Judgment 1. Challenging an order of acquittal passed in S.T.C. No. 378 of 1978, a case under the Prevention of Food Adulteration Act (hereinafter referred to as the Act), the Food Inspector, Perumbavoor Municipality has filed the appeal. The two accused before the trial Court/who are respectively respondents 1 and 2 herein, were tried by the Judicial Magistrate of I Class, Perumbavoor, on a complaint filed by the Food Inspector (P.W. 1), alleging that the 2nd accused salesman in the shop of the 1st accused, sold 450 grams of butter to the Food Inspector at 11-30 a.m. on 24th September, 1977, which on analysis was found adulterated. 2. In support of the prosecution case, besides P.W. 1, the Food Inspector, P.Ws. 2 and 3 who have attested the mahazar Exhibit P-4 were examined and documents including Exhibit P-6 report of the Public Analyst were marked. 3. In denying their guilt, when examined on the prosecution evidence the 1st accused denied the truth of the prosecution case and stated that he is not the owner of the shop, while the 2nd accused although denied he is the employee of the 1st accused, admitted the sale of the article of food in question to the Food Inspector and the sampling of the same by the Food Inspector in accordance with the provisions of the Act. But he challenged the correctness of the report of the Public Analyst stating that it is unreliable. He further stated that what the Food Inspector demanded from him was butter, that he told the Food Inspector that what he was having was goat butter, that the Food Inspector then replied that it did not matter what butter it was, that the butter which he sold to the Food Inspector was kept in a vessel containing water and it was without drying out the water that he sold the same to the Food Inspector. 4. The learned Magistrate without duly considering the evidence adduced on the prosecution side and without giving a finding whether the 1st accused is the owner of licensee of the shop and the 2nd accused sold the article of food in question to the Food Inspector as alleged acquitted both the accused on the ground that the prosecution has tailed to prove that it was table butter that was sold by the 2nd accused to the complainant. 5. 5. Sri Chacko George, learned Advocate appearing for the appellant strongly assailed the order of acquittal on several grounds. The Counsel submitted that the decision in Public Prosecutor v. Sangammal1 which is relied on by the trial Court has no application to the facts of the present case, that when butter is sold or offered for sale without any indication whether it is table butter, deshi butter or cow butter, the standard prescribed for table butter shall apply, that this is what is contained in the proviso to the standard prescribed for table butter, that there is no evidence in this case, that what was asked for was goat butter and what was supplied was goat butter, that in the absence of evidence in this respect, it has to be presumed that what was sold was table butter, and that the report of the Public Analyst clearly shows that the sample did not conform to the standard prescribed for table butter. 6. P.Ws. 1 to 3 have been cross-examined at length on behalf of the accused. But no circumstance or material has come out during their cross-examination to prove or probabi-lise the version put forward by the 2nd accused. There is no evidence on the prosecution side that the 2nd accused told the Food Inspector that what was in his possession for sale was only goat butter and it was as consented by or with the knowledge of the Food Inspector that the 2nd accused sold goat butter to him. On the other hand the evidence adduced on the side of the prosecution clearly discloses that what P.W. 1 demanded for purchase from 2nd accused was butter and not goat butter. The 2nd accused also in his statement under section 313 has stated that what was demanded by the Food Inspector from him was butter. There was not even a suggestion to P.W. 1 or any other witness during their cross-examination that what was sold by the 2nd accused to the Food Inspector was goat butter or that the 2nd accused told the Food Inspector that he was dealing only in goat butter. It was relying on the evidence of D.W. 1 that the learned Advocate appearing for the accused contended that the 2nd accused was dealing only in goat butter and it was representing that it was goat butter that the 2nd accused sold this to the Food Inspector. It was relying on the evidence of D.W. 1 that the learned Advocate appearing for the accused contended that the 2nd accused was dealing only in goat butter and it was representing that it was goat butter that the 2nd accused sold this to the Food Inspector. D.W. 1 has deposed that the 2nd accused is a dealer in butter, that he used to regularly supply goat butter at the shop of the 2nd accused and that on the