546  CITATOR INFO :  RF         1980 SC 674  (4)

ACT:      "Sale"-Distinction    between-Prevention     of    Food Adulteration Act, 1954, and Punjab General Sales Tax Act.      Storing an  article of  food for  purposes  other  than sale-If constitutes an offence-Supply and offer of food by a hotelier  to  a  customer  under  a  consolidated  charge-If constitutes sale  within the  meaning of  Prevention of Food Adulteration Act,

HEADNOTE:      The respondents were charged with an offence under s. 7 read with  s. 16 of the Prevention of Food Adulteration Act, 1954, on  the ground  that they had stored for sale articles of food, which were adulterated and of sub-standard quality. Before the  Magistrate, the  respondents contended  that  no articles of  food were  sold in  the hotel  to  non-resident visitors or the public generally and that the hotel provided residential services  and other  amenities  including  meals only to  resident customers  against a  composite charge and that no  rebate was  allowed for food if a resident customer chose  not   to  eat   it.  The   Magistrate  acquitted  the respondents.      On appeal the Division Bench of the High Court referred two questions to the Full Bench, namely, (i) whether for the purposes of  the Prevention  of Food Adulteration Act, 1954, there was  no sale of food provided by a hotelier to a guest when a  consolidated charge  was made;  and (ii) whether the expression "store"  used in  ss. 7  and 17  of the Act means storage simpliciter or storing for sale ?      The Full  Bench held  (1) that  there was  no ’sale’ of food to the customer within the contemplation of the Act and (2) that the word "store" used in ss. 7 and 16 means storage for sale.      Allowing the appeals, ^      HELD : (1) The High Court has over-looked the important distinction  between  the  connotation  of  "sale"  for  the purposes of  Sales Tax  Act and the one under the Prevention of food  Adulteration Act.  The supply of food by a hotelier

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to a  customer  when  a  consolidated  charge  is  made  for residential accommodation  and  other  amenities,  including food, amounts  to a  "sale" of  an article  of food  for the purposes of the Prevention of Food Adulteration Act. [1057 B and 1058 F]      (a) A  comparative study of the definition of ’sale’ in the Sales  Tax Act  and the  Prevention of Food Adulteration Act would  show that  the  connotation  of  "sale"  for  the purposes of Prevention of Food Adulteration Act is far wider than the  meaning assigned to it in the Sales Tax Act. [1056 B]      (b) The  object of  the Sales Tax Act is to levy tax on sales or  purchases of  certain articles  of  commerce.  The object of  the Prevention  of Food  Adulteration Act  is  to prevent, in  the interest  of the  health of  the community, supply of  adulterated foodstuffs  by a  person as a part of his business activity. [1056 F & H]      (c)  For   the  purposes  of  the  Prevention  of  Food Adulteration Act the broad test applicable would be, whether the article  of food  was offered  by the  hotelier  to  the resident  customer  for  a  money  consideration,  it  being immaterial whether such consideration was a distinct item or was an  inseparable element  of the consolidated charge made by the  hotelier for  providing  residential  accommodation, services,  amenities  and  food.  The  mere  fact  that  the property in  the food  article does not pass to the customer before he  eats it does not take it out of the definition of "sale" under  the Food  Act. In  the case  of food  actually consumed, the  property does  pass to the customer. In other cases, even when the 1051 resident customer  does not  eat the  food offered to him by the hotelier, such an offer by itself would be sufficient to constitute a  "sale" of  that article  of  food  within  the contemplation of  s. 2(xiii)  of  the  Food  Act.  The  fact remains that  the supply  or offer  of food to a customer is for a  money consideration  as a  part of  business activity and, as  such, constitutes  "sale" under  the Prevention  of Food Adulteration Act. [1057 C-D 1058 C]      (d) The  object of  assigning so extensive a meaning to the term  "sale"  is  to  bring  within  the  ambit  of  the Prevention  of   Food  Adulteration   Act   all   commercial transactions whereunder  an adulterated  article of  food is supplied for consumption by one person to another. [1056 D]      Municipal Corporation  of Delhi  v. Shri  Kacheroo  Mal [1976] 2 S.C.R. 1, referred to.      (e) The  dominant object  of the  transaction  and  the intention  of   the  parties,   while  entering   into   the transaction in  question, was  to  provide  against  payment wholesome  food   for   consumption,   besides   residential accommodation and services. [1058 B]      State of  Punjab v. M/s Associated Hotels of India Ltd. [1972] 2 S.C.R. 937, referred to.      (2) (a)  The Full Bench has rightly answered the second question. The  expression "store" in s. 7 means "storing for sale" and  consequently, storing  an adulterated  article of food for  purposes other  than for sale would not constitute an offence under s. 16(1)(a). [1054-H]      (b) The  terms  "store"  and  "distribute"  take  their colour from  the context  and the  collocation of  words  in which  they   occur  in   ss.  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. Under s. 10, the Food Inspector is authorised to  take samples  of an article of food only from

