( 1 ) STATE being aggrieved by an order of acquittal recorded by judicial Magistrate, First Class, Dahod on 12-11-1990 in Criminal Case No. 3153 of 1986 wherein the accused were tried for an offence under Sec. 7 of the Prevention of Food Adulteration Act punishable under Sec. 16 (1 ) (a) (i) of the Act. has preferred this appeal.

( 2 ) ). Pacts leading to the present prosecution as it emerges from the record are as under :2. 1 Pravinchandra Manilal, PW 1 serving as a Food Inspector visited the shop of respondent No. 1 (hereinafter referred to as original accused No. 1) on 26-5-1986 at about 4-45 p. m. , and in the presence of panchas collected samples of peppermint having brand name "super China Goli". After dividing the sample into three equal parts forwarded the samples in accordance with the provisions contained in the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") and Prevention of Food Adulteration Rules (hereinafter referred to as "the Rules" ). One sample was forwarded to the Public Analyst for analysis, who. on analysis found that the sample of food article was adulterated. From the analysis report forwarded by the Public Analyst, Exh. 25, it appears that the sample contained Metanil Yellow (a prohibited colour) over and above Sunset Yellow, FCF and Tratrzin Coaltar. In confectionery use of food colour is permitted but only certain coaltars, having the colour Index and Chemical class as prescribed in Rule 28 of the Rules are permitted. In view of the Report, Food Inspector filed a complaint against the accused No. 1. the vendor, and accused No. 2 alleged to be the manufacturer, after obtaining a consent. At the trial, accused pleaded not guilty and contended that they are entirely innocent. The trial Court, on the grounds that the accused No. 1 has failed to prove warranty, that the samples were collected in violation of the Rules, that Panchas have turned hostile, and, that the consent is defective, acquitted the accused. I. Defence of Warranty :

( 3 ) ). In the instant case, it is necessary first to consider the defence of warranty. Initially, the case of the accused No. 1 was that he was dealing on behalf of the accused No. 2, and, therefore, he signed the document Exh. 16 and notice under rule 12 of the Rules on behalf of the accused No. 2. Cash memo Exh. 17 was issued to the Food Inspector which signed by accused No. I on behalf of accused No. 2. It is in view of this the Food Inspector, on 5-12-1987 addressed a letter Exh. 18 to accused No. 2. It is the case of the accused No. I that he purchased the peppermint, i. e. , the article of food, the sample of which was collected by the Food Inspector for analysis, from Vinod Sugar Works, on 15-5-1986, Vide Bill Ex. 81. on payment of Rs. 170. 00 at the rate of Rs. 17. 00 per 3 kgs. , (in all 30 kgs. ).

( 4 ) ). Mr. Mehta, appearing for the accused No. 2 pointed out from the bill Exh. 81 which is produced by accused No. 1 that the buyer was Burhani Peppermint Stores and not the accused No. 1. He further submitted that in the bill only peppermint is mentioned and not any specific brand of Peppermint such as "super China Goli". He further submitted that the accused No. 1 has not entered the box to prove the warranty. No evidence whatsoever is produced to corroborate the say. Looking to the bill. according to his submission, the peppermint described in the bill was supplied to Burhani Peppermint Stores and not to the accused No. 1. If that be so, the accused No. 1 has not proved his defence of warranty in accordance with law. Merely because at the initial stage he has come out with the bill and that he has stated that he is dealing on behalf of accused No. 2 would not be sufficient to hold accused No. 2 guilty of the offence for which he was charged. Learned Addl. Public prosecutor was not in a position to point out any material from the record from which it can be said that the accused No. 1 has satisfactorily established the defe