# 72J FOOD INSPECTOR, CALICUT C0Rl'ORA't10N v. CHERUKATrlL GOPALAN AND ANR

- **Citation:** [1971] Supp. 1 S.C.R. 721
- **Court:** Supreme Court of India
- **Decided:** 1971-05-06
- **Case number:** Criminal Appeal No. 281 of 1968
- **Bench:** C. A. Vaidialingam, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/72j-food-inspector-calicut-c0rl-ora-t10n-v-cherukatrll-gopalan-and-anr-5403
- **Pages:** 10

## Headnote

Prevention of Food Adulteration Act, 1954 (37 of 1954)-Section 16
(l)(a)(i)-Sale of Food for ana/ysit-To be guilty of offence under section,
food need not be intended for sale and person selling need not be a dealer.
A sale of an article of food for analysis being "sale" within the meaning of s. 2(xiii) of the Prevention of Food Adulteration Act, 1954, an
anicle of food sold to the Food Inspector, if found to be adulterated. the
M:Cuse<i will be guilty of an offence punishable under s. l6(1)(a)(i) read with
s. 7 of the Act. The article of food purchased by the Food Inspector need
not nave been taken out from a larg~r quantity intended for .sale and
Ibo person from whom the article of food has been purchased need not
be a dealer as such in that article, [729 G]
Where sugar purchased by the Food Inspector from the Respondents'
tea stall was found to be adulterated and the Respondents were charged
with an offence under s.
16(1) (a) (i) of the Act, the respondents must
be held guilty of tLe oIIt:nct: charged wilh, even though the tiugac purchasec( was not intended for sale as such and the respondents were not dealers
in ~ar.
Mangaldas Raghavii Ruparel and Anr. v. The State of Maharashtra
JJnd Anr., (1965] 2 S.C.R. 849, State of Gujarat v. Asa11tlas Kimmairai
Kevalramanni, Al.R. 1.964 Guj. 191, Municipal Board, Faizabad v. Lal
Chand Sura;ma/ and Anr., A.I.R. 1964 All. 199 and The Public Prosecutor
v. Palanisami, A.l.R. 1965 Mad. 98, referred to.
Public Prosecutor v, Kandasamy Reddiar, A.l.R. 1959 Mad. 33, Explained.
ln re : Govinda Rao, A.I.R. 1960 Andhra Pradesh 366, disapproved.
CR!MINAL AB.PELLATB JURISDICTION : Criminal Appeal No.
281 of 1968.
Appeal by special leave from the judgment and order dated
June 26, 1968 of the Kerala High Court in Criminal Appeal
No. 113 of 1968.
A. Sriedharan Nambiar, for the appellant.
S. K. Mehta, K. L. Mehta, and K. R. Nagaraja, for the
respondents.

## Text

72J
FOOD INSPECTOR, CALICUT C0Rl'ORA't10N
A
v.
CHERUKATrlL GOPALAN AND ANR.
May 6, 1971.
[C. A. VAIDIALINGAM AND A. N. RAY, JJ.]
Prevention of Food Adulteration Act, 1954 (37 of 1954)-Section 16
(l)(a)(i)-Sale of Food for ana/ysit-To be guilty of offence under section,
food need not be intended for sale and person selling need not be a dealer.
A sale of an article of food for analysis being "sale" within the meaning of s. 2(xiii) of the Prevention of Food Adulteration Act, 1954, an
anicle of food sold to the Food Inspector, if found to be adulterated. the
M:Cuse<i will be guilty of an offence punishable under s. l6(1)(a)(i) read with
s. 7 of the Act. The article of food purchased by the Food Inspector need
not nave been taken out from a larg~r quantity intended for .sale and
Ibo person from whom the article of food has been purchased need not
be a dealer as such in that article, [729 G]
Where sugar purchased by the Food Inspector from the Respondents'
tea stall was found to be adulterated and the Respondents were charged
with an offence under s.
16(1) (a) (i) of the Act, the respondents must
be held guilty of tLe oIIt:nct: charged wilh, even though the tiugac purchasec( was not intended for sale as such and the respondents were not dealers
in ~ar.
Mangaldas Raghavii Ruparel and Anr. v. The State of Maharashtra
JJnd Anr., (1965] 2 S.C.R. 849, State of Gujarat v. Asa11tlas Kimmairai
Kevalramanni, Al.R. 1.964 Guj. 191, Municipal Board, Faizabad v. Lal
Chand Sura;ma/ and Anr., A.I.R. 1964 All. 199 and The Public Prosecutor
v. Palanisami, A.l.R. 1965 Mad. 98, referred to.
