JUDGMENT Amal Kumar Chatterjee, J.: Dr. H. S. Mondal. P.W.1, a Food Inspector appointed by the State Government under s. 9 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), for the area comprised within the Municipal limit of Calcutta, visited the spices factory of M/s. Krishna Chandra Dutta Spices (P) Ltd. at 13, Kali Prasanna Singha Road, Cossipore, on the 19th February, 1972 in the forenoon, where the appellant was found present, as the person in charge, thereof. The said witness disclosed his identity and inspected different varieties of spices stored and exposed for sale and he suspected the chilly powder stored there to be adulterated. Accordingly he took sample of the same measuring 450 gms after observing all formalities and offering the price for it to the appellant which, however, was refused. A part of the sample was sent to the Public Analyst in accordance with the provisions of law, who after analysis, gave an opinion that it was adulterated as it contained only 10 5% of non-volatile ether extract as against the prescribed minimum of 12%, due to the presence of turmeric powder as an extraneous matter. A complaint was filed by the said Food Inspector before a competent Magistrate who, on consideration of the evidence, has found the appellant guilty of the offence punishable under s. 16(1)(a)(i) of the Act and sentenced him to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 2,000 in default of payment to suffer rigorous imprisonment for four months more, rejecting the defence contention that the chilly powder of which sample was taken was not stored for sale. The instant appeal is directed against the order. 2. The record reveals that the sample was taken by the complainants in presence of a witness Sk. Tossadak Hussain, P.W.2 after giving to the appellant, the person-in-charge due notice in writing in the prescribed form (Ext. 2) of his intention to take sample for analysis in accordance with the provisions of rule 12 of the Prevention of Food Adulteration Rules, 1955. The evidence also proves that the procedure laid down under s. 24 of the Act was duly followed in taking the sample in question and sending a part thereof to the Public Analyst for analysis. 2) of his intention to take sample for analysis in accordance with the provisions of rule 12 of the Prevention of Food Adulteration Rules, 1955. The evidence also proves that the procedure laid down under s. 24 of the Act was duly followed in taking the sample in question and sending a part thereof to the Public Analyst for analysis. Anil Bihari Dutta, P.W.3, is the Analyst who had analysed the sample which he found in a condition fit for analysis and in a container with seals intact and corresponding to the specimen thereof sent separately to him. The report of the Public Analyst (Ext. 8) contains the opinion indicated hereinbefore. Nothing has been shown or even alleged before us to discard all these evidence and in such situation, we find no difficulty in holding that a quantity of adulterated chilly powder was found stored at the place and on the date as alleged by the complainant with the appellant, as the person in charge thereof. 3. It has been established by a chain of authorities which was not disputed and need not be repeated that in order to fasten criminal liability under the Act, on any person, it must be shown that the offending article of food was stored by him for sale. Mr. Roy appearing for the appellant has urged that right from the time of taking the sample by the complainant, the appellant had taken the stand that it was not meant for sale and as a matter of fact, the complainant made an endorsement at the instance of the appellant on the reverse of the notice under rule 10 of the rules referred to above, that the stock from which the sample was taken, was stored for considering, if it was fit for sale or whether it should be destroyed. It was further, urged that precisely for this reason, the amount offered by the complainant as price for the sample, was not accepted. It was also argued in this connection, that the place from where the sample was taken, was not a place for sale at all; but it was only a factory where some waste product in the process of manufacture, was invariably produced and in such situation, whatever was found, could not be held to have been stored for sale. It is, however, in the evidence that the appellant had made an application Ext. It is, however, in the evidence that the appellant had made an application Ext. I, under rule 50 of the rules framed under the said Act for a licence for manufacturing for sale/for storage/for sale at premises no. 13, Kali Prosanna Singha Road, Cossipore from where the sample was taken. It has also been elicited in the cross-examination of the complainant that he found a sale counter at that place, although no sale took place in his presence. In the face of the application for licence, Ext. 1, and the purpose stated therein, for which the premises in question was proposed to be used, it