JUDGMENT

Roy, J. - A reference has been made by the learned Additional Sessions Judge of Mathura recommending that the conviction of Chittarmal u/s 4 of the U.P. Prevention of Adulteration Act (No. VI of 1912) be set aside and the fine of Rs. 150 imposed upon him by the learned Magistrate of Mathura be refunded to him.

2. Chittarmal runs a shop at Farrah. The provisions of the U.P. Prevention of Adulteration Act (No. VI of 1912) have been extended in respect of all articles of food to the town of Farrah u/s 1, Sub-Sex. (2) and (3) of the said Act by Notification No 8/XVI (B.H.) 245 published in the U.P. Gazette, dated the 26th of January, 1946, Part I, page 36. The shop of Chittarmal was raided by Sanitary Inspector Kuber Singh on the 27th of June, 1952. Chittarmal bad exposed for sale catechu or katha at his shop. Kuber Singh demanded a sample of katha on payment of price. He paid the price and obtained the katha on the basis of a receipt Ex. P-3. The katha was sampled out into three parts, one part was given to Chittarmal, the other part was sent to the Chemical Analyst, and the third part was retained by the Sanitary Inspector and submitted to the Medical Officer of Health. All the three packets were sealed in accordance with law. The Chemical Analyst upon an examination of the katha reported that "it was adulterated and it contained 25 per cent of extraneous inorganic matter over and above the permissible limit". When this report was received necessary sanction for the prosecution of Chittarmal was obtained and he was prosecuted and convicted in the manner stated above.

3. Chittarmal pleaded not guilty. His contention was that the katha was not edible katha, but was meant to be used for colouring purposes and it was sold to the Sanitary Inspector as such. Admittedly there was no sign board at the shop, nor was there any label distinctly and legibly written or printed on or with the article to indicate that the katha which was being sold at the shop was not edible katha but was katha meant for colouring purposes only. In the receipt Ex. P-3 evidencing the sale it was not stated by Chittarmal that the katha that was sold was katha meant for colouring purpose only. The receipt stated that it was inferior quality of katha.

4. Both the courts below upon a consideration of the evidence believed the prosecution case and disbelieved the defence version that Chittarmal was selling the katha only for colouring purposes or that he sold it to Kuber Singh after having told him that it was meant for colouring purposes only. The learned Magistrate, upon a consideration of the report of the Chemical Analyst, came to the conclusion that Chittarmal rendered himself liable to the penalty provided by Section 4 of the Prevention of Adulteration Act. On the other hand, the learned Additional Sessions Judge has been of the view that katha does not come within the purview of "food" as enunciated in S. 2 of the Prevention of Adulteration Act. He has been further of the opinion that since the proviso to Section 4 of the Act says that no article shall be deemed to have been sold to the prejudice of the purchaser where in the process of production, preparation or conveyance of such article of food or drug some extraneous substance has unavoidably become intermixed therewith, and since the 25 per cent, of extraneous matter found by the Chemical Analyst might be bark of the tree or wax or oil or some other substance which unavoidably became intermixed during the process of preparation, boiling or solidification and since the prosecution had not given definite evidence to indicate that the requisite compositions of katha did not exist in the sample in question, it would be difficult to hold that the sample was adulterated katha.

5. After giving my anxious and careful consideration to the viewpoint of the learned Additional Sessions Judge I am of opinion that both his contentions are wrong. Under the U.P. Prevention of Adulteration Act (No. VI of 1912) food h