Public Prosecutor v, Kandasamy Reddiar, A.l.R. 1959 Mad. 33, Explained.
ln re : Govinda Rao, A.I.R. 1960 Andhra Pradesh 366, disapproved.
CR!MINAL AB.PELLATB JURISDICTION : Criminal Appeal No.
281 of 1968.
Appeal by special leave from the judgment and order dated
June 26, 1968 of the Kerala High Court in Criminal Appeal
No. 113 of 1968.
A. Sriedharan Nambiar, for the appellant.
S. K. Mehta, K. L. Mehta, and K. R. Nagaraja, for the
respondents.
The Judgment of the Court was delivered by
B
c
D
E
p
G
Valdlallnpm, J~This appeal, by special leave, by the Food
H
Inspector, Calicut Corporation, is directed against the judgment
and order dated 1.une 26, 1968 of the. Kerala High Court in
46-1 S.C. fodia/71
722
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
Criminal Appeal No. 113 of 1968 confirming the acquittal of
the respondents of an offence under s. 16(1)(a)(i) of the Prevention ot Food Adulteration Act, 1954 (Act No. 37
of
1954)
(hereinafter to be referred to as the Act).
The first respondent is the Manager and the second respondent, his wife, are the owner and licencee of a tea stall in the
premises No. 41777 Customs Road, Calicut. They were accused
Nos. 1 and 2 respectively.
On November 17, 1965
at about
9.45 AM., the Food Inspector, Calicut Corporation, purchased
from the first respondent 600 grams of sugar for a price of 78 paise
for analysis from the stock of sugar kept in the premises to be
used in the preparation of tea sold to customers in the said tea
stall run by the second respondent under the licence issued by
the Corporation. The quantity of sugar so purchased was sampled
as per the rules in the presence of the first accused and
the
witnesses.
One portion of the sample was sent to the Public
Analyst for analysis. The Analyst in his report Ex. P. 3 dated
December 28, 1965 has certified that the sample contained artificial sweetner saccharin equivalent to about seven percent of
cane sugar and therefore it was adulterated. In fact the analysis
is as follows
"Ash
Total sugar
as cane sugar
Saccharin
0.02 per cent
96.00 per cent
14.0 mgs. per 100 gms."
On the basis of this report the Food Inspector
filed
un
March 21, 1966 a complaint against the two accused
in
the
Court of the District Magistrate, (Judicial), Calicut. After setting
out the necessary facts and the report of the Public Analyst, the
complaint alleged that the sale of such sub-standard food which
was adulterated is prohibited under s. 7 read with item A. 07.01
in appendix to the rules framed under the Act and therefore, it
was an offence.
There is a reference to the conviction of the
first accused on prior occasions. It is not necessary for us now
to refer it.
Both the accused were charged of an offence under s. 16(l)(a)(i)
of the Act for having sold on November 17, 1965 600 gm. of
sugar for a price of 78 paise to the Food Inspector from
the
tea stall and which sugar was found to be adulterated by the
Public Analyst.
Both the accused pleaded not guilty and even denied having
sold sugar to the Food Inspector.
POOD INllPECTOR v. c. OOPALAN (Vaidlalingam,J.)
723
The learned District Magistrate recorded the following findings :
The "sugar" is an article of food
as
defined under
s. 2(v) of the Act ; the Food Inspector purchased sugar from the
tea stall of the accused, sampled it then and there and handed
over to the first accused..
There 'was a sale as defined in the
Act of sugar to the Foo"d Inspector by the first accused;
the
purchase and the sampling by the Food Inspector were
done
in strict compliance with the provisions of the Act. The report
of the Public Analyst establishes that the sugar purchased from
the tea stall of the accused was adulterated.
But in order to
hold that· the accused have committed an offence, it must be
established that the accused were selling sugar as such in the
tea stall, which is not the fact in this case. On the other hand,
the accused were selling tea and the sugar was kept only for
the purpose of being mixed with tea which was sold to the
customers and the Food Inspector has clearly admitted that sugar
as such is not in the tea stall of the accused.
Inasmuch as
sugar was not kept for sale by the accused, they are not guilty
of any offence.
In this view, both the accused were acquitted
under s. 258(1) of the Code of Criminal Procedure.
