Butter prepared from curd is butter within the meaning of the Prevention of Food Adulteration Act, 1954, and Rule A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules, 1955.

Judgment

SUBBA RAO, J. : This appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay allowing the appeal filed by respondent No. 1 against the acquittal of the appellant by the Judicial Magistrate, First Class, Thana, and convicting him under S. 16(1) read with S. 7(i), of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act), and sentencing him to undergo rigorous imprisonment for two months and to pay a fine of Rs. 250/-.

2. The appellant is the proprietor of a shop at Thana known as the Cottage Industries. He is a dealer in butter. On June 27, 1957, the Food Inspector of the Thana Borough Municipality visited the shop of the appellant and purchased from him some quantity of Khandeshi butter. After purchasing the butter, the Food Inspector notified his intention to the appellant that he was going to get the butter analysed. He divided the butter into three equal parts, put them in three separate bottles and duly sealed the bottles in the presence of two panchas. He gave one of these bottles to the appellant, sent one to the Public Analyst and kept the third with himself. The appellant signed the labels on the bottles and also passed a receipt in favour of the Food Inspector in token of the receipt of one of the bottles and that receipt was signed by the appellant and counter-signed by two panch witnesses.

3. The Public Analyst analysed the butter sent to him and sent his report in due course. In the report it was stated that the butter contained 18.32 per cent, foreign fat, 19.57 per cent moisture and 64.67 per cent. milk fat.

4. On October 5, 1957, the Food Inspector filed a complaint in the Court of the Judicial Magistrate. First Class, Thana, against the appellant. It was alleged therein that the said butter was found to be "adulterated" as defined in S. 2(1)(a) of the Act and that the appellant had committed an offence under S. 16(1)(a) of the Act by selling the adulterated article of food in contravention of S. 7(i) of the Act and the rules made thereunder. The Judicial Magistrate acquitted the appellant on the ground that it had not been proved beyond reasonable doubt that the butter which was purchased from the shop of the appellant was the very same butter which was sent to the Public Anasyst and also for the reason that butter prepared out of curd did not come within the mischief of the definition of the word "butter" in rule A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules). The Food Inspector preferred an appeal against that order of acquittal to the High Court. The High Court held that the conclusion of the learned Judicial Magistrate that the butter purchased from the appellant might have been tampered with before it was sent to the Public Analyst was not based on any evidence on the record. It further held that butter prepared from curds was covered by the definition of the word "butter" given in the relevant rule. It further held that even if the butter prepared out of curds was not butter as defined in the said rule, the appellant would still be liable under S. 2(1)(a) of the Act as it contained foreign fat and, therefore, was an adulterated article of food within the meaning of the said section. In the result it set aside the order of acquittal, convicted the appellant under the Act and sentenced him to rigorous imprisonment for two months and to pay a fine of Rs. 250/-. Hence this appeal.

5. Learned counsel for the appellant raised before us the following points; (1) The High Court went wrong in holding that the appellant had committed an offence under the Act, even though the butter in question was not butter within the meaning of the Rules. (2) Butter prepared from curds is not butter within the meaning of rule A. 11.05 of Appendix B to the Rules. (3) Butter sent to the Public Analyst was not the same butter seized from the appellant. (4) The report of the Public Analyst was vague and, theref