JUDGMENT

CHINNAPPA REDDY, J.:—Gingelly oil mixed with 15% of groundnut oil was sold as gingelly oil by the respondent to the Food Inspector, Thanjavur Municipality: The defence of the respondent was that he kept the oil in his shop to be sold, not for human consumption, but, for external use. The trial Magistrate did not accept the defence. He convicted him under S. 16 (1) (a) (i) read with S. 2 (1) (a) of the Food Adulteration Act and sentenced him to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 200. On appeal, the learned Sessions Judge accepted the defence of the respondent and acquitted him of the charge. According to the learned Sessions Judge, the respondent could not be convicted unless it was established that the sale of the gingelly oil was for human consumption. The State of Tamil Nadu preferred an appeal to the Madras High Court. The High Court confirmed the order of acquittal. The State of Tamil Nadu has filed this appeal by special leave of this Court. The learned counsel for the State of Tamil Nadu made it clear to us at the hearing that the State was not anxious, at this distance of time (the occurrence was on 26-5-69) to secure a conviction, but was anxious that the legal position should be clarified. We accordingly proceed to do so.

2. Section 16 (1) (a) (i) as it stood at the relevant time was as follows :-

"16. (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 article 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;

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he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees:

Provided that -

(i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub-clause(1) of clause (i) of Sec. 2 or misbranded under sub-clause (k) of clause (ix) of that section; or

(ii) if the offence is under sub-cl. (ii) of clause (a), the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees."

Section 7 is also relevant and it was as follows :-

"7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;

(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health; or

(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder."

3. Food is defined by S. 2 (v) as meaning any article used as food or drink for human consumption other than drugs and water and includes -

"(a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and

(b) any flavouring matter or condiments."

Sale is defined by S. 2 (xiii) as follows :-

"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 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;"

4. Section 16 (1) (a) (i) read with Section 7 (i) prohibits and p