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particular  persons  indulging  in  a  specified  course  of business activity, the immediate or ultimate end of which 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 governed by any of the sub-clauses  of s.  2(i) (1)(a). Sub-s. 2 makes it clear that a  sample can  be taken  only of  that article  of food which is  "manufactured", "stored" or "exposed for sole". If an article  of food  is not  intended for sale and is in the possession of  a person  who does  not fulfil  the character such as is referred to in s. 10, the Food Inspector will not be competent  under the  law to  take a  sample, and on such sample  being   found   adulterated,   to   validly   launch prosecution thereon. [1054 D-G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal Nos 101, 104 of 1971.      From the  Judgment and Order dated the 24th April, 1970 of Delhi  High Court in Criminal Appeal Nos. 11,6, 63 and 64 of 1968.      V. S.  Desai, D. P. Maheshwari and Naresh Sethi for the Appellants.      A. K.  Sen, M.  C. Bhandare,  Rameshwar Nath  and M. K. Gupta for Respondents.      The Judgment of the Court was delivered by      SARKARIA,  J.  The  common  questions  that  arise  for determination  in  these  appeals  on  certificate  directed against the judgments of the Delhi High Court are :           (1)  Whether for  purposes of  the  Prevention  of                Food Adulteration  Act, 1954  (for short, the                Food Act) 1052                there is no sale of food which is provided by                a hotelier  to a  guest when  a  consolidated                charge  is   made  for  room  and  the  other                amenities, including food, and when no rebate                is allowed  for any  meal which  may  not  be                taken by the guest ?           (2)  Whether the  expression "store",  as used  in                section 7  and section  16 of  the Act, means                storage simpliciter or storing for sale ?      In answer  to the first question, the Full Bench of the High Court,  to which  these questions  were referred,  held that  when  a  composite  charge  is  made  for  residential accommodation and  food by  a hotelier,  there is no sale of food to  the customer  within the  contemplation of the Food Act. On  the second  question, its  answer was that the word "store" used  in s. 7 and s. 16 of the Act means storage for sale.      The questions arose in these circumstances:      M/s.  Associated  Hotels  of  India  Ltd.  (for  short, Associated Hotels)  runs  Hotels,  one  of  them  is  Oberoi Maidens Hotel,  7, Alipur  Road, Delhi.  Respondent 1 (L. N. Tandon) is  the Manager of that Hotel, while Respondent 2 is the Managing Director of the Associated Hotels. According to the prosecution  case, on July 25, 1966, Shri P. P. Sinha, a Food Inspector  of the  Municipal Corporation  of Delhi, got from Respondent  1, the samples of ice-cream, milk, curd and butter for  the purpose of analysis. The sealed samples were sent to the Public Analyst for examination and were found to be sub-standard and, as such, ’adulterated articles of food’ within the purview of s. 2(i) (i). In the case of ice-cream;

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there  was   1.6%  deficiency   in  total  solids  and  2.9% deficiency in fat.      The Assistant Municipal Prosecutor thereupon filed four separate complaints  under s.  7 read  with s. 16 of the Act for prosecution  of the  Respondents in  the  court  of  the Magistrate  1st   Class,  Delhi.   It  was  alleged  in  the complaints that  the articles  of food of which samples were taken, had  been stored  for sale  in the  said  Hotel.  The accused raised  factual as  well as  legal pleas in defence. Respondents inter  alia contended  that the sampling was not done  in   their  presence,  and  consequently,  the  entire proceedings, being violative of the mandatory requirement of law, were vitiated and illegal. A common stand taken by both the Respondents,  was that  no articles  of food are sold in this Hotel  to the  non-resident  visitors,  or  the  public generally,   that    the   hoteliers   provide   residential accommodation,  services   and  other  amenities,  including meals, only  to the  resident customers  against a composite charge and  that no rebate is allowed for food if a resident customer chooses not to eat it.      