morning of the date of occurrence he supplied butter to the 2nd accused and it was when he went there for accepting the price, he saw the Food Inspector taking the sample. He further stated that the Food Inspector only demanded butter and he did not specify the category of butter and that the 2nd accused then told the Food Inspector that he had only goat butter. Thereafter he (the witness) left the place while the Food Inspector was weighing the butter. Admittedly there is no licence issued to this witness (D.W. 1) to deal in butter under the Prevention of Food Adulteration Act or Rules. During cross-examination he admitted that he does not own any goat, that he is employed at Asoka Textiles at Alwaye, that it was his father-in-law and mother-in-law who were owning a goat, that his wife is residing with him and that he has never sold goat butter to any one ever since his wife started residing with him. He also stated that his marriage was 10 years ago and he stayed in his wife house only for an year. The trial Court has duly considered the evidence of this witness and riehtlv rejected the same holding that he is not speaking the truth. On a reading of his evidence, as a whole it is clear that he is deliberately speaking to a false version with a view to support the accused. 7. In Bal Krishnan v. The State2 it was held as hereunder- “Where an article is sold as butter it is for the seller to allege and prove that the sample contained admixture of the product derived from goat's milk. 7. In Bal Krishnan v. The State2 it was held as hereunder- “Where an article is sold as butter it is for the seller to allege and prove that the sample contained admixture of the product derived from goat's milk. Where an article is sold as butter but it is found not conforming to the standard prescribed for butter in item A. 11.05 of Appendix B attached to Prevention of Food Adulteration Rules, it is not the duty of the prosecution to prove that there was no admixture in the article of the product derived from goat's milk” In Food Inspector v. Sreedharan Nair1 this Court relied on this decision, and I am also in respectful agreement with the dictum laid down in this decision. Public Prosecutor v. Sangammal,2 relied on by the, trial Court was dealing with a case before the proviso to the standard prescribed for table butter and deshi butter was introduced. It was by notification G.S.R. No. 133, dated 23rd January, 1973, fhat this proviso was introduced. This case has therefore no application to the facts of the instant case. Under the Act standard has been prescribed only for table butter and deshi butter. The proviso to this states that where butter is sold or offered for sale without any indication as to whether it is table butter or deshi butter, the standard of quality prescribed for table butter shall apply. In the case on hand, the butter in question was offered for sale without any indication as to whreher it was table butter as deshi butter. Therefore in the case of butter so sold the standard of quality prescribed for table butter shall apply. The report of the Public Analyst Exhibit P-6 shows that the sample involved in the case does not conform to the standard prescribed for table butter. For the reason stated above the acquittal of the accused on the eround mentioned by the trial Court cannot be sustained. 8. Regarding the 1st accused the learned Advocate appearing for the accused submitted that there is no satisfactory and reliable evidence to show that he is the owner and licen-cee of the shop in question. On the other hand the Counsel appearing for the appellant submitted that there is not only oral evidence but documentary evidence also adduced on the point and this has not been considered at all by the trial Court. On the other hand the Counsel appearing for the appellant submitted that there is not only oral evidence but documentary evidence also adduced on the point and this has not been considered at all by the trial Court. In view of the fact that the evidence on this point has not been considered by the trial Court, I do not think proper to reappraise the evidence in this appeal. 9. In the result, this appeal is allowed, the order of acquittal passed by the Court below is set aside and the case is sent back to the trial Court for disposal afresh on the evidence already on record and in accordance with law and in the light of this judgment. The accused will be entitled to raise other contentions, if any, in support of their defence. The Counsel for the accused submitted that the accused may be given a further opportunity to adduce evidence in support of the defence. The prosecution has no objection to this course. Considering the facts and circumstances of this case, I think the accused should be given an opportunity to adduce further evidence, if any. Order of acquittal set aside-case remanded.