Manohar Prasad, J.

[1] This is an appeal on behalf of the State against the order of acquittal passed by the Sub-Divisional Magistrate, Nuzvid.

[2] The facts which give rise to this appeal are : The respondent is a resident of Nuzvid and was running a grocery shop in D. No. 4/178. On 21-3-.1956. at about 4-30 p.m. the Sanitary Inspector along with the Sanitary Mistry inspected the shop of the accused and found turmeric powder in a tin which was intended for sale. The Sanitary Inspector purchased a sample of it for Re. 0-1-9 and obtained a receipt, Ex. P-l. He divided_ the sample in equal parts and sealed the stuff in three bottles. He gave one bottle to the respondent and sent one sample bottle to the Government analyst and the third to the Court. The Government analyst certified that the sample was adulterated with 25 parts of foreign adulterant and that it also contained 12 parts of lead to a million parts.

The Sanitary Inspector seized the remaining quantity of the termeric powder in the tin and sealed' it in a gunny bag. The respondent was charge-sheeted under Section 16(1) read with Section 7 and Section 2(ix)(a) and Rule 44(h) of the Prevention of Food Adulteration Act 1954. He (respondent) denied the charge and stated that it was intended for extenial application and not for consumption. On behalf of the prosecution only the Food Inspector was examined as P.W. 1. The accused examined himself in defence. On the evidence produced, the Sub-Divisional Magistrate held' that the prosecution evidence was not at nil sufficient to establish the case against the accused. He therefore acquitted the accused. Hence this appeal' on behalf of the State.

[3] It is contended on behalf of the appellant that the Sub-Divisional Magistrate has fallen into an error in holding that no offence was made out against the accused under Section 7. He contends that the evidence produced is sufficient to hold the accused guilty under Section 7, Clause (ii). Reliance was placed on the case of The Public Prosecutor v. Kachimohideen Marakkayar 1948 Mad WN 59 (1) : A.I.R. 1948 Mad 218 (A). He next contended that the Court below has committed an error in holding that no offence was made out under Rule 44.

[4] On behalf of the accused, it is contended first that in order to establish the guilt of the accused, under Section 7, Clause (ii) it is necessary to prove that the article misbranded was an article of food and also that it was an imitation or a substitute for an article of food or that it resembled it in a manner likely to deceive which, he contends, has not been proved and the Court below has rightly held that no offence was committed. Reliance was placed on the cases of K. P. Gopalan v. Emperor 1936 Mad WN 750 (B), In re K. S. Ambi Iyer A.I.R. 1939 Mad 375 (C), Akkanna Chetty v. The Crown Prosecutor 1931 Mad WN 1045 (D), Emperor v. Puran Mai 49 Cri LT 686 : A.I.R. 1948 All 403 (E), State v. Bharat Shankar and Suleman Shamji v. Emperor 45 Cri LJ 92 : A.I.R. 1943 Bom 445 (G). Adverting to the argument relating to Rule 44, it is contended that there is no evidence to show that the accused sold these articles as articles of food and unless it is so proved the accused cannot be held guilty under said rule.

[5] The accused has been charged under Rule 44 (h) and Section 7 of the Prevention ct Food Adulteration Act.

[6] Rule No. 44 reads:

Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell

h) Turmeric containing any foreign substance.

[7] It would follow from the above provision that selling of turmeric containing any foreign substance is an offence. 'Sale' has been defined in Section 2 (xiii) in the following words:

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,