HON’BLE SRI JUSTICE K.G.SHANKAR CRL.R.C.No. 1640 of 2005 O R D E R: The revision petitioner is A.1 in CC No.282 of 1999 on the file of the Judicial First Class Magistrate, Mahabubnagar. In the above calendar case, two accused were charge sheeted u/Sec.16(1)(a)(ii), 7(v) and 2(ia)(d) of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and Rule-47 of the Prevention of Food Adulteration Rules. After recording the evidence of the two witnesses, the learned trial Judge found both the accused guilty of the offence u/Sec.16(1)(ii) read with Section 7(v) of the Act and sentenced each of them to simple imprisonment for a period of six months and to a fine of Rs.1000/- with appropriate default sentences. Both the accused preferred separate appeals before the II Addl. Sessions Judge’s Court, Mahabubnagar. The appeal filed by A.1 (revision petitioner herein) is Crl.A.No.13 of 2000 and the appeal filed by A.2 is Crl.A.No.11 of 2000. Through a common Judgment, the learned II Addl. Sessions Judge, Mahabubnagar, disposed of both the appeals. The learned Sessions Judge found A.2 not guilty of the offence and acquitted him and consequently, criminal appeal No.11 of 2000 was allowed. The learned Sessions Judge dismissed Crl.A.No.13 of 2000 confirming the conviction and sentence recorded by the trial Judge against A.1. Hence A.1 preferred the present revision. 2. Sri M.Damodar Reddy, learned counsel for A.1/revision petitioner inter alia contended that it is unjust to convict A.1 while the appellate court deemed it appropriate to dismiss the case against A.2. He pointed out that A.2 was the licence- holder of the Toddy shop and that A.1 was merely a vendor of toddy in the shop of A-2. I am afraid that the contention of the learned counsel for A.1 cannot be countenanced. The learned sessions Judge deemed it appropriate to acquit A.2 for the reason that he found no complicity of A.2 in the commission of the offence. He however, found A.1 guilty as he considered that A.1 adulterated the food stuff and became liable under the provisions of the Act. 3. The main defence of the learned counsel for A.1 is that toddy is not a food item within the meaning of Sec.2(v) of the Act and that the Act therefore, has no application to the present facts of the case assuming that there was adulteration of food. He also contended that there was no adulteration of toddy and that the alleged adulterated toddy was not found to be unfit for human consumption and that the offence under the Act does not arise. 4. Sec.2(v) of the Act defines food. The definition is more an inclusive definition. Inter alia, food includes any article of food or drink meant for human consumption. Toddy, which is the adulterated food stuff in the present case, is a drink. However, it is the case of the learned counsel for the accused that no alcoholic beverage is covered under the Act. 5. Rule-5 of the Central Prevention of Food Adulteration Rules (‘the Rules’ for short) provides for standards of quality of various items of food and ordains that the standards are mentioned in Appendix-B of the Rules. Annexure-B deals with the definition and standards of quality. Entry No.A.01 of Appendix-B of the Rules deals with non-alcoholic beverages. Entry No.A.29.01 deals with toddy, which is the only alcoholic beverage treated as food item. The standards of quality of toddy are provided under the Rules. Be that as it may, it is evident from Entry No.A.29.01 of the Rules that toddy is indeed a food item. 6. It may be recalled that the main case of the learned counsel for A.1 is that toddy is not a food item within the meaning of the Act and that even assuming that there was adulteration of toddy, A.1 would not be liable for punishment. In support of his contention, he placed reliance upon the decision in Gazetted Food Inspector, Div.I, Mahabubnagar Dist., V. P.Mohan Goud[1], wherein a single Judge of this Court observed that toddy is an excise item and that therefore, it is covered under the provisions of the Excise Act. I may point out that it was not held of this decision that toddy is not a food item and that the Act does not apply to toddy items. However, this court in the decision of Mohan Goud (supra-1) also observed that when samples are lifted in respect of the toddy, the procedure envisaged under the provisions of the Excise Act and Rules should be adopted by the Food Inspector. Admittedly, the Food Inspector followed the procedure contemplated under the Act and the Rules but did not follow the procedure contemplated by the Excise Act. 7. Smt. Zareena Afsar, learned counsel representing the Public Prosecutor, pointed out that the purchaser of lifting of the samples under the Excise Act and that of the Act are similar though not identical and that there was no short fall on the part of P.W.1 in lifting the sample. I agree with the contention of the learned counsel representing the Public Prosecutor that there was no short fall on the part of the prosecution in lifting the sample in the present case. There is no evidence that P.W.1 violated the provisions of the Act in drawing samples. 8. It is the case of the prosecution that the adulteration in this case was saccharin. The learned counsel for A.1 placed reliance upon the decision in Narsingu Ramulu V. The State [2], wherein, this court observed that the sample of toddy was found to contain saccharin and that addition of saccharin to toddy would not be tantamount to adulteration within the meaning of the Act. I agree with the contention of the learned counsel for A.1 that addition of saccharin over toddy cannot be treated as adulteration within the meaning of the Act. 9. Thus, while toddy is a food item within the meaning of the Act, mixture of saccharin with toddy is not tantamount to adulteration of the same within the meaning of the Act. Consequently, the findings of the analyst report that the toddy samples contained saccharin is not a ground to convict A.1. The revision petitioner, who is A-1, therefore, is liable to be acquitted for the offence punishable u/Sec. 16(1)(ii) read with Section 7(v) of the Act. 10. The learned counsel for A.1 also raised a question relating to the propriety in acquitting the licence-holder while convicting the vendor. I do not wish to go into this question, where it is found that A.1 is not liable for punishment. I agree with the contention of the learned counsel for A.1 that the trial court and the appellate court grossly erred in considering the presence of saccharin as tantamount to adulteration of toddy. I therefore, consider that it is a fit case where the Judgment of conviction deserves to be set aside. 11. Accordingly, the criminal revision is allowed. The conviction and sentence recorded by the trial court and confirmed by the appellate court against A.1 are set aside. The bail bonds of A.1 shall stand discharged. The fine amount, if already paid by the accused before the trial court, shall be refunded to him. ________________ K.G.SHANKAR,J Dt.30.09.2011 Mjl/* [1] 2005(2)ALD(Crl.) 689(AP) [2] 1987 Crl.L.J. 1771