N Criminal Appeal No 138 of 1971
Appeal by Special Leave from the Judgment and Order dated the 22nd March 1971 of the Delhi High Court in Criminal Revision No 232 of 1969
K C Kalra R C Verma and section L Aneja for the Appellant
982 F section Nariman B P Maheshwari N K Jain and Suresh Sethi for Respondent No 2
The Judgment of the Court was delivered by BHAGWATI J
This appeal by special leave raises a short and interesting question of law relating to the interpretation of the provisions of the 
The facts giving rise to the appeal are few and may be briefly stated as follows
On 12th July 1967 a raiding party headed by Dr A D Kumar the Assistant Health Officer of the Municipal Corporation of Delhi and comprising inter alia Shanti Nath Navnit Lal H R Sood and H K Bhanot Food Inspectors intercepted a truck bearing No DLL 1925 near Chandni Chowk Delhi at about 7 am in the morning
The truck contained twenty five to thirty cans of cow s milk which was being carried for sale by the appellant
The raiding party took the truck inside the compound of the Municipal office and there samples of cow s milk were taken from eight cans chosen at random by different Food Inspectors one sample being drawn from each can
Each sample was divided into three parts and after carrying out the usual formalities one part of each sample was sent to the Public Analyst for analysis
The result of the analysis was that each sample was found to be adulterated under section 2 sub section
i cl
1 of the Act in that the percentage of non fat solids was lower than that prescribed by Item A 110101 read with Item A 110111 in Appendix B to the Prevention of Food Adulteration Rules 1955
The prescribed minimum percentage of non fat solids in cow s milk in Delhi was 85 while the percentage found in each of the samples was below that figure
In fact it varied from sample to sample and ranged between 547 and 806
On finding as a result of the report of the Public Analyst that each sample was adulterated under section 2 sub section
i cl
1 the Municipal Corporation filed four different complaints against the appellant one in respect of four samples the other in respect of two samples and the third and the fourth in respect of each of the remaining two samples
The cases arising out of the first two complaints were consolidated and a single charge was framed in respect of six samples on the ground that the appellant sold to the Food Inspectors samples of adulterated cow s milk out of six cans which he was carrying for sale and thereby committed an offence punishable under section 16 read with section 7 of the Act
Similar charges were framed in the remaining two cases the charge in one case being for sale of sample of adulterated cow s milk out of the seventh can and the charge in the other being for sale of sample of adulterated cow s milk out of the eighth can
So far as the first case is concerned the learned Magistrate accepted the prosecution case including the report of the Public Analyst and held that the appellant was guilty of selling to the Food Inspectors samples of adulterated cow s milk out of six cans carried by him
But instead of treating the sale of each sample as a distinct and separate offence the learned Magistrate regarded the sales of the six samples as forming part of the same transaction and constituting only one offence since all the six samples were taken at the same time from the 983 cans which the appellant was carrying in the truck
The learned Magistrate in this view convicted the appellant of a single offence under section 16 read with section 7 of the Act and sentenced him to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs 1000 or in default to suffer imprisonment for a further period of three months
The other two cases also in view of the report of the Public Analyst and other prosecution evidence resulted in the conviction of the appellant under section 16 read with section 7 of the Act and in each of those two cases the appellant was sentenced by the learned Magistrate to suffer rigorous imprisonment for a like period and to pay a fine in a like amount as in the first case
The sentences of imprisonment in the three cases were however directed to run concurrently with one another
The appellant preferred three appeals to the Additional Sessions Judge Delhi one in respect of conviction and sentence in each case
So far as the first case is concerned the learned Additional Sessions Judge maintained the conviction but taking the view that the only deficiency in the quality of samples of cow s milk sold by the appellant being in respect of non fat solids and there also the deficiency being very small ranging only from 045 to 285 the sentence awarded to the appellant was rather excessive the learned Additional Sessions Judge reduced the sentence to rigorous imprisonment for three months leaving the sentence of fine untouched
The conviction in the second case was also maintained in appeal but the learned Additional Sessions Judge held that the offence in that case would constitute a part of the offence in the first case and hence he did not think that a separate sentence would be called for or justified and in this view he confirmed the conviction of the appellant
but set aside the sentence imposed on him
