JUDGMENT R.B. Lal, J. 1. This appeal by the Nagar Swasthya Adhikari, Nagar Maha palika Agra, is directed against the order of acquittal dated 26-4-1977 passed by Sri Yashpal Lukaria, Munsif Magistrate, First Class, Agra. 2. Food Inspector R.M. Chaturvedi, Nagar Mahapalika, Agra, visited the shop of Ashok Kumar, respondent no. I in Nagla Padi locality on 27-12-1974 at 5 P.M. and found the respondent no. 1 selling 'chaney ki dal'. The Food Inspector disclosed his identity and gave notice under rule 12 to respondent no. 1 and obtained its receipt (Ex. Ka. 1). He purchased 600 grams of 'Chaney ki dal' from respondent no. 1 on payment of Rs. 1.65 p. as its price. He put the purchased dal in three clean and dry bottles in equal quantity and sealed and wrapped the bottles as required under the rules. He handed over one sample bottle to respondent no. 1. He obtained receipt (Ex. Ka. 2) in token of payment of price and delivery of one bottle of sample dal, from respondent no. 1. He also prepared a report (Ex. Ka. 3) and form no. 7 in triplicate. The Food Inspector sent one bottle of sample dal to the Public Analyst after observing the relevant rules. The Public Analyst gave his report (Ex. Ka. 5) saying that the said sample contained 6.7 per cent khesari dal (Lathyrus Sativus), which rendered the sample of food injurious to health. Thus, the sample was found adulterated. A copy of this report was sent to respondent no. 1 by post. Dr. V. S. Kulshrestha, Nagar Swasthya Adhikari, Nagar Mahapalika, Agra passed an order for prosecuting respondent no. 1 and, thereafter filed a complaint in court under his own signatures. He prayed that Ashok Kumar be prosecuted for an offence under section 7 read with section 16 of the Prevention of Food Adulteration Act (briefly the Act) for selling adulterated article of food. 3. Ashok Kumar respondent no. 1, admitted that the Food Inspector had taken a sample of 'chaney ki dal' from his shop and had given one bottle of sample dal to him, but he added that he was not paid the price of dal and the 'chaney ki dal' was meant for animal consumption, as ratab. He had given out this fact to the Food Inspector who did not mention it in his papers. 4. He had given out this fact to the Food Inspector who did not mention it in his papers. 4. The accused examined one witness Kali Charan (DW 1) in defence. The learned Magistrate observed that under Rule 22 of the Rules framed under the Act, the Food Inspector should have sent 250 grams of 'chaney ki dal' to the Public Analyst for analysis, but in fact, he had sent only 1 80 grams of 'chaney ki dal' to the Public Analyst. Thus, there was violation of Rule 22 which was mandatory. He, therefore, gave benefit of doubt to the accused. For taking this view, the learned Magistrate placed reliance on the Supreme Court decision in Rajal Das G.N. Pamanani v. The State of Maharashtra, AIR 1975 SC 189 . The learned Magistrate did not record any other finding and did not base his order of acquittal on any other ground. 5. The Nagar Swasthya Adhikari did not feel satisfied and preferred this appeal. 6. The learned counsel for the appellant has submitted that the ground on which the Magistrate acquitted Ashok Kumar respondent no. 1, ceased to have validity in view of a latter decision of the Supreme Court, namely State of Kerala v. Alasery Mohammad, AIR 1978 SC 933 . In this decision the Supreme Court overruled Rajal Das's case and held that Rule 22 is directory and not mandatory. The Supreme Court further observed:- "If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, (then merely because the quantity sent was not in strict compliance with the rule, will not result in the nullification of the report, and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to say whether it is sufficient for his analysis or not." The learned counsel for the appellant has further urged that the fact that the law has it stood at the time of the Magistrate's order of acquittal, was the correct law as enunciated by the Supreme Court, would not stand in the way of setting aside the order of acquittal in view of the changed position of law as enunciated in the later decision of the Supreme Court which overruled Rajpal Das's case. In support of contention the learned counsel has referred to the decision in Ram Das Bhikaji v. Sudanand, AIR 1980 SC 126 . In that case their lordships observed thus:- "Where the High Court in a Food Adulteration case held that there was noncompliance with rule 22 of the Prevention of Food Adulteration Rules, in not sending the minimum quantity of sample to the Public Analyst, and thus acquitted the accused