JUDGMENT P. Govinda Menon, J. 1. The Food Inspector of the Cannanore Municipality has filed this appeal after obtaining special leave under section 417 (3) Cr. P.C., against the judgment of the District Magistrate, Tellicherry acquitting the respondent-accused who had been prosecuted for an offence under section 16 read with section 7 of the Food Adulteration Act. 2. On the morning of 30th May 1962 P.W.1 the Food Inspector visited the shop of the accused and found among the articles exposed for sale a glass jar containing lozenges. He purchased 225 grams of lozenges and paid its price.Ex.P-1 is the receipt granted by the accused. It was duly sampled and form VI notice Ex. P-2 was served on the accused, and his acknowledgment was obtained. P.Ws. 2 and 3 who were present and witnessed the sampling have a also attested Ex.P-2. One part was sent to the Public Analyst and his report Ex. P-3 showed that the sample lozenges contained non-permitted rose coaltar-dye and as such was adulterated. The sale of lozenges by the accused and that they were adulterated is amply proved and is in fact not disputed. 3. The accused produced Exx. D-1 and D-2 dated 28th December 1963 and 29th January 1964 purporting to be warranties given by M/s. Cohinoor Confectionary Company, Madras. This is long after the sample was taken on 30th May 1962 and it is not contended that the provisions of section 19 (2) have been complied with. There is also no evidence that written notice was given either to the Food Inspector or to the person who had issued the warranty. So Exx. D-1 and D-2 do not help the accused. 4. The accused, however, examined one witness and during the course of his examination he produced M.O.2 container wherejn there was a label stating 'permitted colours only used' and on the strength of this label it is argued that this is sufficient warranty under the proviso to rule 12-A. Accepting this to be a proper warranty the accused was acquitted by the District Magistrate. The correctness of the finding has been challenged in this appeal. 5. The correctness of the finding has been challenged in this appeal. 5. Rule 12-A of the Prevention of Food Adulteration Rules is in the following terms: '' 12-A. Warranty.- Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in form VI-A: Provided that no warranty in such form shall be necessary if a lable on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo, is the same in nature, substance and quality as demanded by the vendor.'' So to come within this proviso an article of food must have been sold as it is from a closed package or container or receptacle on which a label as required under the proviso is affixed. Under sub-section 2 (iii) to section 19 in in addition to the warranty or the label containing the warranty it is necessary for the accused to prove that he sold the article in the same state in which he purchased it. Here P.W. 1's evidence is that lozenges were stocked in a glass jar and it is from that glass jar that the lozenges were taken out, weighed and sold to P.W. 1. When questioned whether lozenges were not taken out of a tin containing a label and whether lozenges contained in the glass jar were not put into it from out of a tin P.W. 1 denied it. He also stated that he was not told that the lozenges were got from Madras. He has categorically stated that no tin containing label was ever shown to him, When P.Ws. 1 to3 were examined no container was shown to them. It is at the stage of the defence when P.W. 1, the brother of the accused was examined that he produced a tin M.O. 2 containing the label. No documentary evidence was adduced to show that this lozenges could have been that sent by the Madras firm. They were not cited as witness. P.W- 1 does not also say that the sample was really taken out of such a tin containing the label. So the mere production of M. O. 2 in court would not by itself help the accused. 6. They were not cited as witness. P.W- 1 does not also say that the sample was really taken out of such a tin containing the label. So the mere production of M. O. 2 in court would not by itself help the accused. 6. The burden that he is protected under the proviso of section 19(2) is on the accused. He has to prove that the container from which the sample was taken had the required label. Again the label in this case stating 'permitted colours only used' does not contain a warranty certifying that the food is unadulterated and therefore would not amount to a written warranty as required under the proviso to rule 12-A. The sentence in the label that only permitted colours used would only be a mere advertisement label but would not amount to a label containing a warranty. Merely because the Food Inspector said that he cannot say that the dye was added by the accused and the fact that no implements to manufacture lozenges were found in the accused's shop would not exonerate the accused from the charge of stocking and selling adulterated lozenges. The reasoning of the District Magistrate to find the accused not guilty is unsustainable and has to be set aside. In the result, the accused is found guilty and convicted of the offence charged. As there is no evidence as to the exact quantity of lozenges which he had stocked, I do not think interests of justice require the imposition of a heavy sentence. The accused is sentenced to pay a fine of Rs. 25, in default to suffer simple imprisonment for a week. Appeal is allowed.