( 1 ) THE instant appeal is directed against the Order of acquittal passed by the learned Judicial Magistrate of First class, Wanaparthy, by his judgment dated 2-6-2000 in C. C. No. 203 of 1995. ( 2 ) THE Food Inspector, Division-I, mahabubnagar District, laid the complaint against the respondent herein and another under Sections 2 (ia) (m) and 7 (i) of the prevention of Food Adulteration Act, 1954 (for brevity the PFA Act ). It is alleged inter alia in the complaint that the complainant inspected the toddy depot of tcs Group Wanaparthy on 16-3-1995. The respondent/a. 2 is a President of the said depot. A. 1 was found selling toddy in the said premises. At 10. 40 a. m. , on the said day the complainant along with P. W. 4 assistant Food Controller, Zone-VI, hyderabad, and his Attender visited the premises in question and found A. 1 conducting business. Upon introducing himself and suspecting the adulteration of toddy, he immediately called upon P. Ws. 2 and 3 from the local area to act as panchas and in their presence purchased two bottles of toddy of 600 ml. from A. 1 after having paid the price at Rs. 6/- per bottle under Ex. P. 1 cash receipt. He served Ex. P2 notice in form VI on A. 1 while expressing his intention to lift the sample. He then mixed up the purchased toddy thoroughly and divided into three equal parts at the rate of 400 ml. each and poured the contents in three clean and dry empty bottles separately. He then corked and sealed them with sealing wax and official seal, and affixed label bearing No. 64/afc/z-VI/7464/1995 in Ex. P3 on each sample bottle. He then wrapped them in brown paper separately. A paper slip bearing the same code and serial number issued and signed by the local (Health) Authority was affixed to the bottles. He obtained the signatures of A. 1 on the paper slips and also P. Ws. 1 to 3. After having thus completed the procedure in lifting the samples, he got a panchamma in Ex. P4 drafted in English and read and explained the contents thereof to a1 and obtained his signatures on the panchamma. He obtained the signatures of A. 1 on the paper slips and also P. Ws. 1 to 3. After having thus completed the procedure in lifting the samples, he got a panchamma in Ex. P4 drafted in English and read and explained the contents thereof to a1 and obtained his signatures on the panchamma. ( 3 ) ONE sample bottle thus lifted by him was sent on 18-3-1995 along with form VII to the Public Analyst, State Food laboratory, Nacharam, Hyderabad, under intimation to the Local (Health) Authority. Simultaneously, he sent a separate sealed cover containing memorandum in Form VII with specimen impression of seal used to seal the said samples. They were sent through his office Attender under Exs. P6, p7 (a) and P8. The remaining two parts of the samples with seals intact along with memorandum in Form VII in duplicate were sent in sealed packet to the Director and Local (Health) Authority, Andhra pradesh, Hyderabad, through his office attender on the same day under Ex. P7 acknowledgment. The Public Analyst after analyzing the sample gave his report in form III dated 13-4-1995 in Ex. P10 and sent it to the Food Inspector under Ex. P11 covering letter. He opined inter alia in his report that the sample did not conform to alcohol content and was, therefore, adulterated. After obtaining the written consent as required, the complainant filed the complaint before the Court. ( 4 ) THE case as against A. 1 appears to have been split up. A2 alone faced the trial. Pursuant to the summons issued, A2 appeared before the Court. At the time of the trial, on the side of the complainant four witnesses were examined and Exs. P1 to ex. P30 along with Ex. P7 (a) were got marked. After closure of the evidence on the side of the prosecution, when A2 was called upon to enter upon his evidence, he examined two witnesses and got Exs. D1 and D2 marked. ( 5 ) APPRECIATING the evidence on the point, the learned Magistrate found A2 was not guilty of the offence alleged. Consequently, he recorded the order of acquittal. As aforesaid the State is now assailing the same in the instant appeal. ( 6 ) IT is quite surprising to notice that the respondent/accused was prosecuted under the provisions of the PFA Act. Consequently, he recorded the order of acquittal. As aforesaid the State is now assailing the same in the instant appeal. ( 6 ) IT is quite surprising to notice that the respondent/accused was prosecuted under the provisions of the PFA Act. Obviously, the respondent was the President of TCS Group, Wanaparthy which was the licensee to run a toddy depot. The samples lifted in this case by P. W. 1 were from the toddy bottles found in the shop on the date of his inspection after having entertained suspicion of adulteration. The report of the Public Analyst shows that the sample did not conform to alcohol content and was, therefore, adulterated. Toddy is considered to be liquor as defined in clause (21) (a) of Section 2 of the A. P. Excise Act, 1968 (for brevity the Excise act ). The State Government issued the a. P. Excise (Arrack and Toddy Licences general Conditions) Rules, 1969 (for short the former Rules ) and the A. P. Excise (Tapping of Trees and Toddy Shops Special conditions of Licence) Rules, 1969 (for short the latter Rules ). As per Rule 24 of the former Rules, any Excise Officer not below the rank of the Sub-Inspector of excise or Food Inspector appointed under the PFA Act are