relying on a decision of the Supreme Court, but subsequently that Supreme Court decision was overruled, the acquittal by the High Court was clearly wrong on point of law. Therefore, in appeal against acquittal, the exercise or discretion by the Supreme Court not to interfere with the High Court's order of acquittal on the ground that the law as it then stood was correct, would not arise, more so, when it was a case of economic offender." The above legal position has not been disputed by the learned counsel for respondent no. 1. In view of the aforesaid two decisions it must be held that the order of acquittal of respondent no. 1 on the ground that the provisions of Rule 22 were mandatory, is not well founded and must be set aside. 7. The learned counsel for respondent no. 1 has tried to support the order of acquittal on other grounds. He has contended that the 'chaney ki dal' which the respondent was selling, was not meant for human consumption and was being sold as 'ratab' (feed) for horses. This fact was clearly given out to the Food Inspector. Since the 'chaney ki dal' of which sample was taken, was meant as animal feed and was not meant for human consumption, the provisions of the Act were not attracted and it could not be said that respondent no. 1 had contravened the provisions of the Act or the Rules framed thereunder, and had committed an offence. In this connection the learned counsel has referred to the evidence on the record. 8. The Food Inspector R.M. Chaturvedi (PW 1) stated that 'chaney ki dal' was contained in a gunny bag. He did not see chaney ki dal in any other container. He added that he found the accused selling chaney ki dal. In this connection the learned counsel has referred to the evidence on the record. 8. The Food Inspector R.M. Chaturvedi (PW 1) stated that 'chaney ki dal' was contained in a gunny bag. He did not see chaney ki dal in any other container. He added that he found the accused selling chaney ki dal. He denied that the accused had told him that the dal in the gunny bag was for purposes of animal feed and the dal for human consumption was separately stocked. He was supported by Lakhan Singh, Assistant Sanitary Supervisor (PW 3). This witness added that the accused was running a perchune shop. The Food Inspector had taken a public witness Nitaya Kishore (PW 2) as a witness of the taking of sample of chaney ki dal. This witness stated that chaney ki dal was present in the shop of the accused in a gunny bag and also in a tin canister. When the Food Inspector took the sample of chaney ki dal from the gunny bag, the accused had told him that persons maintaining horses purchased that dal and the dal meant for human consumption was stored in the tin canister. The accused stated in his statement that he was selling chaney ki dal as horse feed, and he had told the Food Inspector about it, but he (Food Inspector) did not note down this fact in his papers Kali Charan (DW 1) who was also a neighbouring shop keeper, stated that the chaney ki dal sold by the accused, was for purposes of horse feed. He added that he could not say if the accused sold chaney ki dal for human consumption. He admitted that chaney ki dal was used as an article of human food. The statement of Nitaya Kishore (PW 2) that chaney ki dal was being exposed for sale in two containers namely a gunny bag and a tin canister, is not worthy of acceptance because it does not receive support form any other material. The remaining two prosecution witnesses did not state that chaney ki dal was present in two containers. Even the accused did not say that he was keeping chaney ki dal at two places separately; one meant as animal feed and the other fori human consumption. Kali Charan (DW 1) also did not say that. The remaining two prosecution witnesses did not state that chaney ki dal was present in two containers. Even the accused did not say that he was keeping chaney ki dal at two places separately; one meant as animal feed and the other fori human consumption. Kali Charan (DW 1) also did not say that. The statement of Nitaya Kishore (PW 2) that the accused had told the Food Inspector that the dal present in the gunny bag was purchased by owners of horses is not worthy of acceptance. He appears to have come forward to help the accused as he was a resident of the same locality in which the accused resided and ran a shop. There is no good reason to disbelieve the denial of Food Inspector R. M. Chaturvedi (PW 1) ana his Assistant Sanitary Supervisor (PW 3) to the effect that the accused had not give out that the chaney ki dal in question was meant as horse feed only. In the