The Magistrate  accepted  the  defence  plea  that  the samples had  been taken  in the  absence of Respondent 1 and there had  been breach  of the law on that score. He further held that  the food articles of which samples were taken had not been  stored for  sale. In  the  result  the  Magistrate acquitted both  the Respondents. Against this acquittal. the Municipal Corporation of Delhi carried an appeal to the High Court. The  Division Bench  before which that appeal came up for 1053 hearing, referred three questions (including the two set out above) to a Full Bench for opinion. Thereafter, the Division Bench, merely  on the  basis of  the answers returned by the Full Bench upheld the acquittal and dismissed the appeals.      It will  be useful  at the outset to have a look at the scheme and content of the relevant provisions of the Act.      The broad  aim of  the Act  is to  ensure the  sale and supply of  pure food  to the  public. With that end in view, the Act prevents adulteration of food articles.      For the purpose of the Act an article of food is deemed to be  adulterated, if it falls under any of the clauses (a) to (1)  of s.  2 (i) This definition of "adulterated article of food"  is of  very wide  amplitude. Even  a  sub-standard article would fall within the mischief of sub-clause (1) "if the quality  or  purity  of  the  article  falls  below  the prescribed standard  or  its  constituents  are  present  in quantities which  are in  excess  of  prescribed  limits  of variability".      Section 7 prohibits a person to "manufacture"  for sale or "store",  "sell", or  "distribute", inter alia, any: "(i) adulterated food".      Contravention of  this prohibition  is punishable as an offence under  s. 16.  The relevant  part  of  the  sections reads:           "(1) If any person-           (a)  whether by  himself or by any other person on                his behalf imports into India or manufactures                for sale, or stores, sells or distributes any                articles of food-           (i)  which is  adulterated or  misbranded, or  the                sale of  which  is  prohibited  by  the  Food                (Health) authority  in the interest of public                health......................    he  shall  in                addition to  the penalty  to which  he may be                liable under  the  provisions  of  s.  6,  be

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              punishable with imprisonment for a term which                shall not  be less  than six  months but  may                extend to  six years,  and  with  fine  which                shall not be less than one thousand rupees :"      Then, there  is a  Proviso to  this  sub-section  which gives a discretion to the Court for any adequate and special reasons to  be recorded,  to award  a sentence less than the minimum prescribed, only if the offence is under cl. (a) (i) and is  with respect  to an  article  adulterated  under  s. 2(i)(1).      Section 10 confers powers on the Food Inspector to take samples and also indicates the scope of these powers.      Sub-section (1) authorises him-           (a)  to take samples of any articles of food from-           (i)  any person selling such article; 1054           (ii) any person who is in the course of conveying,                delivering  or   preparing  to  deliver  such                article to a purchaser or consignee;           (iii)a  consignee   after  delivery  of  any  such                article to him; and           (b)  to send  such  sample  for  analysis  to  the                public analyst  for  the  local  area  within                which such sample has been taken.              *             *            *              *".      Sub-section (2)  gives power  to the  Food Inspector to enter and  inspect any  place where  any article  of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis.      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 collocation of  words in  which they  occur in ss. 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 s.16 (1) will  be further  clear from a reference to s. 10. Under that section,  the Food Inspector, to whom the Act assigns a pivotal position  for the  enforcement of its provisions, is authorised to  take samples of an articles of food only from particular  persons  indulging  in  a  specified  course  of business activity.  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 sub-s. 1 (a) of sub-s. 2. The three sub-clauses of sub-section 1(a) apply only to a person who  answers the description of a seller or conveyer, 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. Sub-section  (2) further  makes it clear that  sample can be taken only of that article of food which is  "manufactured", "stored"  or exposed  for sale. It follows that  if an article of food is not intended for sale and is  in the  possession of  a person who  does not fulfil the character  of a  seller, conveyer, deliverer, consignee, manufacturer or  storer for sale such as is referred in sub- ss. 1(a) and (2) of the section, the Food Inspector will not be competent  under the  law to  take a  sample, and on such sample  being   found   adulterated,   to   validly   launch prosecution thereon.  In short, the expression "store" in s.

