Judgment :- 1. The Food Inspector Alleppey Municipality has preferred this appeal against the order of acquittal passed by the District Magistrate, Alleppey in a Criminal prosecution under S.7 and 16 of the Prevention of Food Adulteration Act (referred to as the Act). 2. On 27101971 at about 9.15 a. m., the Ist Respondent accused was taking a quantity of buffalo milk to the State Transport Canteen in Alleppey town. After complying with the requisite formalities and requirements under the Act, pw.1 the Food Inspector purchased 660 mlls, of the milk from the Ist Respondent for a price under Ext. P2 voucher. On analysis of the sample thus taken, duly made and completed, the sample was found to be adulterated. These facts have been found by the District Magistrate and have not been disputed. 3. In his statement under S.342 of the Criminal Procedure Code, the 1st Respondent denied that he was a milk vendor. In the cross-examination of pw. 2, the Manager of the Canteen, it was suggested that he had contracted to purchase the milk from one Pareed Kunju and from Asoka Bakery, and that the Ist Respondent accused carried the milk to the Transport canteen as per his directions and had no authority to sell the milk, and was not a milk vendor. The trial court found that the 1st Respondent accused was a mere carrier of the milk and was taking the milk to the transport canteen as per the directions of the Canteen Manager, and did not have any authority to sell the article. It concluded thus: "Thus the above transaction could not be said to be a voluntary sale within the meaning of the Act. Moreover it was also evident that the accused was only a carrier of the milk. Thus on this point it has to be found that the prosecution has not succeeded in establishing that the accused sold the milk to the Food Inspector." On the above findings, the 1st Respondent was acquitted. The learned Trial Magistrate relied upon the decisions in Food Inspector Guruvayoor v. Gopalan 1969 KLT. 631), and Pulla Reddy v. The State (AIR. 1966 And. Pradesh 302). 4. in Sarjoo Prasad v. The State of Uttar Pradesh (1961 (3) SCR. 324) = AIR. 1961 SC. 631), Sarjoo Prasad was an employee of one Thakur Dis, a vendor of edible oils and provisions. 631), and Pulla Reddy v. The State (AIR. 1966 And. Pradesh 302). 4. in Sarjoo Prasad v. The State of Uttar Pradesh (1961 (3) SCR. 324) = AIR. 1961 SC. 631), Sarjoo Prasad was an employee of one Thakur Dis, a vendor of edible oils and provisions. The Food Inspector of Allahabad Municipality purchased from Sarjoo Prasad, a sample of mustard oil exposed for sale in Takur Din's shop, which, on analysis, was found to be adulterated Sarjoo Prasad was prosecuted for selling adulterated food. After referring to the pro visions of S 7 of the Prevention of Food Adulteration Act, which enacts that no person shall himself or by any person on his behalf sell any adulterated food; and S.16 which enacts that if any person whether by himself or by any person on his behalf sells any article of food, he shall be punishable, the Supreme Court observed: The expression "person" has not been defined in the Act and in the context in which that expression occurs, it prima facie include, every one who sells adulterated food By the collocation of the expression, "no person shall himself or by any person on his behalf" the employer alone is not prohibited. The intention of the Legislature is plain Every person, be he an employer or an agent is prohibited from selling adulterated food and infringement of the prohibition is by S.16 penalised. Prohibition of sale of adulterated food is evidently imposed in the larger interest of maintenance of public health. The prohibition applies to to all persons who sell adulterated food, and for contravention of the prohibition all such persons are penalised Because the Legislature has sought to penalise a person who sells adulterated food by his agent, it cannot be assumed that it was intended to penalise only those who may act, through their agents. the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision is shown to have guilty knowledge. the owner of a shop in which adulterated food is sold is without proof of mens rea liable to be punished for sale of adulterated food, we fail to appreciate why an agent or a servant of the owner is not liable to be punished for contravention of the same provision is shown to have guilty knowledge. The argument that the Legislature could not have intended having regard to the fact that a large majority of servants in shops which deal in food are illiterate to penalise servants who are not aware of the true nature of the article sold has in our judgment no force. The intention of the Legislature must be gathered from the words used in the statute and not by any assumptions about the capacity of the offenders to appreciate the gravity of the acts done by them. There is also no warrant for the assumption servants employed in shops dealing in food stuff are generally illiterate. The Legislature has in the interest of the public health, enacted the Act and has provided that all persons are prohibited from selling adulterated food. In the absence of any provision, express or necessarily implied from the context, the courts will not be justified in holding that the prohibition was only to apply to the owner of the shop and not to the agent of the owner who sell adulterated food. The view takes to the contrary by the Madras High Court in In Re. S. Moses (ILR.1959 Mad. 418) is, in our judgment, erroneous." (Italics mine) In Mangald as Raghavhi Ruparel v. State of Maharastra (AIR. 1966 SC.128).the facts show that the consignor, the consignee, and the servant of the latter were prosecuted for adulteration of turmeric powder despatched by the consignor to the consignee and taken delivery of at the octroi post by the latter's servant. The conviction of all the appellants was sustained. No argument was advanced that the servant was not liable. In Ibrahim Haji Moideen v. Food Inspector, Nilishwar (1969 KLT. 628) two persons were prosecuted under