competent at any time to take samples of arrack or toddy in the possession of the licensee or any other person storing arrack or toddy, for the purposes of analysis. Rule 24 envisages the procedure to be followed in lifting the samples. On such taking of samples as expeditiously as possible they shall be sent to the Court with a requisition to send one of the samples to the Chemical Examiner of the Excise Department having jurisdiction in the region in which the licensed premises are situate for chemical examination. The rule 24-A of the former Rules envisages the manner of packing, sealing, labelling and addressing the samples. Rule 24-B thereof contemplates the manner of dispatching the samples. However, the former rules do not separately envisage any penal provision for the infraction of any of the rules thereof or the conditions enjoined under the licence issued to the licensee. On the other hand, they envisage a provision for cancellation of licence for such infraction. Similarly under the latter Rules, Rule 5 prohibits adulteration. However, the former rules do not separately envisage any penal provision for the infraction of any of the rules thereof or the conditions enjoined under the licence issued to the licensee. On the other hand, they envisage a provision for cancellation of licence for such infraction. Similarly under the latter Rules, Rule 5 prohibits adulteration. The said rule reads that the licensee shall not mix in toddy chloral Hydrate or any other article in the shop or depot or outside except sugar, nor shall he sell or offer for sale adulterated toddy in any shop. Under Rule 4 thereof, it is mandated that the licensee shall possess or sell toddy drawn from the excise trees marked for the shop after payment of tree tax and tree owner s rent thereof. There has been no penal provision under either of these two rules issued by the State government under which the licensee can be prosecuted and punished. Rules 4 and 5 of the latter Rules specifically contemplate the sale of toddy drawn from the marked excise trees without adulteration by mixing the toddy with Chloral Hydrate or any other article. ( 7 ) THE Analyst Report in the instant case shows that the sample did not conform to alcohol content. The sample containing less percentage of alcohol content cannot be termed as adulterated having due regard to the Rules 4 and 5 of the latter rules. The sample has not been analysed by the chemical Examiner as envisaged under the provisions of the former rules. Lifting of the samples and getting the samples analysed as has been done in this case by the Food inspector are in total deviation to the provisions of the Rules envisaged under the former Rules. The penal provisions are contained in the Excise Act. Section 34 thereof prescribes penalties for illegal import, export, transport, manufacture, sell or possess, of any intoxicant. The expression "intoxicant" is defined under clause (19) of section 2 of the Excise Act. As per the said provisions the expression "intoxicant" means any liquor as defined in clause (21) thereof. As discussed hereinabove, clause (21) of Section 2 defines the expression "liquor" which is an inclusive definition and it includes toddy. Therefore, toddy though it is tapped from a tree, is a liquor and consequently intoxicant as per the provisions of the Excise Act. As discussed hereinabove, clause (21) of Section 2 defines the expression "liquor" which is an inclusive definition and it includes toddy. Therefore, toddy though it is tapped from a tree, is a liquor and consequently intoxicant as per the provisions of the Excise Act. If such an intoxicant is sold in contravention of any Rules issued under the Excise Act, it is punishable under section 34 thereof. Section 36 thereof prescribes penalty to holder of licence for his misconduct. Section 37 thereof prescribes penalty for adulteration by the licensed vendor or manufacturer. The provision specifically envisages that if the licensee indulges in mixing or permitting to mix with the intoxicant being sold or manufactured by him any noxious drug or any foreign ingredient likely to add to its actual or apparent intoxicating quality or strength or any article prohibited by any Rule made under the Excise Act. Therefore, adulteration of toddy shall have to be understood as contained in Section 37 of the Excise Act and as contained in Rule 5 of the latter rules. The samples not conforming to the alcohol content, as has been drawn and analysed in the instant case, cannot be considered to be adulterated under the provisions of the Excise Act and the Rules framed specifically in respect of toddy intoxicant. The whole case launched against the respondent herein in that view of the matter is misconceived. ( 8 ) THE competency of the Food inspector to lift the samples cannot be doubted. But the Food Inspector while seeking to lift the sample of any intoxicant when he is specifically authorized or empowered, he shall follow the procedure envisaged under the relevant Rules framed under the provisions of the Excise Act but not the provisions of the PFA Act and the Rules framed thereunder. The prosecution of the respondent in this case is in flagrant violation of the provisions of the Excise Act and the relevant Rules framed in respect of toddy. Therefore, in that view of the matter, the prosecution must fail. ( 9 ) IN any view of the matter, the criminal appeal must fail and is dismissed accordingly.