Judgment

VAIDIALINGAM, J. - This appeal, by special leave, by the Food Inspector, Calicut Corporation, is directed against the judgment and order dated June 26, 1968 of the Kerala High Court in Criminal Appeal No. 113 of1968 confirming the acquittal of the respondents of an one under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (Act No. 37 of 1954) (hereinafter to be referred to as the Act).

2. The first respondent is the Manager and the second respondent, his wife, are the owner and licencee of a tea stall in the premises No. 4/777 Customs Road, Calicut. They were accused Nos. 1 and 2 respectively. On November 17, 1965 at about 9.45 A. M. the Food Inspector Calicut Corporation, purchased from the first respondent 600 grams of sugar for a price of 78 paise for analysis from the stock of sugar kept in the premises to be used in the preparation of tea sold to customers in the said tea stall run by the second respondent under the licence issued by the Corporation. The quantity of sugar so purchased was sampled as per the rules in the presence of the first accuse and the witnesses. One portion of the sample was sent to the Public Analyst for analysis. The Analyst in his report Ex P. 3 dated December 28, 1965 has carried that the sample contained artificial sweetener saccharin equivalent to about seven per cent of cane sugar and therefore it was adulterated. In fact the analysis is as follows :

"Ash 0.02 per cent

Total sugar

as cane sugar 96.00 per cent

Sacchrin 14.0 mgs. per 100 gms."

3. On the basis of this report the Food Inspector filed on March 21, 1966 a complaint against the two accused in the Court of the District Magistrate (Judicial), Calicut. After setting out the necessary facts and the report of the Public Analyst, the complaint alleged that the sale of such sub-standard food which was adulterated is prohibited under S. 7 read with item A.07.01 in appendix to the Rules framed under the Act and therefore, it was an offence. There is a reference to the conviction of the first accused on prior occasions. It is not necessary for us now to refer it.

4. Both the accused were charged of an offence under S. 16 (1) (a) (i) of the Act for having sold on November17, 1965, 600 gm of sugar for a price of 78 prise to the Food Inspector from the tea stall and which sugar was found to be adulted by the Public Analyst.

5. Both the accused pleaded not guilty and even denied having said sugar to the Food Inspector.

6. The learned District Magistrate recorded the following findings. The "sugar" is an article of food as defined under S. 2 (v) of the Act the Food Inspector purchased sugar from the tea stall of the accused sampled it then and there and handed over to the find accused; there was a sale as defined in the Act of sugar to the Food Inspector by the first accused the purchase and the sampling by the Food Inspector were done in strict compliance with the provisions of the Act. The report of the Public Analyst establishes that the sugar purchased from the tea stall of the accused was adulterated. But in order to hold that the accused have committed an offence, it must be established that the accused were selling sugar as such in the tea stall which is not the fact in this case On the other hand, the accused were selling tea and the minor was kept only for the purpose of being mixed with tea which was sold to the customer and the Food Inspector has clearly admitted that sugar as such is not sold in the tea stall of the accused. Inasmuch as sugar was not kept for sale by the accused, they are not guilty of any of fence. In this view, both the accused were acquitted under S. 258 (1) of the Code of Criminal Procedure.

7. The State filled an appeal before the Kerala High Court challenging the acquittal of the respondents. The High Court agreed with the findings of the District Magistrate that there was a sole as defined in the Act of sugar to the Food Inspector by the accused on November 11, 1965 and the said article