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7 means  "storing for  sale" and  consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under s. 16(1) (a).      The Full  Bench of  the High  Court  has  thus  rightly answered the second question. 1055      The stage is now set for considering the main question, whether food  made available  to a  resident customer  in  a hotel by  a hotelier  against a  consolidated charge for all the services  and amenities and food amounts to a sale of an article of food for the purposes of the Food Act ?      The High Court has considered this question entirely in accordance with  the norms  and tests applied in the context of Punjab  General Sales Tax Act, 46 of 1948 (for short, the Sales-tax Act)  by a  Division Bench  of the  High Court  of Punjab in State of Punjab v. M/s. Associated Hotels of India Ltd. (i)  which  was subsequently affirmed in appeal by this Court on  January  4,  1972  in  State  of  Punjab  v.  M/s. Associated Hotels of India Ltd. (2).      The High  Court  has  adopted  two  main  criteria  for holding the  transaction or  the arrangement in question not to be  a ’sale’  of an article of food. First, under such an arrangement, there  is no  transfer of  the property  in the food to  the customer unless it is actually consumed by him. Second, the  predominant  character  which  the  transaction bears is  not that  of a sale of an article of food but of a contract for  work or services, and the food supplied by the hotelier pursuant  to such  a transaction, is only a part of the amenities or services rendered to the customer.      In our opinion, neither of these reasons holds good, if the matter is considered in the context of the Food Act. For a proper appreciation of the points for determination, it is important to  bear  in  mind  the  distinction  between  the definition of  the term  ’sale’ in the Sales-tax Act and the Food Act, and also the fact that the purpose, scheme and the content of the two Acts are entirely different.      Under s.  2(h) of  the Sales-Tax  Act ’sale’  has  been defined as follows:           "In this  Act, unless  there is anything repugnant      in the subject or context,-           (h)  "sale" means  any  transfer  of  property  in                goods other  than goods specified in Schedule                for  cash   or  deferred   payment  or  other                valuable consideration,  but does not include                a mortgage, hypothecation, charge or pledge.           Explanation-(1)  A  transfer  of  goods  on  hire-      purchase or  other instalment  system of payment shall,      notwithstanding that  the seller retains a title to any      goods as  security for  payment of the price, be deemed      to be a sale." In the Food Act "sale" has been defined as under:           "In  this   Act  unless   the  context   otherwise      requires-           "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 1056      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."      A comparative  study of  the  above-quoted  definitions would show  that the  connotation of  "sale" for purposes of

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the Food Act is far wider than the meaning assigned to it in the Sales-tax  Act. While  under the  Food Act  "sale" would include a  mere "offer  for sale",  "exposing for  sale"  or having in  "possession for  sale", under  the Sales-tax Act, the transfer of property in the goods, except where it falls within the  Explanation, is  an essential feature of "sale". Further, the  legislature has advisedly left the word "sale" occurring in the first part of the definition under the Food Act to  be interpreted in its widest amplitude. According to the Oxford  Dictionary "sale"  means "action  or an  act  of making over  to another  for a  price", "the  exchange of  a commodity  for   money  or  other  valuable  consideration", "disposal of goods for money".      It will  be seen  that the  definition of  ’sale’ in s. 2(xiii) of  the Food  Act with  which we  are concerned,  is wider even  than  its  dictionary  meaning.  The  object  of assigning so  extensive a meaning to the term ’sale’ appears to be  to bring  within  the  ambit  of  the  Food  Act  all commercial transactions whereunder an adulterated article of food is  supplied for  consumption by one person to another. In the  context of  the Food Act, therefore, the term ’sale’ has  to  be  construed  according  to  the  "mischief  rule" enunciated in Heydon’s case. As pointed out by this Court in Municipal Corporation  of Delhi  v. Shri  Kacheroo Mal  (1), wherever  possible,   without  unreasonable   stretching  or straining, the  language of this statute should be construed in a  manner which  would suppress the mischief, advance the remedy, promote  its object,  prevent its subtle evasion and foil its artful circumvention.      