JUDGMENT D.S. Mathur, J. - This is a Criminal Revision by Nisar Ahmad, owner, and Munney, Salesman, against the order of the Additional Sessions Judge of Allahabad confirming their conviction and sentence. They have both been convicted under Sec. 16 of the Prevention of Food Adulteration Act for contravention of Sec. 7 thereof, and have been sentenced to a fine of Rs. 400 each, in case of default, four months' R. I. 2. The prosecution case is that on 30-11-1960 at about 9-45 a. m. Raghunath Prasad, Chief Food Inspector (P.W. 1) along with O.P. Vaish Food Inspector (P.W. 2) and one Dan Bahadur went to the shop of Nisar Ahmad situate in Daira Shah Ajmal, P.S. Kotwali, Allahabad. Nisar Ahmad was not there, but Munney, applicant No. 2, was at the shop selling commodities. Raghunath Prasad purchased mustard oil from Munney and after giving intimation of the intention of sending the sample to the Public Analyst, he divided the mustard oil so purchased in three parts and sealed them in three different bottles. Raghunath Prasad gave one sealed bottle to Munney and deposited the other two in the office of the Health Officer. One of these two was later sent to the public Analyst for analysis and report. The report of the public Analyst is Ex. ka-4. He reported that the sample did not conform to the standards prescribed for mustard oil. On receipt of the report of the Public Analyst, the Chief Food Inspector obtained the sanction of the Medical Officer of Health and thereafter submitted a charge-sheet is court for the prosecution of both the applicants. 3. Both the applicants pleaded not guilty. Nisar Ahmad has naturally pleaded ignorance, but the case of Munney is that the Chief Inspector had taken sample of the mustard oil which a third person Abdul Aziz (D.W. 1) had left at his shop before going out for purchasing other commodities. Both the lower courts disbelieved the defence version and also the testimony of Abdul Aziz and relying upon the prosecution story convicted the applicants of the offence punishable under Sec. 16 of the Prevention of Food Adulteration Act. The finding of fact recorded by the lower courts is challenged on a few grounds to which I shall make a reference one by one. The finding of fact recorded by the lower courts is challenged on a few grounds to which I shall make a reference one by one. The first point contended is that the report of the Public Analyst was not admissible in evidence as he did not give the data on which he based his opinion. This contention is chiefly based upon the percentage of linseed oil as noted in the report. The relevant part of the report of the Public Analyst runs as below :- "I.............. declare the result of the analysis to be as follows :- 1. Butyro-refractometer reading at 40 C. 61.9 2. Saponification value 177.2 3. Iodine value 122.4. 4. Free Fatty acids (as Oleic acid) 0.65% 5. Test for Argemone oil Negative 6. Unsaponifiable matter within limit 7. Linseed oil 21.7% 8. Bellier's test (Turbidity Temperature 25.0 C. and am of the opinion that the sample is of a nature that it does not conform to the standards prescribed for mustard oil in the following respects :- 1. Butyro-refractometer reading at 400C exceeds the maximum limit of 60.5. 2. Saponification value and Iodine value exceed the maximum limits of 176.0 and 108.0 respectively. The sample contains a small proportion of linseed oil. This report has been made after making due allowance for all incidental and unavoidable admixtures in the sample." 4. It is true that the mode of determining the percentage of linseed oil has not been noted in the report; but in the circumstances of the present case, all the more when the public Analyst has expressed his opinion on the basis of the first three data, lack of sufficient data with regard to the determination of the percentage of linseed oil cannot be given any importance. The term "adulterated" has been defined in section 2(i) of the Prevention of Food Adulteration Act. We are concerned with clause (1) thereof. In other words, an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. The prescribed standards of mustard oil are contained in Cl. A. 17.06 of Appendix B of the Prevention of Food Aulteration Rules. The standards to which mustard oil must conform are as below :- "(a) Butyro-refractometer reading at 400C 58.0 to 60.5. The prescribed standards of mustard oil are contained in Cl. A. 17.06 of Appendix B of the Prevention of Food Aulteration Rules. The standards to which mustard oil must conform are as below :- "(a) Butyro-refractometer reading at 400C 58.0 to 60.5. (b) Saponification value 168. to 176. (c) Iodine value 96 to 108. (d) Unsaponifiable matter Not more than 1.2 per cent. (e) Free fatty acid as Oleic Acid Not more than 3.0 per cent. The test for anemone oil should be negative." The public Analyst found that the first three, namely, Butyro-refractometer reading at 400C, saponification value and Iodine value, exceeded the maximum limits of 60.5, 176.0 and 108.0, respectively. These readings or values of the sample were 61.9, 177.2 and 122.4. Before a final opinion can be expressed whether the sample was of adulterated oil, one shall have to look into the importance of this rule. I shall make a detailed reference to what is meant by "iodine value". This point can be better appreciated with reference to the science of chemistry. 