Manohar Prasad, J.
1. This is an appeal on behalf of the State against the order of acquittal passed by the Sub-Divisional Magistrate, Nuzvid.
2. The facts which give rise to this appeal are : The respondent is a resident of Nuzvid and was running a grocery shop in D. No. 4/178. On 21-3-.1956. at about 4-30 p.m. the Sanitary Inspector along with the Sanitary Mistry inspected the shop of the accused and found turmeric powder in a tin which was intended for sale. The Sanitary Inspector purchased a sample of it for Re. 0-1-9 and obtained a receipt, Ex. P-l. He divided_ the sample in equal parts and sealed the stuff in three bottles. He gave one bottle to the respondent and sent one sample bottle to the Government analyst and the third to the Court. The Government analyst certified that the sample was adulterated with 25 parts of foreign adulterant and that it also contained 12 parts of lead to a million parts.
The Sanitary Inspector seized the remaining quantity of the termeric powder in the tin and sealed' it in a gunny bag. The respondent was charge-sheeted under Section 16(1) read with Section 7 and Section 2(ix)(a) and Rule 44(h) of the Prevention of Food Adulteration Act 1954. He (respondent) denied the charge and stated that it was intended for extenial application and not for consumption. On behalf of the prosecution only the Food Inspector was examined as P.W. 1. The accused examined himself in defence. On the evidence produced, the Sub-Divisional Magistrate held' that the prosecution evidence was not at nil sufficient to establish the case against the accused. He therefore acquitted the accused. Hence this appeal' on behalf of the State.
3. It is contended on behalf of the appellant that the Sub-Divisional Magistrate has fallen into an error in holding that no offence was made out against the accused under Section 7. He contends that the evidence produced is sufficient to hold the accused guilty under Section 7, Clause (ii). Reliance was placed on the case of The Public Prosecutor v. Kachimohideen Marakkayar 1948 Mad WN 59 (1) : A.I.R. 1948 Mad 218 (A). He next contended that the Court below has committed an error in holding that no offence was made out under Rule 44.
4. On behalf of the accused, it is contended first that in order to establish the guilt of the accused, under Section 7, Clause (ii) it is necessary to prove that the article misbranded was an article of food and also that it was an imitation or a substitute for an article of food or that it resembled it in a manner likely to deceive which, he contends, has not been proved and the Court below has rightly held that no offence was committed. Reliance was placed on the cases of K. P. Gopalan v. Emperor 1936 Mad WN 750 (B), In re K. S. Ambi Iyer A.I.R. 1939 Mad 375 (C), Akkanna Chetty v. The Crown Prosecutor 1931 Mad WN 1045 (D), Emperor v. Puran Mai 49 Cri LT 686 : A.I.R. 1948 All 403 (E), State v. Bharat Shankar : AIR1954Bom306 and Suleman Shamji v. Emperor 45 Cri LJ 92 : A.I.R. 1943 Bom 445 (G). Adverting to the argument relating to Rule 44, it is contended that there is no evidence to show that the accused sold these articles as articles of food and unless it is so proved the accused cannot be held guilty under said rule.
5. The accused has been charged under Rule 44 (h) and Section 7 of the Prevention ct Food Adulteration Act.
6. Rule No. 44 reads:
Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell
h) Turmeric containing any foreign substance.
7. It would follow from the above provision that selling of turmeric containing any foreign substance is an offence. 'Sale' has been defined in Section2(ix)(a) in the following words:
With its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale of having in possession for sale of any such article, and includes also an attempt to sell any such article.
From the said definition of 'sale' it would appear that it should be a sale of any article of food. The Food Inspector admitted that turmeric powder useful for external use only is not an article of food. The question to be seen is whether in the instant case, the accused sold the powder found in his possession as an article of food. His contention is that he sold it for external use and not as an article of food. Ex. D-l which is a copy of the receipt even to the Food Inspector clearly shows that he sold the stuff as turmeric powder useful for external use only. Ex. D-2 also shows that he purchased it from one S. Narasimharao of Vijayawada as turmeric powder useful for external use only. What is contended on behalf of the prosecution is that since there was no 'label to show that the stuff was intended for external use only, it has to be presumed that it was meant for human consumption and it is therefore an article of food.
I am not inclined to accept this argument. No doubt, selling turmeric powder, which is an article of food, containing any foreign substance is an offence punishable under Section 16(1) read with Section 7 and Rule 44 (h) of the Rules framed under the Act. But according to Section2(ix)(a), an article of food shall be deemed to be misbranded if it is an imitation or a substitute for an article of food or that it resembled it in a manner likely to deceive. There is no evidence on behalf of the prosecution to show that the accused sold this as an article of food. In the absence of any such evidence and in the face of the positive evidence of the accused stated earlier, it is very difficult to hold the accused guilty under Rule 44(h). The next question that has to be seen is whether the accused can be held guilty under Section 7 of the Act.
8. Section 7 reads:
No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority with a view to preventing the outbreak or spread or infectious diseases; or
v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.
The learned Public Prosecutor confined his argument to Section 7(ii) and contended that the evidence produced sufficiently establishes the guilt of the accused under the said provision. Section 7 refers to the selling or storing or distributing any misbranded food. 'Misbranded' has been defined in Section 2(ix)(a) in the following words:
If it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is, not plainly and conspicuously labelled so as to indicate its true character.
It would follow from the above that in order to bring the case under this provision, the prosecution has got to prove that the article seized was an imitation of, or is a substitute for, or that it resembled in a manner likely to deceive, another article of food under the name of which it was sold. As stated earlier, it is admitted by the Food Inspector that turmeric useful for external purposes is not an article of food. There is absolutely no evidence to show that the article seized is an imitation or is a substitute for such an article or that it resembles another article of food under the name of which it was sold.
The learned Public Prosecutor placed his reliance on the report of the analyst. The analyst has only given the analysis of the contents. This, in my opinion, would not go to prove that it was an imitation or a substitute. In this view of the matter, I do not wish to go into a detailed discussion of the authorities cited on behalf of the parties. I do not find any substantial and compelling reasons to interfere with the order of acquittal.
9. The appeal is therefore dismissed.