A
The State filed an appeal before the Kerala High
Court
challenging the acquittal of the respondents. The High Court
agreed with the findings of the District Magistrate that there was
a sale as defined in the Act of sugar to the Food Inspector by
the accused on November 17, 1965 and the said
article was
adulterated as is established by the report of the Public Analyst.
The High Court set before it the principle that the prosecution
will have to establish, under such circumstances, that the persons
from whom the. article of food had been purchased are those
"selling those articles as such".
The High Court applied the
test to find out whether the respondents "are persons selling
sugar as such" and answered the question
in the
negative.
Agreeing with the findings of the District Magistrate that the
sugar in the tea stall of the accused was not kept for sale as
such but for being utilised in the preparation of tea which was
being sold to· the customers, the High Court finally held that
the purchase by the Food Inspector of sugar from the respondents
cannot be considered to be a purchase under the Act so as to
make them liable ·of the offence with which they were charged.
Mr. A. S. Nambiar, learned counsel for the appellant, urged
that the views of boTh the High Court as well as the District
Magistrate that. the respondents are not guilty as they are not
dealers in sugar as such, is erroneous, specially after a finding
that there has been a sale to the Food Inspector under the Act
and the article was found . to be adulterated.
According
to
Mr. Nambiar when once the article of food is sold to the Food
B
c
D
E
F
G
H
ru
•
c
D
F
G
H
SVPlBMB eoUll.T RBPOllTB
(19'flJ SUPP. S.o.Jt.
Inspector for analysis, it is of no consequence that the said'
'1rticle was not intended to be sold as sucb by the accused, ~
a sale of an article of food under the Act attracts all the consequences that fiow from such sale as provided under the Act.
On the other hand, Mr. S. K. Mehta, learned counsel forthe 1e:>p<>111.lents, urged that in order to make the respo!'!dents
liable, it must be established that they were dealers in sugar as
such.
In view of the concurrent findings based upon the ad·
mission of the Food Inspector that the accused were not clea!ers
in sugar as such and that the sugar kept by them was intenaed
to be used in the preparation of tea, their acquittal is justified.
Before we proceed to deal with these
contentions with
reference to the provisions of the Act and certain decisions placed
before us by both the learned counsel, it is to be recorded that
Mr. Nambiar has made it clear that his clients do not want the
respondents to be convicted, in case his contentions are acceptea.
On the other hand, he stated that the Corporation is only anxious
to have a decision of this Court on the legal point.
We will
now refer to some of the material provisions of the Act.
Section 2(1) defines the various expressions
enumerated
'therein. In particular it is only necessary to refer to clauses
5, 12, 13 and 14 defining the expressions "food''. "prescribe",
_"sale" and "sample" respectively. They are as follows :
"(v) "food" means any article used as food or drink for
human consumption other than drugs and water and
includes-
(a) any article which ordinarily enters into. or is used
in the composition or preparation of human food,
and
(b) any fiavouring matter or condiments : "
"(xii) "Prescribed means prescribed by rules made
under
this Act."
(xiii) "sale" with its grammatical variations and cognate ex· ·
pressions, means the sale of any article of food, whether
for cash or on credit or by way of exchange and whether
by wholesale or retail, for human consumption or use,
or for analysis, and includes an agreement for sale, an
offer for sale. the exposing for sale or having in possession for sale of any such article and includes also an
attempt to sell any sueh article;
POOD INIPECl'OR J, (l, QOP4UK (Y(dd/Q/111gam, J.)
.(xiv) "samplo" means a samplo of any articlo of food taken
under tho provisions of this Act or of any rules made
thereunder."
There is no controversy that sugar with which we
aro
oeoncemed in this case is an article used as food for human consumption or at any rate it is an article which ordinarily entered
into or is used in the composition or preparation of human food.
Even accordng to the respondents the sugar so kept in ·their tea
stall was intended to be used in the preparation of tea which
was being sold to the customers. A reference to the definition
>Of 'sale' will also show that a sale of any article ·of food for
analysis comes within .that definition.· That the sample of food
purchased by the Food Inspector in this case satisfies the defini-
.tion of 'sale' in clause 14 is also beyond controversy.
Before we refer to certain other sections, it is necessary to
11tate that ss. 4(2) & 23(1) of the Act give power to the Central
Government to make rules in respect of the matters referred to in
those sub-sections.
