Govinda Menon, J.
1. Under Section 417 of the Code of Criminal Procedure the Public Prosecutor, Madras, appeals against the acquittal of the respondent of an offence under Rule 28 framed under Clause (b), Sub-section (2) of Section 20 of the Madras Prevention of Food Adulteration Act and under Section 5(1)(d) of the said Act.
2. The prosecution case is that P.W. 1, the Health Inspector at Kallakurichi, went to the shop where the respondent was at about 8 a.m., on 15th October, 1946, and wanted a sample of ghee from him. The respondent gave the ghee and received 5 annas being the price. This ghee was tested and found to contain 94 per cent. of fat not derived from milk or cream and thereafter the prosecution was instituted. The defence of the respondent was that he was not, the owner of the shop where the ghee was offered for sale, that he did not sell the ghee and therefore he was not guilty of any offence. The lower Court found that the shop wherein the ghee was exposed for sale and sold, belonged to a joint family of the respondent and his brother, M.S. Palanisami Chetti and that the owner of the shop was this Palani-sami Chetti. The respondent was in the shop only in the absence of his brother, and relying upon a decision in In re Bellamkonda Kanakayya1, the lower Court held that the respondent was not guilty. In addition, the finding was that P.W. 1 was not acting under Section 14 of the Act but simply purchased the ghee as an ordinary individual and since there was no sale as contemplated by Section 5 the respondent was held not guilty.
3. In my view the learned Magistrate has not correctly appreciated the evidence in the case. There is no reason to doubt the credibility of the evidence of P.W.1, nor is anything suggested to that effect. P.W. 1 says that the respondent was in the shop when P.W. 1 asked him whether he had ghee; and on getting the reply in the affirmative, P.W. 1 purchased ghee for 5 annas for which a cash bill was given by the respondent. After the ghee was purchased and the money was paid, P.W. 1 told the respondent that he wanted the same for taking a sample. Though it is stated by P.W. I that the respondent told him that it was tiffin ghee, I do not think that anything can be made out of that. There is no such material as tiffin ghee contemplated by the Madras Prevention of Food Adulteration Act.
4. Mr. S. Viswanathan for the respondent strenuously argued that since the business stood in the name of Palanisami Chetti, the respondent cannot be said to be the person who in the words of Section 3(1)(d), offers for sale any ghee which is not upto the standard of purity prescribed by the local Government. He further relied on Rule 28, to the effect that no person shall sell or have in his possession for purposes of sale or for use as an ingredient in the preparation of an article of food for sale, a mixture of ghee or butter and any substance consisting of or con-taining any oil or fat which does not conform to the definition of ghee in the Act. On the evidence of P.W. 1, it is difficult for me to hold that the respondent was not the person who offered the ghee for sale or to hold that the respondent did not have in his possession the article which did not conform to the definition of ghee in the Act. Exs. D-1 to D-3 are relied upon to show that Palani-sami Chetti is the owner of the shop. Even if that is correct and even if the respondent though a member of the joint family did not have any rights in the business, still I am inclined to hold that the respondent remaining in the shop in the absence of his brother and acting as his deputy can be considered as the person who offered the ghee for sale. It is not suggested that the respondent was there only as a casual visitor or that he did not go there for the purpose of looking after the business. In these circumstances I hold that the respondent was the person who offered for sale the quantity of ghee which did not conform to the definition of the word in the Act. The appeal is therefore allowed and the respondent is found guilty of the offence with which he is charged and sentenced to pay a fine of Rs. 5 or in default to simple imprisonment for one week.