M. C. DESAI, J.

( 1 ) THE Applicant City Board of Mussorrie prosecuted the opposite party Kishan Lal for the offence of Section 16 of the Prevention of Food Adulteration Act for selling adulterated bee honey. It has been found as a matter of fact that on 26-9-1956 the opposite party, who is a dealer in bee honey sold three sealed bottles each bearing the label "pure Bee Honey" to a Food inspector, and on analysis the honey in each bottle was found to be adulterated. The opposite-party pleading not guilty contended that he had purchased the bottles from the himachal Drugs Coy. and sold them in the same condition. He produced a voucher given to him by the Himachal Drugs Coy, in which the article has been described as bee honey. The trial Court held that the label "pure Bee Honey" put on each bottle by the vendors amounted to a warranty and that the opposite-party having sold the bottles in the same condition in which he had purchased them from the vendors was not guilty and acquitted him. The applicant applied for revision of the judgment of acquittal to the Sessions Judge, Dehra dun, who has referred the case to this Court with the recommendation that the acquittal be set aside and the opposite-party be ordered to be retried.

( 2 ) THE learned Sessions Judge is right in observing that the acquittal of the opposite party was wrong, that the trial Court had not followed the procedure correctly and that though the vendors might have represented to the opposite party that the bottles contained pure bee honey it did not amount to their giving the opposite party a warranty that it was and that consequently the opposite party was not entitled to be acquitted. There is a distinction between a representation and a warranty. The trial Court did not consider the law on the subject and hazarded the opinion, that the vendors gave a warranty to the opposite party that the bottles contained pure bee honey, without reference to any law, either statutory or judge-made.

( 3 ) THOUGH the acquittal was unjustified, I find that it cannot be interfered with by me in revision because of the bar imposed by Section 439 (5 ). Cr. P. Code, which reads as follows : "where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. " prior to 1956 no appeal by the complainant lay at all in any circumstance from an order of acquittal; with effect from 1-1-1956 the law has been amended and Section 417 (3) has been enacted giving a right of appeal to a complainant against an order of acquittal passed in a case instituted on his complaint provided that the High Court on an application before it grants special leave to appeal. The question that arises is whether proceeding by way of revision of an order of acquittal passed in a case instituted upon a complaint can be entertained at the instance of the complainant who has not filed an appeal from the order as permitted under Section 417 (3 ). I have no hesitation in answering the question in the negative.

( 4 ) IT was contended on behalf of the applicant that the right of appeal conferred by Section 417 (3) is not absolute but conditional upon the complainants succeeding in obtaining special leave to appeal from the High Court and that what is meant by "where under this Code an appeal lies" is "where under this Code an appeal lies as a matter of absolute right or unconditionally. " No words can be added to Sub-section (5) to Section 439, and it cannot be read as if it contained "where under this Code an appeal lies unconditionally" or "where under this Code an appeal lies as a matter of absolute right". What is meant is that where an appeal can be filed under this Code, even if it can be filed subject to fulfilment of a condition, it is a case covered by the sub-section. An appeal that can be filed only on the fulfilment of a condition, is as much an appeal that lies under the Code as an appeal that can be f