Judgment: This is an appeal filed by the Food Inspector, Alleppey Municipality against the judgment of the District Magistrate of Alleppey acquitting the two accused who were prosecuted for offence under section 16(1)(a)read with section 7 of the Prevention of Food Adulteration Act, XXXVII of 1954. (hereinafter referred to as the Act). The first accused is a trader in vegetables, butter etc., in Shop No. 62/4 in Mullakkal Ward in the Alleppey Town. The second accused is a servant under him. On 19th February, 1963, P.W.1 a Food Inspector visited the shop of the accused and purchased 375 grains of butter from a stock of butter stored and exhibited for sale in the shop. The price was paid to the second accused and after observing all formalities the article was sampled and one sample was sent to the Public Analyst for analysis. The mahazar regarding sampling was signed by the second accused and the attestors. In the report of the Analyst Exhibit P-4 the result of analysis is shown as follows: “Moisture 21.6 Per cent. Milk fat 77.6 Per cent. Reichert value of the milk 33.9 Per cent. Butyro refractometer reading at 40°C 40.0 Per cent.” And he has given his opinion that the sample contained 5 percent of excess moisture and was therefore adulterated. The first accused admitted that the second accused was his servant in the shop, during the relevant period. The second accused when questioned stated that he is an employee under the first accused, that he had sold butter to P.W.1 and received-its price. According to him the butter had been kept in water for preservation and that is the reason why the sample contained moisture. No witnesses were examined in their defence. The learned District Magistrate acquitted the accused on the ground that standards have been fixed only for butter prepared out of cow’s or buffalo’s milk and what the accused sold might as well have been butter prepared from goat’s milk and so long as no standards have been prescribed for goats’ butter it cannot be said that the sample was adulterated. The accused had never alleged that the butter stored in the shop and what was supplied to the Food Inspector was wholly or partly the product of goat’s milk. What was demanded was butter and what he sold was also butter. The accused had never alleged that the butter stored in the shop and what was supplied to the Food Inspector was wholly or partly the product of goat’s milk. What was demanded was butter and what he sold was also butter. The article had, therefore, to conform to the requirements was specified in Item A. 11. 05 of Appendix B to the Rules framed under the Act and as it did not do so it was clearly adulterated and punishable under section 16 of the Act. Learned Counsel for the accused referred to the decision in Public Prosecutor v. Sangammal1. In that case the plea of the accused was that she had sold only goat’s butter which is not the case here. Reference may in this connection be made to the decision in Bal Kishan v. The State2, where it was held that: “Where an article is sold as butter it is for the seller to allege and prove that the sample contained admixture of the produce 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.” I am in respectful agreement with the view taken in this case. The acquittal is, therefore, unsustainable and has to be set aside. Both the accused are found guilty and convicted as charged. The first accused is sentenced to pay a fine of Rs. 50, in default of payment to undergo rigorous imprisonment for one month. The second accused being only a servant is sentenced to pay a fine of Rs.10 in default of payment to undergo rigorous imprisonment for one week. Time for payment of fine one month from" this date. M.C.M. ----- Appeal allowed.