SOMASUNDARAM, J.

(1) THIS is an appeal against the acquittal of the respondent who was charged for an offence under the Food Adulteration Act, that is for selling adulterated milk. In such a case the first essential requisite to be established is that the milk from which the Sanitary Inspector gets a small quantity from the vendor as sample is intended for sale. In the present case the defence is that the accused was taking milk to the coffee-hotel of his brother who was owning cows and buffaloes in his house and that it was only, the milk got from the buffaloes in his house that he was carrying to his brothers hotel and that it was never intended for sale but that when the Sanitary Inspector demanded he could not refuse to give as that would amount to an offence. In support of his case the accused examined his brother as D. W. 1 who spoke to the fact that the milk which was brought by his brother (accused) was that get from the buffaloes which he was having in his house and that it was never intended for sale. The Sanitary Inspector as P. W. 1 in his chief-examination stated that he saw the accused selling milk and that when he demanded milk, the accused sold to him a small quantity but in cross-examination he admitted that he did not see anybody purchasing milk from the accused. On the prosecution evidence it has not been established that the milk from which the Sanitary Inspector purchased samples from the accused was intended for sale. The learned District Magistrate, no doubt, correctly stated the point for determination, that is, whether the milk which the accused was carrying was intended for sale and whether it was adulterated with water. There is no doubt that the milk was adulterated as the Chemical Examiner to whom the sample milk was sent for analysis has certified that it contained 15 per cent, of water. But in acquitting the accused the learned District Magistrate held that there was no sale as such to P. W.

1. Here the learned District Magistrate is not correct. What was given by the accused to P. W. 1 is undoubtedly sale but what was really to be decided was whether the milk which the accused was taking was intended for sale. On that question there is room for doubt and, therefore, the acquittal, of the accused can be justified on that ground.

(2) IMMEDIATELY after the acquittal of the accused, on the evidence of his brother, d. W. 1, the authorities should have prosecuted D. W. 1 because according to his evidence the milk which the accused was taking was that got from his buffaloes in his house and that it was intended for his hotel. Milk is sold as such to customers in hotels though it is generally used for coffee. Therefore D. W. 1 should have been prosecuted on his own evidence for being in possession of adulterated milk intended for sale but that has not been done. On the evidence in the case the guilt of the accused had not been established beyond all doubt. The acquittal is, therefore, justified though not for the reasons stated by the learned District magistrate. The appeal is dismissed.