A sale of an article of food for analysis is considered a sale under the Prevention of Food Adulteration Act, and the person from whom the article of food is purchased need not be a dealer in that article as such.

1. 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 of 1968 confirming the acquittal of the respondents of an offence under S.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, 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 first accused and the witnesses. One portion of the sample was sent to the Public Analyst for analysis. The Analyst in bis report Ex. P. 3 dated December 28, 1965 has certified that the sample contained artificial sweetner saccharin equivalent to about seven percent 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 Saccharin 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 November 17, 1965, 600 gm. of sugar for a price of 78 paise to the Food Inspector from the tea stall and which sugar was found to be adulterated by the Public Analyst.

5. Both the accused pleaded not guilty and even denied having sold 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 first 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 In-5pector 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 as 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 sugar was kept only for the purpose of being mixed with tea which was sold to the customers and the Food Inspector has clearly admitted that sugar as such is not sold in the tea stall of accused. Inasmuch as sugar was not kept for sale by the accused, they are not guilty of any offence. In this view, both the accused were acquitted under S.258(1) of the Code of Criminal Procedure.

7. The State filed 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 sale as defined in the Act of sugar to the Food Inspector by the accused on November 17,1965 and the said article was adulterated a