5. Organic Chemistry (Second Revised Edition) by H.L. Rohatgi, G. S. Misra, and R. D. Tiwari was produced before me and a perusal thereof makes it clear that mustard oil is a fixed oil or `fatty oil' and such oil consists of esters of glycerol with higher fatty acids, saturated or unsaturated. These two constituents shall for the sake of brevity be hereinafter referred to as `saturated acid' or `unsaturated acid,' though technically speaking both are esters of glycerol with higher fatty acids. Unsaturated acids present in vegetable oils like mustard oil usually correspond to stearic acid and contain 2, 4, and 6 hydrogen atoms less than the saturated acid indicating the presence of one, two and three double bonds, respectively. Unsaturated acids are probably responsible for the unsaturated character of oils: they can add iodine and the amount of iodine that can be absorbed by 100 gms of oil is called its iodine value. Further, the greater the unsaturation, the greater is drying power and the higher is the iodine value. To put it in simple words, iodine value depends directly on the percentage of unsaturated acids. In the present case, iodine value was 122.4 against the prescribed maximum of 108. Further, the greater the unsaturation, the greater is drying power and the higher is the iodine value. To put it in simple words, iodine value depends directly on the percentage of unsaturated acids. In the present case, iodine value was 122.4 against the prescribed maximum of 108. In other words, the mustard oil purchased by the Chief Inspector contained esters of glycerol with higher unsaturated acids in excess of the prescribed limits of variability. One of the constituents of mustard either is "unsaturated acid" and when this constituent was found to be present in excess of the maximum prescribed limit, the mustard oil shall, in the eye of law, amount to an adulterated article. Mustard oil is an article of food, no two opinions are possible on this point. In other words, the mustard oil, the sample of which was taken by the Chief Food Inspector, was an adulterated article of food. 6. In this connection it may also be observed in brief that the saponification value of oil depends upon the nature of glacerylester of stearic acid. Where the saponification value is above the maximum limit it means that the glyceryl ester of stearic acid was on an average, of higher group oil can contain glycerylester of stearic acid of different groups and when the average is high it means that there were more esters of higher group. In other words, therefore, other constituents of the mustard oil were also present in quantities in excess of the prescribed maximum limit. 7. There existed sufficient data in the report of the public Analyst to establish beyond doubt that the constituents of the sample were present in quantities in excess of the prescribed limits of variability and, consequently, the lower courts were right to hold that the mustard oil, the sample of which was sent to the Public Analyst was, an adulterated one. The Second point contended is that the Chief Food Inspector had not complied with the provisions of Sec. 10(7) of the Prevention of Food Adulteration Act, and as the non-compliance was of a mandatory provision, none of the applicants could be convicted on the basis of the sample said to have been taken by the Chief Food Inspector. Reliance was placed upon certain decisions of Madras and Kerala High Courts. In re. Reliance was placed upon certain decisions of Madras and Kerala High Courts. In re. Raju Konar, AIR 1959 Madras 118 Somasundaram, was satisfied that the milk was adulterated, but still for the deliberate disobedience of the mandatory provisions, he reluctantly set aside the order of conviction. Once the courts of law are judicially satisfied as to the nature of the article of food, the order of conviction has to be maintained, unless from administrative point of view one takes a strict view in a case or two. Where the order of conviction is set aside on administrative ground, that cannot be treated as a judicial pronouncement of that Court. The Madras case cannot, therefore, show that the disregard of Sec. 10(7) of the Prevention of Food Adultration Act is one which shall invalidate the proceeding or that from the disregard the Court shall presume that the accused was prejudiced or that it occasioned a failure of justice. 