By virtue of the powers conferred under
ss. 4(2) and 23(1) the Central Government have framed the
Prevention of Food Adulteration Rules, 1955 (hereinafter to be
referred to as the Rules). Rule 5 provides that the standards of
·quality of the various articles of food specilied in Appe:idix B
to the Rules are as defined tn that Appendix. Appendix B deals
with the definition and standards of quality. Item A. 07.01 of
-_the appendix deals with cane sugar and enumerates its contents.
-It is not necessary for us to deal with the definition of the expression 'adulterated' in s. 2(i) as well as the requirements under
-item A. 07.01 of the Appendix B .. of the Rules as there is no
challenge to the report of the PuWic Analyst that the sugar in
question was adulterated, as it does not conform to the requirements of the item mentioned above.
In fact the High Court
as well as the District Magistrate have also proceeded on that
basis.
We will now revert back to the Act.
Section 7 prohibita
the manufacture, sale etc. of certain articles of food.
It is not
necessary to refer to the various items enumerated therein. But
we will refer only to the main part of s. 7, whicl> is as follows
·"Section 7. No person shall himself or by any person
<>n his behalf manufacture for sale, or store, sell or
rlistribute---
..
It will be seen that. s. 7 deals not only with manufacture,
we, storing or distributing but also selling. We are particular1y
emphasisin11 this ·aspect because it has been missed in this case
721
B
c
D
E
G
K
7211
•
c
D
E
F
G
JI
SUPREME COURT REPORTS
(1971] SUPP. s.c.R.
not only by the two courts but also in some of the decisions, to
which our attention has been drawn. Section 10 deals with the
powers of the Food Inspector.
Under sub-section IO(l)(a)
the
Food Inspector has power to take samples of any article of food
from any of the persons enumerated in sub-clauses (i)
to
(iii)
Section 12 gives a right even to a purchaser, wh6 is not the Food
Inspector of having the article of food analysed by a
Public
Analyst in accordance with that section. Section 16(1)(a)(i), breach
of which is alleged against the respondents is as follows :
"S. 16(1) If any person-
(a) whether by himself or by any other person on
bis behalf imports into India or manufactures for sale,
or stores, sells or distributes any article of food-
(i) which is adulterated or misbranded or the sale of
which is prohibited by the Food (Health) authority in
the interest of public health;
..
Here again it is to be noted that any person who sells any article
of food which is adulterated shall be punishable. in accordance
with that section. The Food Inspector purchased sugar on
November 17, 1965, from the tea stall of the respondents
on
payment of price. The said transaction clearly amounts to a sale
under s. 2(xiii) of the Act. From the definition of "sale" already
quoted, a sale of an article of food for analysis is a sale. Under
such circumstances it amounts to a sale under the Act as has
been laid down by this Court in Mangaldas Raghavji Ruparel and
another v.
The State of Maharashtra and· another(').
It was
held in the said decision that there is a special definition
of
"sale" in s. 2(xiii) of the Act whcih specifically includes within
its ambit the sale for analysis.
Mr. Nambiar referred us to certain decisions to the effect
that when once there is a sale as defined in the Act of an article
of food, it is not necessary to establish that the accused
are
dealers in that article as such.
In the decision
reported
in
Municipal Board, Faizabad v. Lal Chand Surajmal and another(")
the accused had a shop wl'.ere tea was sold and for the purpose
of preparing tea, they had stored milk which was a necessary
ingredient for the preparation of tea. The Food Inspector took
a sample of milk from the tea shop and on analysis it was found
to be adulterated. The question was whether the accused could
be convicted for an offence under s. 16(1)(a)(i) read witlt s. 7
of the Act. The plea of the accus¢ was that the milk kept in
965) 2 S.C.R. 894,
.R. 1964 All. 199.
)
POOD INSPECTOR v.·c. <JOPALAN (Valdlalingam,J.)
the tea shop was not intended to be sold as such but was kept
for being used in the preparation of tea. The High Court held
that though the accused could not be convicted for storing the
milk, which was found to be adulterated as the milk was .not
stored for sale as such, nevertheless, they did 'sell' milk to the
Food Inspector.
As the said sale was of adulterated milk, the
accused have committed an offence. It is not necessary for us
in the case before us to consider whether the expression 'stored/
occurring in s. 7 and s. 16 should be interpreted as storage for
purpos•s of sale. The case on hand can be disposed of without
deciding that aspect.