The object of the Sales-tax Act is to levy tax on sales or purchases  of certain  articles of  commerce. The taxable event under  that Act  is the  sale or  the purchase  and to constitute a  taxable sale  or purchase  to use the words of Shelat J. who spoke for the Court in Associated Hotels Case, supra, "the  Revenue has to establish that there was a sale, distinct from  the  contract  of  work  or  service  of  the property so  passing to  the other  party." A transaction to attract liability  under the  Sales-tax Act, therefore, must be wholly  and solely  a ’sale’  of a  taxable article  as a distinct entity.  If  it  is  inseparably  submerged  in  or amalgamated with a contract for work or services, then it is not possible to fasten it with liability as a sale under the Sales-tax Act, much less can such liability be quantified as an item  of taxable  turnover for the relevant account year. Such considerations  or difficulties  do not  arise for  the purpose of the Food Act.      The primary  object of  the Food  Act is to prevent, in the interest  of the  health of the community, the supply of adulterated foodstuffs by a person as a part of his business activity. 1057      The definitions  of the term ’sale’ have in terms, been made subject  to the context of the respective Acts in which they occur.  Consequently, in  judging whether a transaction is a  sale or  not, due  regard must  be had to the purpose, scheme and  context of  the particular  Act under  which the question arises. The learned Judges of the High Court appear to have  overlooked the  important distinction  between  the connotation of  ’sale’ for purposes of the Sales-tax Act and the one under the Food Act.      For the  purposes of  the  Food  Act,  the  broad  test applicable would  be whether the article of food was offered by the  hotelier  to  the  resident  customer  for  a  money consideration,   it    being   immaterial    whether    such consideration was  a distinct  item or  was  an  inseparable

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element of  the consolidated charge made by the hotelier for providing residential accommodation, services, amenities and food?      The mere  fact that  the property  in the  food article does not  pass to  the customer  before he eats it, does not take it  out of the definition of ’sale" under the Food Act. In the  case of  food actually  consumed, the  property does pass to the customer. In other cases, even when the resident customer does  not eat  the  food  offered  to  him  by  the hotelier, such  an offer  by itself,  would be sufficient to constitute a  "sale" of  that article  of  food  within  the contemplation of s. 2(xiii) of the Food Act.      Mr. Ashok  Sen, relying  on the  observations  of  this Court in  Associated Hotels’  case (supra) contends that the true test  to be  applied even in a case under the Food Act, is; What  was the  primary object of the transaction and the intention of  the parties  while entering  into  it?  It  is maintained that the predominant character of the transaction in question  was  to  provide  a  number  of  amenities  and services to  resident customers  and that the meals supplied were only  incidental to  those services. In such a case, it is submitted, it cannot be said that the transaction amounts to a  ’sale’ of  meals as  an article  of  commerce  to  the customer. Mr. Sen cites instances of Hospital, Nursing Home, College  Hostel,   Nursery   School,   Passenger   Airliner, Passenger Ocean-going  Ship where  meals are provided to the residents or  passengers, as the case may be, as part of the services against  a consolidated  charge.  Counsel  concedes that if  the respondents  had been  supplying  food  to  the members of  the public  who were not residents of the Hotel, against charges,  from the  same kitchen or store from which they  supplied  it  to  the  resident  customers  against  a consolidated charge,  that would  be hit  by  the  Food  Act because in  such a  case mere  storage of food in the Hotel, would be  ’storage for sale’ attracting the penal provisions of the Food Act.      