8. In State v. Mohammad Ibrahim, AIR 1959 Kerala 351 non-compliance of Sec. 10(7) was considered to amount to a flagrant violation of the provisions of the Act. It was at the same time observed that if this was treated as an irregularity, it had resulted in prejudice to the accused. While making this observation the Supreme Court decision in Sunder Singh v. State of Uttar Pradesh, A.I.R. 1956 S.C. 411 was distinguished. In City Corporation of Trivandrum v. V. P. N. Arunachalam, AIR 1960 Kerala 356 non compliance of the provisions contained in Sec. 10(7) was held to be a serious irregularity causing prejudice to the accused. With due respect I am inclined to differ with the general observations made in these two cases of Kerala High Court. Whether prejudice has been caused to the accused or it has occasioned a failure of justice is a question of fact which shall depend upon the facts and circumstances of the case. The non-compliance of Sec. 10(7) can cause prejudice to an accused in one case and not in the other. Consequently, the law as laid down in the two Kerala cases, that from non-compliance of a mandatory provision of law prejudice to the accused shall be presumed, is in my opinion stretching the law to a limit which cannot be considered to be proper. 9. Consequently, the law as laid down in the two Kerala cases, that from non-compliance of a mandatory provision of law prejudice to the accused shall be presumed, is in my opinion stretching the law to a limit which cannot be considered to be proper. 9. There does not exist any good ground to distinguish the Supreme Court decision and not to apply it to a case under the Prevention of Food Adulteration Act. There does exist some difference between Sec. 10(7) of the Prevention of Food Adulteration Act and Sec. 103, Cr. P. C., for the simple reason that in one case sample of articles of food is taken from a shop or a public place, it can even be that the Food Inspector enters a building to take sample, while Sec. 103 refers to the search of a house during investigation of a crime, but in both the cases they are properties recovered or taken in possession which are of importance. When a house is searched under Sec. 103, Cr. P. C. the recovery of the articles can be used against the accused. Similarly, when the Food Inspector takes a sample or takes any other action under the other sub-sections of Sec. 10, he takes into his possession evidence which may later be used against the accused. The effect of the search under Sec. 103, Cr. P. C. or of the taking of sample under Sec. 10(7) of the Prevention of Food Adulteration Act is the same. At this place it may also be observed that Sec. 103, Cr. P. C. as drafted is more inflexible than Sec. 10(7) of the Prevention of Food Adulteration Act. Under Sec. 103, Cr. P. C. it is necessary for the police official to call upon two respectable persons of the locality to witness the search. On the other hand, Sec. 10(7) lays down that the Food Inspector shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures. Sec. 10(7) does not lay down that the persons so called upon must be of the locality, nor does it say that such persons shall be respectable ones. Sec. 10(7) does not lay down that the persons so called upon must be of the locality, nor does it say that such persons shall be respectable ones. It is a different thing that as a rule of caution and prudence one may insist that the Food Inspector should, as far as possible, call upon two respectable persons of the locality to witness the taking of the sample. When the Supreme Court has not regarded non-compliance of Sec. 103, Cr. C. P. to be fatal to the case, there is no reason why we should regard non-compliance of Sec. 10(7) to be fatal as to vitiate the trial or justify an inference in each and every case, that as a result of the non-compliance the accused has been prejudiced. To put it differently, the provisions of Sec. 10(7) are not mandatory such that for non-compliance thereof the prosecution case shall be viewed with doubt or that on the ground of non-compliance alone the accused shall deserve acquittal. It is, however, necessary that the Food Inspector should comply with the provisions of this rule and as far as possible call upon two respectable persons to be present at the time the action is taken and to take their signature in accordance with the rules. 