In the State of Gujarat v. Asandas Kimmatrai Kevalramanni(') the Food Inspector purchased 'Dahi' (Curd) and on ana·
lysis it was found to contain fifty percent fat deficiency. The accused was prosecuted for an offence under s. 16(1)(a)(i) of the Act.
The accused pleaded that he had not stored 'Dahi' for purposes
of .sale but he was keeping it only for the preparation of 'Lachhi'
and he further pleaded that the 'Dahi' purchased by the Food
Inspector was not taken from a larger quantity which was stored
by him for the purpose of sale as 'Dahi'. Here again· we are
-
11ot concerned with the observations of the learned Judge as to
what constitutes storing under the Act.
But the learned Judge
held that it is not necessary that the accused should be a dealer
in 'Dahi' as such and it is also not necessary that the 'Dahi'
sold to the Food Inspector must have been taken out of
a
larger quantity intended for sale. It was held that so long as
there has been a sale as defined under the Act to the Food
Inspector of Dahi and when it was found adulterated, the accused
is gulity of the offence.
To a similar effect is the decision of The Public Prosecutor
v. Palanisami Nadar(') where it was held that when there has
been a sale to the Food Inspector for analysis of an article o~
food, which, when found to be adulterated, the accused is guilty
of an offence.
Mr. Mehta, learned counsel for the respondents, referred us
727
A,
B
c
D
E
F
to the decisions reported in Food Inspector, Kozhikode v. Punsl
G
Desai.I!) Narain Das v. State,(') and Rameshwar Das Radhey
Lal v. The State,('). In all those decisions the Court has considered the qnestion as to whether the storage of an article under
(1) A.I.R. 1964 Gui. 191.
(2) A.I.R. 1965 Mad. 98.
H
(3) A.I.R. 1959 Kerala 190.
(4) A. J.R. 1962 All. 82.
(5) A.I.R. 1967 Puniab 132.
, ..
B
c
D
E
G
H
SUPIU!MB COUB.T RIPOl.TS
[1971] BUPP. 8.C.L
the Act must be for the purpose of sale. We have already indicated that the said question does not arise for consideration bef'JN
us and we do not propose to refer to those decisions in ·detail. But
we may point out that the decision in Narain Das v. State(')
has been distinguished by the same Court in Municipal Board,
Faizabad v. Lal Chand Surajmal and another,(') to which we
have already referred.
Mr. Mehta referred us to two decisions; The Public Prosecutor
v. Kandasamy Reddiar(') and in Re. Govinda Rao(') in support
of his contention that the article of food purchased by the Food
Inspector must be shown to have been kept by the accused for
purposes of sale as such. In other words, according to the learned
counsel the person "from whom an article of food is pvrchased
by the Food Inspector must be a dealer in such article".
In
the Public Prosecutor v. Kandasamy Reddiar(') the findings of
the two courts were that the accused was carrying the milk taken
from his own buffalo for his own use.
This decision does not
assist the respondents. But it must be stated that the said decision
does not consider the legal effect of a sale to a Food Inspector under
the Act and its consequences. But we may point out that under
s. lO(l)(a) the Food Inspector has got power to take samples of
any article of food from the persons enumerated in sub-clauses
(i) to (iii). It will be seen in particular from sub-clause (ii) of
s. IO(l)(a) that the Food Inspector can take samples from "any
person who is in the course of conveying, delivering or preparing
to deliver such article to a purchaser or consignee".
In the case before us if the accused had purchased, the
sugar and it was in the process of being conveyed to be delivered
to the accused, the Food Inspector could have taken the sample
under s. 10 from any person in the course of conveying the
article for delivery. Similarly, even if the sugar had been delivered
to the accused, under sub-clause (iii) of s. !O(l)(a), the Food
Inspector could have taken the samples from them as consignee
of the article.
In the In Re. Govinda Rao(') lhe accused who was the proprietor of a Coffee and Meals Hotel was prosecuted for having
sold adulterated ghee to the Food Inspector. The defence was
that. the accused was not a dealer in ghee as such and that the
said article was stored in the Hotel for the purpose of being
served along with the meals to the customers or for using it in
the preparation of other articles of food. The accused was acquitted on the ground that in order to constitute an offence, the
(I) A.LR.. 1962 All. 82.
(2) A.I.R.. 1964 All. 199.
(3) A.I.R.. 1959 Mad. 333.
(4) A.I.R.. 1960 Andhra Pradesh 366.