connection it would be pertinent to point out that the accused admitted that he a kirana licence for running a shop. Lakhan Singh (PW 3) stated in cross-examination that the shop of the accused was perchune shop, and this statement was not challenged. It was not denied by the accused that chaney ki dal was used as food for human beings. His witness Kali Charan (DW 1) also admitted that chaney ki dal was used as food for human beings. The price paid by the Food Inspector shows that the dal of which the sample was taken was selling at the rate of Rs. 2.75 per kilogram. It is doubtful if such an expensive dal could be used as horse feed. The report of the Public Analyst showed that the sample of chaney ki dal was good except that it contained 6.7 per cent of khesari dal which was injurious to health. Having regard to all these facts and circumstances, I am inclined to accept the statement of the Food Inspector that the accused was selling chaney ki dal for human consumption and had not told him that it was meant as horse feed only. 9. The legal position is also against the respondent no. 1. The term 'food' has been defined in section 2 (v) of the Act. 9. The legal position is also against the respondent no. 1. The term 'food' has been defined in section 2 (v) of the Act. Their Lordships of the Supreme Court considered the definition of 'food' in the decision State of Tamil Nadu v. Krishna Murthy, AIR 1980 SC 538 and observed:- "In order to be 'food' for purposes of the Act, an article need not be 'fit' for human consumption; it need not be described or exhibited as intended for human consumption, it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food." Even if the respondent no. 1 had given out to the Food Inspector that the 'Chaney ki Dal' was being sold as horse feed only and was not meant for human consumption, it would not have made any difference, because 'Chaney Ki Dal' is an article of food, which is generally or commonly used for human consumption. 10. In the aforesaid decision their Lordships also considered the definition of 'sale' given in section 2 (xiii) of the Act and observed that the definition was wide enough to include every kind, manner and method of sale irrespective of whether sale is for human consumption or for any other purpose including analysis. In view of the above legal position, the sale of 'Chaney Ki Dal' by the respondent no. 1 to the Food Inspector shall be deemed to be sale of an article of food within the meaning of the Act. If such article of food is found adulterated, the penal provisions of the Act would be attracted. 11. The learned counsel for respondent no. 1 has referred to rule 44-A of the Rules framed under the Act and has submitted that this rule prohibits sale or exposure for sale, inter alia, of a mixture of Khesari Dal and Bengal Gram Dal and, therefore, the act of respondent no. 1 in selling Chane Ki Dal in question may be said to amount to a contravention of this rule. The learned counsel has made three submissions in this connection ; the first that the rule is not applicable to the facts in the instant case, because respondent no. 1 in selling Chane Ki Dal in question may be said to amount to a contravention of this rule. The learned counsel has made three submissions in this connection ; the first that the rule is not applicable to the facts in the instant case, because respondent no. 1 was not selling an article of food, but only horse feed ; second that rule 44-A was framed by the Central Government in excess of the power conferred by the Parliament under section 23 of the Act; and third that Central Government had made sub-delegation of power in favour of the State Government inasmuch as it left it to the discretion of the State Government to determine the date from which the rule would come into force within the State, and this kind of sub-delegation was not permissible under the law. 12. A perusal of the charge framed at the time of trial shows that respondent no. 1 was charged for selling adulterated 'chaney ki dal' which was an offence punishable under sections 7/16 of the Act. The charge did not make a reference to rule 44-A. Section 7 of the Act places prohibition on certain kinds of sale. Clause (1) prohibits sale of 'any adulterated food'. Clause (v) prohibits sale of 'any article of food in contravention of any other provision of this Act or any rule made there Bunder." Though in the charge the Magistrate did not mention the particular clause of section 7, it may be fairly inferred that he intended the charge to be for contravention of clause (i) of section 7 of the Act. If contravention of Rule 