Bhargava, J. —This is reference by the learned Additional Sessions Judge, No. 1, Jodhpur recommending that the conviction of the petitioner under sec. 16 read with Rule 50 of the Prevention of Food Adulteration Act, 1954, be set aside. 2. The case against the petitioner was that on 2nd October, 1960 at 10.26 A.M. he was found by the Food Inspector preparing and selling sweets and savouries in an open and insanitary place. Before the trial Magistrate the Food Inspector gave his own statement in support of the complaint. The witness who had signed the memorandum of inspection was examined by the accused. The learned trial Magistrate found that petitioner had contravened Rule 50(10) and (11) of the Prevention of Food Adulteration Rules and was thus guilty under sec. 16 of the Act. He imposed a fine of Rs. 50/- on the petitioner. The petitioner preferred a revision before the learned Additional Sessions Judge, No. 1, Jodhpur who had made the above recommendation on the ground that the search and inspection of the petitioners premises by the Food Inspector was in contravention of sec. 10 sub-clause(7) of the Act inasmuch as the Food Inspector did not call two persons to be present at the time when he inspected the premises. 3. The learned Judge repelled the contention raised by the Public Prosecutor before him that the irregularity committed by the Food Inspector did not vitiate the trial, on the ground that he had committed illegality in not complying with the provisions of sec. 10(7) of the Act. 4. Shri Umrao Chand Bapna has appeared in support of the reference. The decision of the High Courts whether the provisions of sec. 10(7) are mandatory or directory are by no means unifrom. The direction to the Food Inspector in sec. 10(7) is prefixed by the words as far as possible and these words have been construed in Kapoor Chand Vs. City of Jabalpur Corporation (l) as indicating the direction to call two witnesses as directory and not mandatory and consequently an irregularity in not complying with its terms would not vitiate the whole trial. 10(7) is prefixed by the words as far as possible and these words have been construed in Kapoor Chand Vs. City of Jabalpur Corporation (l) as indicating the direction to call two witnesses as directory and not mandatory and consequently an irregularity in not complying with its terms would not vitiate the whole trial. On the other hand In re, Raju Konar(2) it was held that : "The expression as far as possible is intended to obviate the necessity of the presence of two persons and securing their signatures if the circumstances under which the ins sector takes the sample were such that there could not possibly be two persons present at the time. It does not mean that when two persons are available he can dispense with them and take protection under the clause as far as possible." In this case although the learned Judge was satisfied that the article of food was adulterated but set aside the conviction because he found that there was a deliberate disobedience of the mandatory provision by the Sanitary Inspector. There are other cases which have taken the view that the non-compliance of the provision of sec. 10(7) does not pre se vitiate the trial and depends on the question whether it has caused any prejudice to the accused or not. Reference may be made to Mohd. Shafaat Husain Vs. The State(3), where it was held that : "It is not correct to say that whenever the provisions of sec. 10(7) of the Prevention of Food Adulteration Act had not been complied with the accused should be acquitted." In State of Mysore Vs. Udipi Co-operative Milk Society Ltd.(4) a Division Bench of that Court held that: "A contravention of sec. 10(7) does not per se vitiate the prosecution. Essential test is one of prejudice to the accused apart from the reliability of the evidence adduced." In Public Prosecutor, Andhra Pradesh Vs. Viswanathan Chetty(5) the learned Judge distinguished the Madras case and held that: "The requirements of sub-sec. 7 of sec. 10 of the Prevention of Food Adulteration Act that a Panchanama should be prepared in the presense of the mediators, may be regarded as mandatory but mere violation or failure to comply with that provision would not, by itself, affect the legality or the validity of the act of the Food Inspector concerned. 7 of sec. 10 of the Prevention of Food Adulteration Act that a Panchanama should be prepared in the presense of the mediators, may be regarded as mandatory but mere violation or failure to comply with that provision would not, by itself, affect the legality or the validity of the act of the Food Inspector concerned. Non-compliance with the provisions will be curable irregularity and the trial is not vitiated." 5. The question whether non-compliance with the provision of the Code of Criminal Procedure affects the validity of the trial or not was discussed by the Supreme Court in Willie (William) Slaney Vs. State of Madhya Pradesh(6) and it was observed by Chandra Sekhara Aiyar, J. that: "The Criminal Procedure Code does not use the word & illegality. Even defects or violation that vitiate the proceedings and render them void are spoken of only as irregularities in sec. 530." Their Lordships in their judgment reviewed several decisions of the Privy Counsel from Subramania Aiyars case (7) to Pulukuri Kotayya Vs. Emperor(8). While reviewing these cases their Lordships observed in paragraph 80 after noticing Subramania Aiyars case(7) that : "Subsequently, however, there have been systematic attempts to explain away the said decision and restrict its scope to narrow limits, This was possible because it was realised even by the Judicial Committee itself that the view taken by them to the effect that a violation of the mandatory provisions of the Code would be an illegality was rather an extreme one. It may be pointed out that even in that case the question of prejudice was not entirely absent from their Lordships minds." The view taken in this case clearly shows that even if there has been violation of a mandatory provision of law, it would not vitiate the trial unless it has caused prejudice to the accused. In a recent decision the Full Bench of the Kerala High Court in Kochan Velayudhan Vs. State of Kerala(9) considered this question at length. The provisions which were violated in that case were secs. In a recent decision the Full Bench of the Kerala High Court in Kochan Velayudhan Vs. State of Kerala(9) considered this question at length. The provisions which were violated in that case were secs. 102 and 165 of the Code of Criminal Procedure and it was held that: "Although the failure to comply with the provisions regulating searches may cast doubts upon the bona fides of the officers, conducting the search, there is nothing in law which makes the evidence relating to an irregular search inadmissible and once it is found that the evidence of the recovery of articles in the search is reliable a conviction based on such evidence is not invalid on the ground of irregularity in search." Their Lordships also considered the decision of the Supreme Court in State of Rajasthan Vs. Rehman (10) and distinguished that case. In my view the correct way of looking at the matter is whether non-compliance of the provisions of sec. 10(7) of the Prevention of Food Adulteration Act by the Food Inspector has caused any prejudice to the accused in the trial or not. The mere fact that he has failed to call two witnesses at the time of his inspection would not vitiate the trial. In the present case the accused admitted that his premises were inspected by the Food Inspector while he was preparing sweets and savouries in the courtyard on account of the approach of Diwali. He has not admitted that any foul smell was coming from that place but he attributed that foul smell to the municipal drain situated at some distance from those premises. The learned Judge has not considered the question whether any prejudice has been caused to the accused due to non-compliance of provisions of sec. 10(7) by the Food Inspector. He has also not expressed any opinion on the merits of the case. The case cannot, therefore, be finally disposed of. So far as the reference is concerned, I am not inclined to accept the view which he has taken for the reasons above mentioned. 6. This reference is therefore, rejected and the case is sent back to the court of the Additional Sessions Judge, No. 1 Jodhpur for decision on merits.