1. This is an appeal by the State against the order of acquittal by the Sub-Divisional Magistrate in C. C. No. 35 of 1956 on his file.
2. The prosecution is for an offence under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act. The respondents were prosecuted for keeping adulterated bengal gram flour for sale. On analysis it was found to contain an artificial water-soluble yellow colouring matter derived from coal tar. A preliminary objection was raised before the Sub-Divisional Magistrate that this prosecution cannot lie, although there may be a contravention of Rule 28 (d) of the Madras Prevention of Adulteration Act made under Section 20 of Act III of 1918. The learned Magistrate upheld the objection and without going into the evidence acquitted the accused. The learned Magistrate was not at all justified in upholding the preliminary objection. Section 25(2) of Act XXXVII of 1954 clearly saves all rules, regulations and bye-laws relating to the prevention of adulteration of food made prior to the coming into force of that Act and which were in force in so far as they are not inconsistent with or repugnant to the provisions of that Act. The Magistrate appears to have entirely overlooked this provision, on the specific saving of the prior rules under Section 25 (2), those rules must be considered to be in force under the Act also till they are replaced by other rules. The decision of the Magistrate based upon the wrong interpretation of that section is incorrect. The Magistrate ought to have gone into the question about the adulteration of foodstuffs and given a finding on it. The acquittal on the face of it is liable to be set aside. However, in view of the fact that this offence was committed in May 1955 and we are now in March 1957, I do not think the ends of justice require that there should be a retrial of the accused. The acquittal, however, is set aside, but there will be no order as to retrial.