' }
roGD INSP!CTOll Y, o. GOPALAN (Jlo(dkz/lngam, 1.)
accused should have been a dealer in ghee as such and that the
prosecution cannot succeed by the Food Inspector merely taking
·adulterated ghee which was stored by the hotel keeper for being
served with the meals or for preparing other articles of food.
We are not inclined to agree with this decision because it
has not considered. the legal effect of a sale to a Food Inspector
under the Act.
We do not also find any indication in the Act
that when a Food Inspector purchases an article of food from a
person, the latter must be a dealer in that article as such.
Mr. Mehta, learned counsel for the respondents relied on
ss. 12 and 14 to support his argument that the Act contemplates
that the person from whom an article of food is purchased must
be a dealer of that article as such and if that article is found
to be adulterated, a person can be found guilty under the Act.
If article A is stored for the purpose of being used in the preparation of other articles of food, the fact that article A purchased·
by the Food Inspector is found to be adulterated will not make
the person selling that article liable under the Act. Section 12
gives a right to any purchaser, other than the Food Inspector, to
have the article purchased by him analysed by the Public Analyst
in accordance with that section. Section 14 makes it mandatory
on a manufacturer, distributor or dealer of any article of food
to give a warranty when he sells an article about the nature and
quality of that article to the vendor. We are not able to find
how these two sections support the propositions enunciated by
Mr. Mehta. If a third party had purchased sugar from the tea
stall of the accused and if the said purchase constitutes a "sale"
under the Act, s. 12 gives such a party to have the article analysed
by a Public Analyst. Similarly, s. 14 is also of no assistance to
·the respondents.
To sum up we are in agreement with the decisions reported
in Municipal Board,
Faizabad v.
Lal Chand Surajma/
and
another(') and The Public Prosecutor v.
Palanisami Nadar('')
to the extent to which they lay d<;.>wn the principle that when there
is . a sale to the Food Inspector under the Act of an article of
food, which is found to be adulterated, the accused will be guilty
of an offence punishable under s. 16(1)(a)(i) read with s. 7 of the
Act. We further agree that the article of food which has been
purchased by the Food Inspector need not have been taken out
from a larger quantity intended for sale. We are also of the opi·
nion that the person from whom the article of food has been
purchased by the Food Inspector need not be a dealer as such in
that article. We are not inclined to agree with the decisions
laying the contrary propositions.
(1) A.I.R. 1964 All. 199.
(2) A.I.R. 1965 Mad. 98.
7at
B
c
D
E
F
G
•
''130
A
B
c
D
E
F
!UPRBMB COURT REPORTS
[1971) SUPP. S.C.R.
Coming to the case on hand, on the finding of the
two
courts the sugar in question has been found to be adulterat@d.
The purchase by the Food Inspector from the accused of sugar
for purposes of analysis is a sale under s. 2(13) of the
Act.
Section 7 prohibits a person from selling adulterated article of
food.
Similarly, under s. 16(1)(a)(i) any person who sells adul·
terated food commits an offence and is punishable therein. The
sugar which is the commodity before us is food under s. 2(5)
of the Act.
We have already pointed out that sugar by itself
js an article used as food or at any rate it is an article whiclr
ordinarily enters into or is used in the composition or preparation
of human food.
In this case the sale was for analysis and the
article was an article of food and in view of the concurrent findings of both the courts that it was adulterated, the respondents
have contravened ss. 7 and I 6(l)(a)(i) of the Act. Hence it must
be held that the respondents are technically guilty of the offence
with which they were charged and they have
been wrongly
acquitted by the High Court and the District Magistrate.
But
in view of the fact that the appellant has argued the appeal only
as a test case and does not challenge the acquittal of the res·
pondents, we merely set aside the order and judgment of the·
High Court. But we may make it clear that apart from holding
the respondents t.echnically guilty, we are not setting aside the
order of acquittal passed in their favour.
In the result the judgment and order of the High Court are
set aside and the appeal allowed.
We find that on December 12, 1968 when granting special
leave this Court had directed the appellant to deposit Rs. 1000 /-
to be used by the respondents for their costs and liberty has been
given to the respondents to withdraw the amount to pay fee to
the counsel, in case they engage a counsel. As the respondents
have engaged a counsel, they are entitled to withdraw from the
court deposit the amount representing the costs incurred by them
and the fee payable to the counsel under the relevant rules. Surplus,
if any, will be refunded to the appellant.
G
K.B.N.
Appeal allowed.