44-A had been in contemplation of the Magistrate, he would have used some words to indicate it, but there is a complete absence of such words in the charge. The term 'adulterated' was defined in clause (i) of section 2 of the Act as it stood on the date of taking of the sample. Sub-clause (h)of this clause reads thus:- "If the article contains any poisonous or other ingredient which renders it injurious to health." The presence of Khesari dal in the sample of 'chaney ke dal' was injurious to health as reported by the Public Analyst and, therefore, this article of food was covered under sub-clause (h)of clause (i). The Magistrate could legally frame charge against the respondent no, 1 for selling adulterated 'chaney ki dal.' 13. The Magistrate could legally frame charge against the respondent no, 1 for selling adulterated 'chaney ki dal.' 13. The charge against respondent no. 1 was not for contravention of Rule 44-A and, therefore, it is not necessary to consider the various objections raised by the learned counsel for respondent no. 1. However, I would like to observe that the three objections to rule 44-A are not well founded. The first ground must fall in view of the finding of fact recorded earlier and the legal position enunciated in the decision State of Tamil Nadu v. Krishna Murthy (supra). The second ground is also not well founded. Sub-section (1) of section 23 of the Act confers a general power on the Central Government to make rules to carry out the provisions of the Act. Sub-section (1-A) enumerates certain matters regarding which the Central Government may frame rules, but this is without prejudice to the general power conferred under sub-section (1). Clause (f) of sub-section (1-A) empowers the Central Government to frame rules for prohibiting the sale of any substance which may be injurious to health. Judicial notice may be taken of the fact that Khesari Dal (Lathyrus Sativus) is highly injurious to health because its consumption leads to paralysis and some other physical disabilities. It is only desirable that a complete embargo is placed on the sale of such a substance along with any article of food and, therefore, the prohibition contained in rule 44-A cannot be said to exceed the rule making power conferred under section 23 of the Act. The third ground is also not well founded. There is no sub-delegation of any legislative power. Since the conditions differed from state to state, the Central Government rightly thought it desirable to leave it to the discretion of the State Government to choose the date when the rule would come into force within its state. Rule 44-A was framed by the Central Government. Only the date of its enforcement in a state was left to the discretion of the State Government of that particular state to my mind this did not amount to sub-delegation. The grounds of attack on rule 44-A are therefore, not well founded. 14. The learned counsel for respondent no. 1 has not urged any other ground in support of the order of acquittal. The grounds of attack on rule 44-A are therefore, not well founded. 14. The learned counsel for respondent no. 1 has not urged any other ground in support of the order of acquittal. He has also not pointed out any other legal defect in the taking of sample by the Food Inspector or the prosecution of respondent no. 1, or the proceedings taken in the lower court. The payment of price of the sample stands proved by the consistent evidence of all the prosecution witnesses including Nitya Kishore. The preceding discussion clearly makes out an offence under clause (1) of Sec. 7 of the Act read with section 16 (1) (a) (i) of the Act as it stood at the time of taking of the sample, against respondent no. 1 and I find him guilty accordingly. 15. Next I come to the question of sentence. Khesari Dal is a definite health hazard and, therefore, a serious view of the offence has to be taken in this case. think the ends of justice will be sufficiently met if respondent no. 1 is sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 1000/-, and in default, to undergo rigorous imprisonment for three months more. 16. In the result, the appeal succeeds and is allowed; the order of acquittal dated 26-4-1977 is set aside. Ashok Kumar respondent no. 1 is convicted of a offence under section 7 (i) read with section 16 (1) (a) (i) of the Act and is sentence to undergo rigorous imprisonment for six months and pay a fine of Rs. 1000/-. default of payment of fine he shall further undergo rigorous imprisonment for three months. Ashok Kumar respondent shall surrender to serve out the sentence according to law. Appeal allowed.