So also in the third case the learned Additional Sessions Judge made the same order in appeal maintaining the conviction of the appellant but setting aside the sentence passed on him
It does not appear from the record whether the appellant preferred any revision application against the order passed by the learned Additional Sessions Judge in the second and third cases in so far as it confirmed the conviction of the appellant or the State preferred any revision application against that order in so far as it set aside the sentence imposed on the appellant
But so far as the order passed by the learned Additional Sessions Judge in the first case was concerned the appellant preferred a revision application against it in the High Court of Delhi
The first case as already pointed out above related to sales of samples of adulterated cow s milk out of the six cans carried by the appellant
Both the learned Magistrate and the learned Additional Sessions Judge had treated the sales of these six samples as forming part of the same transaction and constituting one single offence
The High Court however took the view that the sale of each sample constituted a distinct and separate offence and the appellant was therefore liable to be tried not for one single offence but for six different offences in respect of sales of six samples
The High Court observed that the sale of each sample was a separate sale and each such sale constituted a separate breach of the provisions of section 7 of the Act leading to a separate offence punishable under section 16 of the Act
984 The High Court accordingly set aside the order of conviction and sentence passed against the appellant and remanded the case to the learned Magistrate for retrial of the appellant for each of the six different offences constituted by the sales of six samples
This led to the filing of the present appeal with special leave obtained from this Court
The appellant contended that the gravamen of the charge against him was that he had stored for sale adulterated cow s milk in six cans carried by him in the truck
The act of storing was one single act and it was immaterial whether the storing was in one can or in several cans
Merely because samples were taken by the Food Inspectors from different cans it did not mean that so many different offence were committed by the appellant for the different samples only confirmed that cow s milk stored by the appellant in these cans was adulterated
The offence was one and single and that was storing adulterated cow s milk for sale whether in one can or more
It was alleged on behalf of the appellant that even if the offence charged against the appellant were not storing adulterated cow s milk for sale but selling samples of adulterated cow s milk out of six cans to the Food Inspectors for analysis taking of sample from each can did not constitute a distinct and separate offence of selling adulterated cow s milk
There was only one sale by the taking of sample from six cans since all the samples were of the same article of food namely cow s milk and were taken at the same place and at the same time
Otherwise contended the appellant the result would be that if the Food Inspector goes on taking samples from the same stock of cow s milk or other article of food the sale of each sample would constitute an independent offence and there would be as many offences as the number of samples taken though the stock of the commodity is the same
That would be a most startling and unjust consequence
Therefore said the appellant though samples were taken by the Food Inspectors from six different cans there was only one offence of selling adulterated cow s milk committed by the appellant and the High Court was in error in holding that the appellant was liable to be tried for six different offences
These were the two contentions urged on behalf of the appellant in support of the appeal
Neither of these two contentions is in our opinion well founded and both must be rejected
It is clear on a plain reading of section 7 of the Act that the acts prohibited by that section include manufacturing for sale storing selling or distributing any adulterated article of food
The law is now well settled that the act of storing an adulterated article of food would be an offence only if storing is for sale
If adulterated article of food is stored by any person for consumption or for any purpose other than sale it would not come within the inhibition of the section
Now when out of adulterated article of food stored for sale a quantity is sold the sale constitutes an offence distinct and independent from the offence of storing for sale
Not only is the act of storing for sale an offence but also the act of selling out of the adulterated article of food so stored
Here in the present case the charge against the appellant was not of storing adulterated cow s milk for sale
It was a charge of selling to the Food Inspector samples of adulterated cow s milk out of six cans carried by the appellant
It is therefore unnecessary to 985 consider whether storing of adulterated cow s milk in each of the six cans constituted a distinct and separate offence and we do not express any opinion on it
