Judgment

MATHEW, J. :- This appeal, by special leave, is against a judgment of the High Court of Allahabad by which it restored the order of the Magistrate convicting the appellant of an offence under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (Act 37 of 1964), hereinafter called the Act , and sentencing him to undergo one year s rigorous imprisonment and pay a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months, after reversing the order passed by the Sessions Judge in appeal acquitting him of the offence.

2. On June 13, 1963, Head Constable Baboo Khan was on petrol duty. He happened to come to the Chakki of one Abdul Essaq. There he found a heap of Shakkar and some labourers mixing shelkhari in it with spades. He went to the police station to inform the Station Officer about it but the Station Officer was not there. He then met the Senitary Inspector and informed him about what he saw at the Chakki. The Sanitary Inspector accompanied by the Food Inspector proceeded to the Chakki and there they found the labourers mixing Shalkhari with Shakkar. The stock of Shakkar belonged to the appellant. The Food Inspector purchased 11/2 seers of Shakkar from the appellant by way of sample after paying its price. He divided the sample into three parts, gave one to the appellant and retained the other two with him. One of the samples retained was sent to the Public Analyst for examination. The Analyst found, in his report dated July 11, 1963, that the shakkar contained 2.48 moisture 72.71 total sugar, 64.71 sucrose 17% extraneous matter insoluble in water. According to him the extraneous matter insoluble in water, total ash and ash insoluble in Hydrochloric acid exceeded by 15.0% 10.1% and 13.5% respectively as against the maximum prescribed standards of 2.0%, 6.0% and 0.5% respectively.

3. On the basis of a coomplaint filed by the Food Inspector of the Municipal Board, Saharanpur, the Magistrate who tried the appellant for an offence under Section 16 read with Section 7 of the Act came to the conclusion that the appellant had stored the Shakkar for sale, that it was adulterated and that he was guilty of the offence and convicted and sentenced him as aforesaid.

4. The appellant filed an appeal against the order before the Sessions Judge. The Sessions Judge acquitted him of the offence for the reason that the prosecution had not proved that the Shakkar stored by the appellant was for sale. He said that the appellant was mixing extraneous matter with the Shakkar for converting it into Rab and as such it cannot be said that the Shakkar was stored for sale by the appellant. He also said that no standard of quality was prescribed by the rules framed under the Act for Shakkar, that as an article of food, Shakkar was neither gur nor jaggery and that the sale of Shakkar to the Food Inspector by the appellant was under duress and was not a sale in the eye of the law.

5. The Municipal Board filed an appeal against the order to the High Court. The High Court held that Shakkar is same as jaggery , that standard of quality has been prescribed by the rules framed under the Act for jaggery, that the Shakkar in question was adulterated that the sample purchased by the Food Inspector for the purpose of analysis amounted to sale within the meaning of Section 2 (xiii) of the Act, the Act to get the sample even if the Shakkar was stored for being manufactured into Rab and not for sale and restored the order of the Magistrate convicting and sentencing the appellant as aforesaid.

6. The first contention on behalf of the appellant was that Shakkar is not jaggery , and since no standard of quality has been prescribed for Shakkar under the rules framed under the Act, the Shakkar was not adulterated.

7. We find it difficult to accept the contention that Shakkar is not jaggery. Para A. 07, 05 of Appendix B of the Rules reads :

"Gur or Jaggery means the product obtaine