Kuppuswami Ayyar, J.
1. The petitioner was convicted by the Second Presidency Magistrate of Madras for an offence punishable under Section 5(1)(a) and (b), Madras Prevention of Adulteration Act, read with Rules 28 and 29, Madras Prevention of Adulteration Rules of 1932 and sentenced to pay a fine of Rs. 200 with simple imprisonment for four months in default. In the charge sheet that was laid by the Corporation it was stated that on 30th March 1943, the petitioner stored and offered for sale food described as ghee which was not of the nature or substance or quality which it purported or was represented to be for the reason that it contained an admixture of 80 per cent. of foreign fat and thereby committed an offence punishable under Section 5 (1) (a) and (b). The Magistrate found him guilty under that section on the evidence of P.W. 1, the inspector. There is absolutely no evidence to show that the petitioner offered for sale that ghee. The only evidence is that the ghee was kept in a tin which was in the shop of the petitioner. According to P.W. 1 when he entered the shop he found two tins. He selected the particular tin which was in the rear and wanted a sample of the same. The petitioner was not in the shop then. There was there then only his servant. The master came subsequently and the ghee was taken from that tin. According to the petitioner's case, the ghee in that tin was not for sale. He says that he told the inspector so and that it was kept there only for test and that there was a label to show that it was not for sale. P.W. 1 stated that the petitioner had a slip of paper in his hand and that he showed it to him and that the slip shown to him purported to indicate that the contents of the tin were not for sale. He added in cross-examination that the tin from which he took the sample was by the side of a chair which was adjoining the rear wall of the shop.
2. It is urged by the learned Grown Prosecutor that under Section 5 (2) of the Act in every prosecution for an offence against this section, the Court may presume that any food found in the possession of a person who is in the habit of manufacturing or storing like articles for sale, has been manufactured or stored by such person for sale. It is not an irrebuttable presumption. It can be rebutted. In this case it has been rebutted by the fact that even at the time when the inspector came it was mentioned to him that the ghee was not for sale and that it was kept in the rear of the shop near the chair adjoining the rear wall. In Ex. A which was obtained by the health inspector from the petitioner at the time of the taking of the sample it was stated 'This ghee under test. Now not for sale. After test it is for sale. There is a label on the tin.' So even in the receipt obtained from the petitioner at the time of the taking of the sample it was mentioned to the knowledge of the inspector that there was a label on the tin. It does not appear that he objected to the statement of that fact in the receipt. Now in Court he stated that there was no label on the tin. I do not think the Magistrate was justified in accepting this statement of the witness in the face of what is stated in Ex. A. The petitioner had stated even at that time that the tin was not for sale and had a label that it was not for sale. I, therefore, do not think it ought to be presumed that the ghee that was kept in the tin was offered for sale or stored for sale. Since there is no evidence that the ghee was offered for sale and since in the circumstances of the case it could not be presumed that that ghee was stored there for sale, the petitioner could not be found guilty of any offence punishable under Section 5(1)(a) and (b), Madras Prevention of Adulteration Act. I set aside the conviction and sentence and acquit the petitioner.