The only issue which requires to be considered by us is whether the sale of sample of adulterated cow s milk from each can constituted a distinct and separate offence or there was only one offence committed by the appellant by selling samples of adulterated cow s milk from six cans
Now the definition of sale  in section 2xiii includes within it sale of any article of food for analysis and it would seem that even if several samples are taken by the Food Inspector for analysis from the same stock of adulterated article of food taking of each sample would constitute a distinct and independent sale and each such sale would be an offending act attracting the penal provisions of the Act
The position would indeed be beyond doubt where samples are taken from different receptacles
whether at one and the same time or at different times because each sample would be taken for determining whether the article of food in a particular receptacle is adulterated or not
It may be that the article of food in one receptacle is adulterated while in the other it is not and even the nature and degree of adulteration may vary from one receptacle to another
Each sample taken would therefore be really and truly for the purpose of analysis
So also there would be no scope for argument where samples are taken from the same receptacle at different times because sample taken at an earlier point of time if found adulterated on analysis would merely show that the article of food in the receptacle at that particular point of time was adulterated and it would not dispense with the analysis of the article of food in the receptacle at a later point of time for at such later point of time the article of food in the receptacle may not be adulterated or it may consist of different proportions or the adulteration in it may be much more deleterious or injurious to human health
The taking of each sample would be necessary and justified for the purpose of analysis and hence each taking of sample would constitute a distinct and independent sale
It is only where samples are taken from the same receptacle at one and the same time or within reasonable proximity of time that it may not be possible to say that the taking of each of these samples constitutes a distinct and separate sale
When a sample is once taken from the receptacle for analysis there cannot be any question of taking another sample for analysis at the same time
The taking of the second sample would be wholly unnecessary so far as the purpose of analysis is concerned and it would lay itself open to an attack that it is not really and truly for the purpose of analysis
It is only where a sample is taken for analysis that its taking constitutes a sale
The taking of the second sample would not therefore amount to a sale involving an offence
But in the other two cases where samples are taken from different receptacles though stocked at one place at one time or at different times or samples are taken from the same receptacle at different times the taking of each sample would constitute a sale and hence a distinct and separate offence
This view which we are taking is clearly supported by the decision of the Queen s Bench Division in Fecitt vs Walsh1
There while the 986 appellant was delivering at a workhouse milk contained in five cans pursuant to a contract of sale the respondent acting under section 3 of the Sale of Food and Drugs Act Amendment Act 1879 procured a sample from each of the five cans and on finding that there was a large deficiency of cream in two of the samples the respondent laid two separate informations against the appellant in respect of those two samples under section 9 of the Sale of Food and Drugs Act 1875
The Justices convicted the appellant in a separate penalty upon each information and on appeal against these convictions the appellant contended that on the facts there could not be more than one information against him since there was only one sale of milk by him and it was being delivered in five cans merely because that was a convenient form of delivery
Day J negatived this argument of the appellant and held that procuring of each sample was a separate offence as to each can in respect of which an information could be laid against him and the convictions of the appellant on the basis of separate informations laid against him were therefore right
The learned Judge observed As far as he was concerned there were five transactions in respect of each of those transactions he must have proceeded under the statute and would then be deemed to have purchased in each case from the seller
It seems to me that the sergeant in procuring these samples must be deemed to have been the purchaser in each particular case and that as he was the purchaser of five samples the purchase of each one was a separate transaction and that in respect of each of them an information would lie
As a matter of fact the respondent only proceeded in respect of two of the samples obtaining a separate conviction upon separate informations in respect of each of them and our answer to the first question must be that he was right and that more than one information could be laid against the appellant