does not lie in the mouth of the appellant to say that it was used only as a factory and not as a place for sale. Indeed, this is corroborated by the complainant that he did notice a sale counter there. In this state of evidence, it can be held without any fear of error that the premises from which the sample was taken, was no doubt used as a place for storage for food article for sale. 4. The question which now calls for adjudication is whether in the circumstances as above, a person will have no criminal liability, if at the time of taking the sample by a Food Inspector, he gives out that the stock from which the sample was taken, was not meant for sale. The answer to this question must be in the negative, as otherwise it would be within the power of a person knowingly selling adulterated food to frustrate the object of the Act, by merely taking the stance that the stock from which the sample was taken, was not meant for sale, which could not have been the intention of the legislature. Therefore, if any adulterated article of food is found in the place of business, which is also used as a place for sale, it should be presumed that the article of food was stored for sale. Allahabad High Court in Kashim Bhai vs. State AIR 1956 Allahbad 703 has held that if any medicine was kept in a shop a presumption would arise under s. 114 of Evidence Act that it was for the purpose of sale, unless it was rebutted by the accused. Allahabad High Court in Kashim Bhai vs. State AIR 1956 Allahbad 703 has held that if any medicine was kept in a shop a presumption would arise under s. 114 of Evidence Act that it was for the purpose of sale, unless it was rebutted by the accused. This was no doubt a case under the Drugs Act but it appears to us that the analogy applies with equal force. In a case under the prevention of Food Adulteration Act, it has been observed by Madras High Court in the Public Prosecutor vs. Sami Venkataraman AIR 1958 Madras 382 that if any article of food was found in a shop, it would be presumed to be for sale. Thus these authorities also support the view we have taken as indicated hereinbefore. This is by no means a conclusive presumption but admits of rebuttal by the accused on proof of suitable facts not beyond reasonable doubt by the test of preponderance of probability. In the case on hand, however, there is nothing except a bald statement by the appellant made at the time of taking the sample and reiterated during the trial that the chilly powder from which the sample was taken by the complainant was not meant for sale. This, in our view, must be held to fall short of rebutting the presumption, as otherwise the law could easily be rendered nugatory. If the article of food was not meant for sale then it should not have been kept at all at the place used for sale. The explanation that in a place where the factory is also situated, some waste product of manufacture was only expected to be produced which could not be presumed to have been stored for sale is unworthy of acceptance, at least in the facts and circumstances of this case, firstly because no such point was taken in the Court below nor is there anything on record to lend any support to it and secondly, because chilly powder with some turmeric powder as an extraneous matter does not appear to be any waste product of manufacture. Thus no satisfactory explanation has been given by the appellant for storage of the offending article of food in question for any other purpose and therefore, the inescapable conclusion is that he has committed an offence for which he has been rightly convicted by the learned Court below. 5. Thus no satisfactory explanation has been given by the appellant for storage of the offending article of food in question for any other purpose and therefore, the inescapable conclusion is that he has committed an offence for which he has been rightly convicted by the learned Court below. 5. The conviction must, therefore, be upheld. Regarding the sentence it is found that the offence was committed prior to the amendment of s. 16 by the Prevention of Food Adulteration (Amendment) Act of 1976 and looking to the law as it stood at the relevant time and the nature of adulteration and also the long interval which has elapsed since then, we find that there are adequate and special reason to impose only a sentence of fine upon the appellant. 6. The conviction of the appellant is therefore, upheld but the sentence of rigorous imprisonment for one year is set aside while the sentence to pay a fine of Rs. 2,000/- in default to suffer rigorous imprisonment for four months is affirmed. The appellant is directed to pay the fine forthwith before the learned Magistrate in default of which step will be taken to levy the same and in default of realization to secure the arrest of the appellant and to commit him to prison. Record be sent down at once. Subject to the modification of sentence as above, the appeal is dismissed. Appeal dismissed; conviction upheld, but fine only imposed.