It  appears   to  us  that  the  contention  cannot  be accepted. We  have already indicated above that for purposes of the  Food Act, the mere offer of an article of food for a money   consideration,    irrespective   of   whether   such consideration is ascertainable, as a distinct item, or is an inseparable element of a consolidated charge for a number of things, would  bring it  within the mischief of "sale" under s. 2(xiii) of the Food Act. 1058      The test  suggested by  Mr. Sen is not decisive for the purposes of the Food Act. Even so, if such a test is applied consistently with  the object  of the  transaction  and  the intention of the parties while entering into is nevertheless a commercial transaction. Surely, the dominant object of the transaction and  the intention of the parties while entering into the  transaction in  question was  to  provide  against payment, whole some food for consumption besides residential accommodation and  services. Good  residential accommodation and good  food against one consolidated charge were the main considerations which  must have  weighed  with  the  parties while entering  into this  transaction. It  is therefore not correct to  say  that  the  supply  of  food  under  such  a composite transaction  entered into between the hotelier and his resident  customer does  not amount to supply of food as an article  of commerce. The fact remains that the supply or offer  of   food  to   such  a   customer  is  for  a  money consideration as  a part of business, activity, and as such, constitutes "sale" under the Food Act.      It is true that in pursuance of such a transaction, the

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bill prepared  by the hotelier is one and indivisible; it is not capable  of being  proximated or  split into charges for food and  charges for  other amenities. But the fact remains that such  a composite  bill is  prepared after  taking into account the cost of the meals, also.      The illustrations  given by  Mr. Sen  are not apposite. Hotel business  is very different from that of a Hospital or a Nursing  Home, or  College Hostel,  or Passenger  Airliner etc. Moreover, the question whether a particular transaction in the context of the Food Act constitutes a sale or not, is largely a question of fact depending on the circumstances of each case.  It is therefore not proper to enunciate any hard and fast  rule of  universal application  on  the  basis  of purely hypothetical instances cited by Mr. Sen.      For the  foregoing reasons  we would reverse the answer given by the High Court and hold that the supply or offer of food by  a hotelier to a customer when a consolidated charge is made  for residential  accommodation and other amenities, including food,  amounts to  a ’sale’  of an article of food for the purpose of the Food Act.      The last  submission of  Mr. Sen was that this case has been  pending   for  the  last  15  years;  that  the  trial Magistrate had  acquitted the  respondent not  only  on  the ground that  there was  no "sale"  within the meaning of the Food Act  but also  on the  ground that  the samples  of the articles in  question were  not taken in accordance with law in the presence of Respondent No. 1. It is stressed that the law on  the point  was anything  but clear and this is not a case where articles of food were found contaminated or mixed with  any   deleterious  or  injurious  substance;  but  the articles of  food being  sub-standard, were only technically adulterated under  cl. (1)  of s. 2 (i) of the Act. In these premises, counsel  maintains, the  acquittal should  not  be converted into  a conviction.  Reliance has  been placed  on this Court’s  dicta in  Food Inspector Calicut Corporation’s case (1)  and M/s.  Bhagwan Das  Jagdish  Chander  v.  Delhi Administration and anr.(2) in support of this contention. 1059      Although this  last contention  is not wholly devoid of force, we  find it  difficult to  accept it because the High Court has  not recorded  any finding  on the merits of these cases. It  has maintained the acquittal merely on the ground that the transaction in question did not amount to "sale" of article of  food within the meaning of the Food Adulteration Act. The  case would  therefore have  to go back to the High Court for deciding the appeals on merits.      Accordingly, we  allow these  appeals,  set  aside  the judgment of  the High Court and remit the cases to it with a direction to  dispose them  of in  accordance with  law.  It would be  open to  the respondents  to urge  before the High Court all the contentions which are available to them. Since the cases are quite old, the High Court will dispose them of with utmost expedition. P.B.R.                                      Appeals allowed. 1060