 The analogy of this decision is striking and it clearly shows that where samples are taken from different receptacles for the purpose of analysis the taking of each sample would be a separate transaction of sale and each such transaction of sale would constitute a separate offence if the sample is found to be adulterated
The appellant leaned heavily on the decision of the Calcutta High Court in Sanker Lal Agarwalla vs Corporation of Calcutta1 where it was held by D N Das Gupta J that where three Food Inspectors visit the godown of an accused dealing in ghee the same day and at the same time and each takes samples of ghee from three different lots of tins and the three samples collected are found adulterated the offence committed under the by the accused is the same namely the offence of storing and selling adulterated ghee at the particular hour of the particular day and it cannot be said that three distinct offences under section 7 of the Act have been committed by the accused and consequently when three separate prose 987 cutions under section 7 of the Act have been launched against the accused and he is convicted in one of the prosecutions the other two prosecutions are barred under section 403 Criminal Procedure Code
But we do not think this decision can be invoked in aid of the contention of the appellant
It is clear from the facts of this case that the three prosecutions against the accused were not for three different transactions of sale constituted by the taking of samples from three lots of tins of ghee but were for three different acts of storing adulterated ghee and it was for this reason that D N Das Gupta J observed that the single act of storing adulterated ghee could not be split up into three different acts according to brands and the launching of three different prosecutions on the ground that three distinct offences have been committed by the accused was not justified or warranted by law
We are not concerned with the correctness or otherwise of this observation as it is not relevant for the purpose of the present case
It is no doubt true that some of the observations made in the judgment seem to support the contention of the appellant that where samples are taken at the same time on the same day from different receptacles kept at the same place as the six cans in the present case were and each of the samples is found adulterated there is only one offence committed by the accused and not as many offences as the number of samples taken by the Food Inspectors
But to the extent to which these observations refer to the offence constituted by the taking of samples we must express our dissent and hold that they do not represent the correct law on the subject
We are therefore of the view that the High Court was right in coming to the conclusion that the sale of each of the samples taken from the six cans constituted a distinct and separate offence and the appellant was liable to be tried for each of the six offences
We accordingly dismiss the appeal
VPS Appeal dismissed


Summary:
Samples of cow s milk were taken by the concerned officers from 6 out of several cans carried by the appellant in a truck and were sent for analysis
Finding the samples adulterated the appellant was prosecuted for an offence punishable under section 16 read with section 7 of the 
Both the trial Court and the first Appellate Court treated the sales of six samples as forming part of the same transaction constituting one single offence
The High Court in revision held that the sale of each sample constituted a distinct and separate offence that the appellant was therefore liable for 6 different offences and remanded the case for re trial of the appellant for 6 offences
Dismissing the appeal to this Court  HELD a The acts prohibited by section 7 include manufacturing for sale storing selling or distributing any adulterated article of food
Hence not only is the act of storing for sale an offence but also the act of selling out of the adulterated article of food so stored
The definition of sale in section 2xiii includes sale for analysis
Therefore where samples are taken for analysis from different receptacles whether at one and the same time or at different times each taking constitutes a distinct and independent sale because each sample would be taken for determining by analysis whether the article of food in a particular receptacle is adulterated or not
The taking of each sample would be necessary and justified because it may be that the article of food in one receptacle is adulterated while in the other it is not or the nature and degree of adulteration may vary from receptacle to receptacle
It is only where samples are taken from the same receptacle at one and the same time or within reasonable proximity of time that it may not be possible to say that the taking of each of those samples constitutes a distinct and separate sale
984 F H 985 B G Fecitt vs Walsh  applied
b In Shankar Lal Agarwalla vs Corporation of Calcutta AIR 1962 Cal
611 the 3 prosecutions against the accused were not for three different transactions of sale constituted by taking samples from three tins of ghee but were for three acts of storing adulterated ghee and so the decision is not relevant
But observations contra therein that the taking of sample from different receptacles at the same time from the same place for analysis constitutes only one offence are incorrect
986 G 987 A D