Judgment :- 1. This appeal against acquittal, brought under subsection (3) of S.417 of the Criminal Procedure Code, has been referred to a division bench by the learned judge who heard it in the first instance - he thought that the single judge ruling in Food Inspector, Tellicherry v. Chandu 1969 KLT 709 on which the acquittal was based required reconsideration. 2. On 8-7-1968 pw.1, the complainant, a Food Inspector of the Cochin Corporation, went to the tea-shop of the accused and obtained twelve glasses of tea for analysis duly complying with the provisions of S.10 and 11 of the Prevention of Food Adulteration Act. Analysis disclosed that the tea contained 50 parts per million of an artificial sweetener, saccharin Ext. P5 is the report of the Public Analyst. (The certificate is dated the 23rd September 1968, but does not disclose, what would be far more useful in such cases, namely, the date the analysis was made). When questioned under S.342 of the Code, the accused was content with the statement that he had not added any saccharin or other artificial sweetener to the tea. He did not deny the taking of the sample by pw.1 or controvert the evidence of pw.1 which showed that the sample was taken in full compliance with the requirements of S.10 and 11 of the Act. Had be chosen to do so, it might have been a matter for consideration whether pw.1's testimony was worthy of acceptance in view of his statement therein that he asked the accused to give him twelve glasses of tea prepared in boiling water with sugar, milk and tea-powder. This extremely factitious statement as if anybody ordering tea would give these specifications, and as if the accused who must have known that pw.1 was a Food Inspector, would have made him tea with saccharin! was obviously with an eye to the definition of, "adulterated" in S.2 (i) (a) of the Act. "If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser, and, is to his prejudice xxx" and we cannot too strongly deprecate such misconceived attempts by the prosecution to "plug in loopholes" as it is commonly described. "If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser, and, is to his prejudice xxx" and we cannot too strongly deprecate such misconceived attempts by the prosecution to "plug in loopholes" as it is commonly described. However, since the accused neither challenged the evidence of pw.1 either in the cross-examination of the witness or in his own statement, nor made any attempt to exercise his right under sub-section (2) of S.13 of the Act to have the part of the sample left with him or the part retained under S.11 (1) (c) (i) and (iii) of the Act sent for analysis, we must take it that the accused "sold" tea which on analysis was found to contain saccharin. 3. In acquitting the accused, the learned magistrate held, following the decision in Food Inspector, Tellicherry v. Chandu,1969 KLT. 709 that no reliance could be placed on the result of the analysis since admittedly pw.1 had added no preservative to the tea before sending it for analysis. That was also a case of an artificial sweetener in tea, and the learned magistrate relied on the following passage in the judgment: "It has come out in evidence that the sample taken by the Food Inspector was not treated with a preservative before it was sent to the Public Analyst for analysis. It is obvious that prepared, tea, if not treated with a preservative, cannot retain its characteristics for a long time. The certificate of the Public Analyst is dated 17th October 1967, whereas the sample was taken from the respondent on 28th August 1967. Obviously, no reliance can be placed on the evidence furnished by the report of the Analyst." Now, it seems to us clear that saccharin is a substance entirely foreign to the ingredients, milk, water, sugar and tea out of which tea is prepared and that, having regard to the chemical composition of these various substances, saccharin cannot be produced by any process of decomposition which, what has been called prepared tea might suffer, howsoever long it is kept. The purpose of adding a preservative is to ensure that the sample of food taken does not, by any decomposition suffered before it is analysed, acquire what we might call the offending quality. The purpose of adding a preservative is to ensure that the sample of food taken does not, by any decomposition suffered before it is analysed, acquire what we might call the offending quality. In other words, to ensure that the offending, quality detected on analysis was present when the sample was taken. Where no amount or delay and no amount of decomposition before analysis can produce the offending quality, the non-addition of a preservative can be of no significance. No provision of the Act or the rules made thereunder has been brought to our notice which enjoins the addition of a preservative in every case. What R.19, the only provision brought to our notice, says is: "19. Addition of preservative to samples. Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis." Both sides assure us that no preservative has been prescribed so far as prepared tea is concerned, and it follows that the rule does not require (indeed does not permit) the addition of any preservative to prepared tea. We are in respectful disagreement with the view expressed in Food Inspector, Tellicherry v. Chandu 1969 KLT. 709 that the failure to add a preservative in a case like the present is fatal to the prosecution. 4. R.47 which is the rule read in the charge framed against the accused runs as follows: "47. Addition of artificial sweetener to be mentioned on the label. Saccharin or any other artificial sweetener shall not be added to any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix B, and where any artificial sweetener is added to any food, the container of such food shall be labelled with an adhesive declaratory label which shall be in the form given below: "This contains an admixture (name of food) (name of the artificial sweetener)" This rule imposes two conditions for the addition of artificial sweetener to food. The first, that such addition is permitted in accordance with the standards laid down in Appendix B, and, the second, that where an artificial sweetener is added the container of the food shall have a label declaring so. The first, that such addition is permitted in accordance with the standards laid down in Appendix B, and, the second, that where an artificial sweetener is added the container of the food shall have a label declaring so. The second condition is hardly applicable to a case like the present. But, the first condition has also to be satisfied, and that condition is not satisfied in this case since there is nothing in Appendix B which permits the addition of an artificial sweetener to prepared tea. It seems to us clear that the accused in this case has been guilty of a breach of R.47. 5. However, the more appropriate rule to apply would appear to be R.44 (g) which runs thus: "44. Sale of certain admixtures prohibited.- Notwithstanding the provisions of R.43 no person shall either by himself or by any servant or agent sell (g) any article of food which contains any artificial sweetener except where such artificial sweetener is permitted in accordance with the standards laid down in Appendix B." As we have seen Appendix B does not permit the addition of any artificial sweetener to prepared tea and the accused is clearly guilty of a breach of this rule. The non-mention of this rule in the charge cannot in any way have prejudiced the accused, and we hold the accused guilty of a breach of this rule as well. 6. It is not necessary to consider whether the tea "sold" by the accused was adulterated within the definition in S.2(i) of the Act-in fact we are not satisfied that it was. Under sub-clause (ii) of clause (a) of sub-section (1) of S.16 of the Act, any person who manufactures for sale, or stores, sells or distributes any article of food (other than an article of food which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interests of public health) in contravention of any of the provisions of the Act or any rule made thereunder, is punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees. As we have seen, the accused is guilty of "sale" and distribution in contravention of the rules. 7. As we have seen, the accused is guilty of "sale" and distribution in contravention of the rules. 7. We might mention that, although it would appear from the points for determination framed by the learned magistrate that Pw.1's competency to detect and prosecute offences under the Act in the area covered by the Cochin Corporation was questioned before him as also whether pw.1 had purchased the tea from the accused and had observed the rules regarding the taking of a sample and sending it for analysis, no such contention has been urged before us. 8. We allow this appeal and convict the accused under S.16 (1) (a) (ii) of the Prevention of Food Adulteration Act, 1954. 9. The accused, it would appear, is a first offender, and we are told that he has closed his teashop. Regarding his character or antecedents nothing adverse has been urged, and, having regard to all the circumstances of the case, including the time that has elapsed since the commission of the offence, we think it expedient that he should be released on probation of good conduct instead of sentencing him at once to punishment. Therefore, under sub-section (1) of S.4 of the Probation of Offenders Act we direct that the accused be released on his entering into a bond (without sureties) in the sum of Rs. 500/- to appear and receive sentence when called upon within the next two years and in the meantime to keep the peace and to be of good behaviour. Allowed.