K.T. Koshi, C.J.
1. This is an appeal filed with the sanction of this Court under Section 417(3), Criminal Procedure Code against the order of acquittal by the learned Sub Divisional Magistrate, Alleppey made in C, C. 104/1937 on his tile. In that case the Food Inspector of Alleppey Municipal Council preferred a complaint against the accused, the respondent herein, under Sections 27(i) and 16(1)(a) of the Prevention of Food Adulteration Act (Central Act 37 of 1954). The facts alleged in the complaint were that the accused, a dealer in black-gram flour and groundnuts was found to have stored and exposed for sale in his shop at Puthenangadi, Alleppey, about 48 maunds of some article purporting to be black-gram flour and that on suspicion the complainant purchased for sample 1 1/2 Lbs, from one among the 6 bags found there and that on chemical analysis by the public Analyst the sample purchased was found to contain 95.9 per cent Calcium Carbonate and 3.6 per cent sand with no black-gram flour in it at all. Besides the sample purchased by him the complainant also took possession of all the 6 bags found there supposed to contain black-gram flour. The learned Sub Divisional Magistrate found that the sample was purchased by the complainant from the accused's shop and that the 6 bags alleged to have been taken into custody were also taken from there. His further finding however was the sample or the other remaining 6 bags did not constitute food and there-fore no prosecution under section 7(i) of the Prevention of Food Adulteration Act for selling or storing adulterated food would lie against the accused. The accused was therefore acquitted. Hence this appeal by the complainant, the Food Inspector.
2. The prosecution examined 4 witnesses including the complainant (P.W. 1) to prove its case and filed Exts. P-1 to P.6. P.Ws, 2 to 4 are persons who were present at the time the articles were-taken into custody and they have all attested the Mahazar Ext. P-3. Ext. P-2 is the intimation given by the complainant to the accused regarding the purpose of taking the sample, Ext. P-4 is the report of the Public Analyst, Ext. P-l is the Municipal Commissioner's authorisation to the complainant to file the case, Ext. P-5 is a notice accepted by the accused and Ext. P-6, the bill for the sale of 11/2 Lbs. of black-gram (the sample) by the accused. The defence examined 2 witnesses of whom D.W. 2 was given up as hostile and D.W. 1, a Mill employee, gave evidence to the effect that the accused used to get black-gram polished in his employer's place and in polishing Mack-gram powered granite was used.
3. The lower court formulated 3 points as arising for decision and they were: (1) Whether the black-gram flour was taken from the shop of the accused; (2) Whether it was adulterated; and (3) What is that adequate punishment to be awarded to the accused. On point (1) it said : The evidence of P. Ws. 1 to 4 and the exhibits filed clearly shows that the article was seized from the shop of accused. Nothing has been brought out in cross-examination to discredit the evidence of the prosecution witnesses. Exts. P-2, P-3 and P-5 are signed by the accused thereby admitting the contents therein. Ext. P-6 is the bill passed on to P.W. 1 for purchase of samples. I therefore find this point! in favour of the prosecution.' On point (2) its observation were:-- 'From Ext. P-4, the certificate of the Analyst, it is clear that the sample contained' no organic matter at all instead it contained 95.9 per cent Calcium Carbonate and 3.6 per cent of sand. Hence it cannot be classified under adulterated food for it is no food at all. It is totally inorganic matter. I therefore find this point in favour of the defence.' In view of the decision on point (2) Point (3) did not arise for consideration and the accused was acquitted.
4. In the light of what the lower court has stated in discussing Point (1) a conviction under section 7(i) read with section 16(1)(a) should have followed as a matter of course. If the articles stored in the accused's shop out of which 1 1/2 Lbs. were sold to P.W. 1 did not constitute food as defined in section 2(v) as pointed out in the memorandum of appeal and in the argument before us it cannot the doubted for a moment that if P.W. 1 and the other witnesses examined on the side of the prosecution are believed and the exhibits filed in the case are taken at their face value, the accused had stored in his shop 'misbranded food', The term 'misbranded' is defined in section 2(ix). Clause (a) to section 2(ix) would apply in terms to the article recovered if the testimony of the above witnesses is believed. This obvious error i.e., the failure to convict the accused in spite of the findings under Point (1) formulated for decision probably accounts for the Municipality preferring this appeal.
5. Whatever that be we cannot, in the circumstances of the case, convict the accused before us. There is no respectable or reliable evidence on the side of the prosecution to show what the remaining 5 bags taken into custody contained. No sample was taken out of any of those bags for analysis. Though Ext. P-6, the bill for the sale of the sample showed that it was sold as black-gram, itis impossible to believe that the accused or any person, for that matter would have sold an article constituted of 95.9 per cent Calcium. Carbonate and 3.6 per cent sand as black-gram flour. One can understand black-gram flour being adulteratedwith a large quantity of any of the articles aforesaid, but to say that something would be sold as black-gram flour which contained no particle of black-gram flour is something which we cannot accept. Ext. P-6 is alleged to be in the handwriting of a clerk of the accused. But that clerk has not been examined and we do not now know who actually wrote it or when. Ext. P-3, the Mahazar is not attested by any of the neighbouring shop keepers or by any employee of the Excise Range Office which is just opposite to the accused's shop. A careful look at Ext. P^G would suggest that the 2 signatures of the accused appearing in it were put before the Mahazar was engrossed on the printed form. The signatures which ought to appear at the foot of certain entries are seen at the top of those entries or vice versa. P.Ws. 2 to 4 are absolutely men, of no means like reksha wallas,' head-load workers etc. The Food Inspector is alleged to have inspected the accused's shop at 12 in the noon (16-3-1957) and if is not known why no respectable neighbourwas made to attest Ext. P-3 or called as a witness. It would appear that Calcium Carbonate with sand mixed is used by some people for decorating the floor and it may well be that the accused had kept the article for sale for that purpose. Or it may even be that the contents of the bags out of which the sample was taken were kept there for purposes of adulterating black-gram flour of which the accused is a dealer. That however is not the prosecutioncase. If it was kept for purposes of adulteration the accused could have been brought within the mischief of section 16(1)(d). There is no case like that in the charge.
6. On the whole on a dispassionate consideration of all the facts and circumstances of the case we cannot help thinking that this is either a case of honest bungling or of calculated mischief and 'foul play. In the absence of evidence regarding the contents of the other 5 bags and in the absence of reliable evidence that the sample was given as black-gram flour, we do not find our way to accept the prosecution case and to set aside the orderof acquittal or convict the accused. The appealtherefore fails and we dismiss it.