S.16(1) read with S.7(2)(1) of the Act. The 1st accused was the owner of a grocery shop, and the second accused was attending to sales in the shop when the Food Inspector purchased a specimen of Kesari dal, which, on analysis, was found to read with S 7(2)(1) of the Act. 628) two persons were prosecuted under S.16(1) read with S.7(2)(1) of the Act. The 1st accused was the owner of a grocery shop, and the second accused was attending to sales in the shop when the Food Inspector purchased a specimen of Kesari dal, which, on analysis, was found to read with S 7(2)(1) of the Act. The 1st accused was the owner of a grocery shop and the second accused was attending to sales in the shop when the Food Inspector purchased a specimen of Kesari dal, which, on analysis, was found to be adulterated. The trial court convicted both the accused. On appeal, the Sessions Judge confirmed the conviction of the first accused but reduced the sentence; and acquitted the second accused, on the ground that there is no satisfactory evidence to show that the second accused was the partner or the selling agent of the first accused. The High Court, in revision, set aside the acquittal of the second accused and remitted the case to the Sessions Judge for re-hearing. It also restored the sentence imposed on the first accused by the trial court. On further appeal by the appellants, the Supreme Court observed: "The judgment of the learned Sessions Judge is manifestly illegal For the purpose of a conviction under the charge on which A2 was tried, it was immaterial whether he was an agent or a partner of Al. Once it is proved that it was he who sold the adulterated article, he was liable to be convicted under S.16 (I) read with S.7 of the Prevention of Food Adulteration Act. The contention of Mr. Ganghi, learned Counsel for the appellants that under those provisions only the owner of the shop could be convicted is a wholly unsustainable contention. It is not necessary to examine that contention in detail in view of the decision of this Court in Sarjo Prasad v. The State of U. P. (1961) 3 SCR. 354)." (Italics mine) In Food Inspector, Calicut Corporation v. Gopalan (1971 KLT. 462) the Supreme Court laid down that the article of food purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale and the person from whom the article of food has been purchased by the Food Inspector need not be a dealer in such an article. 462) the Supreme Court laid down that the article of food purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale and the person from whom the article of food has been purchased by the Food Inspector need not be a dealer in such an article. In the course of the judgment it was pointed out that under S.10(1)(a), the Food Inspector has power to take samples of any article of food from the persons enumerated in sub clauses (i) to (iii) and that sub clause (ii) of S.10(1)(a) provides that sample can be taken from any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. 5. In the light of the above decisions of the Supreme Court, the judgment of the learned Magistrate appears unsustainable. But he has relied on two decisions which may be examined. In Food Inspector, Guruvayoor v. Gopalan (1969 KLT. 631), a learned judge of this Court had to consider the correctness of the order of acquittal passed by the Sub Divisional Magistrate. Kunnamkulam under S.16(1)(a)(i) read with S.7(1) of the Act. The accused in that case, a boy aged 15 was found to be a carrier of the bottle of milk to his father when a sample of milk was taken by the Food Inspector. The learned judge observed: "The Counsel for the respondent points out fairly enough that even a servant might be convicted. However, it is not necessary for me to say anything on that question in this case. There cannot be any doubt that a mere carrier cannot be convicted. In this case, it is difficult to hold that a boy of 15. who was asked by his father to carry a bottle of milk and give it to another, can be said to be anybody other than a carrier. Therefore, the view of the Magistrate that the boy had some interest in the sale and might also be convicted is erroneous." On this ground the order of acquittal passed by the Magistrate was sustained, although the two reasons given by the Magistrate in support of the acquittal were found to be erroneous. Two prior decisions were referred to, namely, Krishnan v. Municipality of Cannanore (1960 KLT. 773) and Public Prosecutor v. Y. Pulla Reddy (AIR. 1966 And. Pradesh 302). Two prior decisions were referred to, namely, Krishnan v. Municipality of Cannanore (1960 KLT. 773) and Public Prosecutor v. Y. Pulla Reddy (AIR. 1966 And. Pradesh 302). The first of these, was prior to the Supreme Court decisions which I have noticed earlier. The second, was subsequent to the Supreme Court decision in AIR. 1961. SC. 691. but does not refer to that decision. It followed the decision in Food Inspector v. Parameswaran (1961 KLT. 308), a decision which was disapproved by the Supreme Court in Mangaldas Raghavji Ruparel v. State of Maharashtra (AIR. 1966 SC 128). In the face of the clear pronouncements in AIR. 1961 SC. 631 and 1969 KLT. 628 and also the reasoning in 1971 KLT. 462,I am of the opinion that the order of acquittal passed by the District Magistrate was clearly illegal. 6. Counsel for the 1st Respondent relied on the decision In Re. S. Moses's case (AIR. 1959 Mad. 185). It is enough to state that the decision has been expressly disapproved in AIR. 1961 SC. 631. 7. I allow this appeal, set aside the order of acquittal, and find the first Respondent guilty of the offence under S.7 read with S.16(1) of the Prevention of Food Adulteration Act. On the question of sentence, I am unable to find any "adequate and special reasons" to withhold the minimum punishment of imprisonment for six months provided under S.16 of the Act, especially in the light of the observations made by the Supreme Court in 1969 KLT. 628. I therefore sentence the 1st Respondent to simple imprisonment for a term of six months and to a fine of Rs 200/-.