10. Coming to the instant case Munney admitted the taking of the sample. He did not say that the sample taken was of a different oil. None of the applicants have pleaded enmity with the Chief Food Inspector. What Munney applicant had pleaded was that the oil had been left at the shop by a stranger to be taken back on his return from the market after purchasing other articles. The Chief Food Inspector is apparently an independent person having no grudge against the applicants. When the applicants did not challenge the taking of the sample it cannot by any stretch of imagination be said that the non-compliance of Sec. 10(7) has caused prejudice to the accused-applicants. In other words, therefore, the report of the Public analyst based on the sample taken by the Chief Food Inspector could be used against the applicants to hold that the mustard oil found at their shop was adulterated. 11. The third point contended is that, according to the Food Clerk, no seal was affixed on the package sent to the public Analyst. 11. The third point contended is that, according to the Food Clerk, no seal was affixed on the package sent to the public Analyst. This was not necessary keeping in mind that the sealed bottle must have been kept in another Packet (Package) to save it from being damaged in transit. What is necessary is that the sample be properly sealed and not that the outer package be also sealed. The outer package need not be sealed, all the more, when more than one sample are packed therein. Whether the sample related to the instant case would have been apparent from the label affixed thereon and the sample of the seal with which the Chief Food Inspector had sealed it. 12. The next point contended is that the sample of mustard oil was not sent in a separate cover but was placed in the same package along with other samples. The sample had been despatched along with the sample of the seal with which the Chief Food Inspector had sealed the sample, with the result that the identity of the sample could easily be ascertained. In any case, the applicants could take steps for analysis and examination of the sample in their possession as laid down in Sec. 13(2). Consequently the non-compliance of the rule cannot be deemed to have occasioned failure of justice. 13. The next point contended is that the prosecution has failed to prove that the mustard oil found at the shop was stored there for sale. This contention is apparently based upon the presumption that it was necessary for the prosecution to lead direct evidence as to the purpose of storage of the article in question. Whether the article stored in the shop was meant for sale or for some other purpose was a matter within the special knowledge of the accused; and consequently the prosecution had merely to bring circumstances on record which could justify an inference that the article was so stored for the purpose of sale. Thereafter the burden shall shift on the accused, under Sec. 106 of the Evidence Act to prove their intention or knowledge at the time of the storage. In the instant case the mustard oil was found in the shop. Apparently, the applicant no. 1 was a dealer in mustard oil. Thereafter the burden shall shift on the accused, under Sec. 106 of the Evidence Act to prove their intention or knowledge at the time of the storage. In the instant case the mustard oil was found in the shop. Apparently, the applicant no. 1 was a dealer in mustard oil. From these circumstances the courts could presume that the mustard oil found in the shop was meant for sale, and thereafter the burden lay upon the accused to show that it was not stored for sale. Munney applicant did plead that the mustard oil had been left at the shop by a third person but this plea was not accepted by the lower courts. This finding of the lower courts cannot be said to be improper and cannot be interfered with in revision. When the defence plea had no substance, no other opinion was possible except that the mustard oil, the sample of which was taken by the Chief Food Inspector, was one meant for sale and there was thus contravention of Sec. 7 of the Prevention of Food Adulteration Act for which the applicants could be convicted. 14. The next point contended is that Raghunath Prasad was not a properly appointed Food Inspector as contemplated by Sec. 9 of the Prevention of Food Adulteration Act, on the ground that no fresh notification was issued after the creation of the Nagar Mahapalika of Allahabad. This question was not raised before the lower courts and as it is a mixed question of law and fact, it cannot be permitted to be raised for the first time in revision. 15. The revision has thus no force and it is hereby dismissed. The stay order is vacated.