Order.- This revision petition is directed by the accused in C.C. No. 196 of 1976 on the file of the Sub-Divisional Judicial Magistrate. Erode against the judgment made in Criminal Appeal No. 295 of 1976 on the file of the Court of Session, Coimbatore East Division, confirming the conviction under section 16(1)(b) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the sentence of rigorous imprisonment for a period of six months, passed by the trial Magistrate.

2. The facts of the case, which led to the prosecution, are as follows: On 3rd March, 1976, at about 6 p.m., near the Bus Stand at Perundurai, the revision-petitioner-accused brought 50 litres of milk in a can on a cycle, to be supplied to the tea shop of P.W. 2. The Food Inspector of Perundurai Town Panchayat, examined as P.W. 1, demanded’ the accused to give a sample of milk for the purpose of analysis; but the accused, without giving the sample to P.W. 1, went inside the tea shop with the milk can and poured the milk into a vessel kept inside the shop, in which milk had already been stored (apparently purchased from some other milk vendors). Thereafter, the accused placed the empty can in front of the tea-shop of P.W. 2 and left that place. P.W. 1 narrates the entire incident and states that he has been prevented from taking sample from the accused. The evidence of P.W. 1 is amply corroborated by P.W. 2, who is the tea-shop-owner. M.O. 1 is the empty can seized by P.W. 1 from the tea stall.

3. The accused, when questioned under section 313, Criminal Procedure Code denied the occurrence. The trial Magistrate, on a consideration of the entire facts and the recorded evidence, found that the accused has committed an offence punishable under section 16(1)(b) of the Act and consequently convicted him thereunder and sentenced him as aforementioned. Aggrieved by the judgment of the trial Court, the accused preferred an appeal before the lower appellate Court. In the memorandum of grounds in the said appeal, the accused challenged the judgment of the trial Court on the grounds that the evidence of P.Ws. 1 and 2 are contradictory in all material particulars, that there is no explanation for not obtaining the attestation by two independent persons from the busy locality wherein the tea-shop is situate, that the trial Court failed to note that no contemporaneous record was made at the time of the seizure of M.O. 1, and that there is no evidence to show that the accused brought the milk for the purpose of sale. During the course of the hearing of the appeal, learned Counsel appearing for the appellant therein (revision-petitioner) made an endorsement stating: “The appellant confines his appeal with reference to sentence only”. Obviously, the conviction has not been canvassed before the Lower Appellate Court. However, the lower appellate Court, in paragraph 5 of its judgment, has observed:

“In view of this endorsement and as the evidence of P.Ws. 1 and 2 is acceptable, the finding of the accused guilty and the conviction passed by the lower Court have to be upheld.”

Then, after considering the submission made by the learned Counsel on the question of sentence, the lower appellate Court agreed with the view taken by the trial Court and thought it fit’ to confirm the sentence passed by the trial Court and consequently dismissed the appeal. Hence this revision petition.

4. In the present revision petition, Mr. Sundaranandam, learned Counsel appearing for the petitioner, raises two contentions, viz.,

(1) That the judgment of the lower appellate Court confirming the conviction without independently going into and finding the presence of the necessary ingredients constituting the alleged offence irrespective of the question whether the conviction was challenged or not, amounts to gross irregularity in the exercise of its appellate jurisdiction, and hence its judgment has to be set aside.

(2) The ingredients necessary to constitute an offence under section 16(1)(

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