( 1 ) THIS is an appeal by the Municipal Board, Lucknow. It is directed against an order of acquittal of one Shyam Behari passed by Sri B. B. Misra, Civil and Sessions Judge, Lucknow.

( 2 ) THE respondent Shyam Behari was prosecuted for an offence under Section 7 read with section 16 of the Prevention of Food Adulteration Act (Act 37 of 1954) 1954. He was convicted by the trial Court and sentenced to pay a fine of Rs. 600/- or "in the alternative, to undergo four months simple imprisonment. On appeal he was acquitted by the learned Civil and Sessions judge, Lucknow. Dissatisfied with the said judgment, this appeal has been filed by the Municipal board, Lucknow, against the said order of acquittal.

( 3 ) SHYAM Behari is admittedly the owner and proprietor of a milk shop situate at Gwyane Road, lucknow. One Ram Lal used to work as his servant at this shop. On the 15th of September, 1955, Sri O. P. Mehrotra, Food Inspector, paid a visit to this shop in the morning at about! 8. 30 a. M. He purchased half a seer of milk from Ram Lal and paid-/4/-as its price. He took this milk in three bottles. These bottles were duly packed, corked, sealed and labelled in the presence of the witnesses, Sri K. N. Agarwal, Sankata Prasad and Bhagwan Din, who were present at the shop from the beginning. In the meantime Shyam Behari who was upstairs came down. On his appearance Sri Mehrotra handed over a notice to him. This notice is Ex. P (1), Shyam Behari signed this notice. The original of the notice was also signed by the witnesses. Two sealed sample bottles were sent to the office of the Medical Officer of Health. The Medical Officer of Health sent one sample bottle to the Public Analyst. The Public Analyst sent his report Ex. P (2 ). This report showed that the sample of milk sent to him contained 19% added water and was adulterated. Thereafter, a complaint was submitted against Shyam Behari by the Medical Officer of Health on behalf of the municipal Board, Lucknow. The complaint was against Shyam Bebari as well as Ram Lal his servant. Ram Lal, however, could not be traced. Shyam Behari was the only person against whom the prosecution proceeded.

( 4 ) THE acquittal of the respondent in the present case was made by the lower appellate court on two grounds. The first ground was that no examination of the respondent was made under section 342 of the Code of Criminal Procedure. On this point the lower appellate court appears to have ignored the fact that there is on record an examination of Shyam Behari under Section 342 of the Code of Criminal Procedure. He was put detailed questions on matters appearing in evidence against him. He admitted that the shop of milk belonged to him. He further admitted that Earn Lal was his servant. He also admitted in his statement that the notice Ex. P (1) bore his signature. He also admitted that the sample of milk was taken from a Karhai of his shop. He denied the fact that the milk was adulterated. Under the above circumstances, we are of opinion that the acquittal order cannot be sustained on the ground that no examination of the accused under Section 342 of the Code of Criminal Procedure was done.

( 5 ) THE second ground for acquitting the respondent was that the person who had committed the offence was his servant Ram Lal, and Shyam Behari, being the proprietor, could not have been convicted. This ground taken by the learned lower appellate court also appears to be clearly untenable. Section 7 of the Prevention o Food Adulteration Act, 1954 (Act 37 of 1954) lays down as follows:

"no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-- (a) any adulterated food;. . . . . . . . . . . "

Under the above provision it is clear that not only the person who actually sells the adulterated food is prohibited from doing this act, but also any person on whose behalf the food is sold. In this particular case Shyam Behari was admittedly the proprietor of the shop