JUDGMENT D.S. Mathur, J. - This is an appeal by the Nagar Swastkya Adhikari of the Nagar Mahapalika of Agra against the order dated 30-3-1966 of the Magistrate First Class, Agra, acquitting the respondent, Ram Phal, of an offence punishable under Section 16 of the Prevention of Food Adulteration Act (to be hereinafter referred to as the Act) read with Section 7 thereof. 2. The material facts of the case are that on 21-7-1965, at about 7 p.m., V. N. Singh, Food Inspector, found the respondent selling milk in Mohalla Bagh Muzzaffet Khan, within the limits of the Nagar Mahapalika of Agra. On inquiry the Food Inspector was told that the milk was a mixed milk of cow, she goat and buffalo. The Food Inspector purchased 660 cc. of the milk and divided it into three parts, each part was sealed in a bottle, to which 16 drops of formalin of 40 per cent Strength were added. Each bottle was sealed and labelled. One of the bottles was given to the respondent and the other two were deposited in the office of the Nagar Swasthya Adhikari. One of these two bottles was sent to the Public Analyst for analysis and report.- The Public Analyst reported that the sample had 3.6 per cent fat and 6.6.per cent non-fatty solids other than milk fat. As the milk was an adulterated one, the Nagar Swasthya Adhikari filed a complaint and the Magistrate took cognizance thereof on 24-11-1965. 3. The respondent, pleaded not guilty. He admitted the taking of the sample and the addition of formalin to it. He also admitted having received the notice under Rule 12 of the Prevention of Food Adulteration Rules. He, however, denied that he was paid for the milk, adding that the milk was of a cow which had recently given birth to a calf and was not meant for sale. The respondent examined two witnesses in his defence. 4. He also admitted having received the notice under Rule 12 of the Prevention of Food Adulteration Rules. He, however, denied that he was paid for the milk, adding that the milk was of a cow which had recently given birth to a calf and was not meant for sale. The respondent examined two witnesses in his defence. 4. The Magistrate acquitted the respondent on three grounds : firstly, that there was no evidence to show that the Food Inspector had taken the sample in clean and dry bottles; secondly, that the third part of the sample retained in the office of the Nagar Swasthya Adhikari had not been produced before the Magistrate First Class as required by Section 11 (l) (c) (iii) of the Act; and thirdly, that the Public Analyst had not reported that he had compared the seals on the container with the specimen seal received separately. In connection with the last point it was observed that Rules 7 and 18 of the Prevention of Food Adulteration Rules were mandatory. and non-compliance thereof were fatal to the prosecution. 5. No one has put in appearance for the respondent. However, the learned Advocate for the appellant produced before me the case law both in his favour and against him. It shall be found that there exists some conflict in the decisions of the various High Courts as to the applicability of Section 114 of the Evidence Act. Absence of evidence was not given importance and the official act was deemed to have been performed regularly, that is, in accordance with the prescribed rules, in Kemal Singh v. State, 1957 ALJ 89, Food Inspector, Cannapore Municipality, Cannapore v. Pandayalappil Kannan, A.I.R. 1966 Kerala 70, Public Prosecutor Andhra Pradesh v. Viswanatham Chetty, A.I.R. 1960 AP 96 and Swaroop Ram v. The State, A.I.R. 1963 Raj 233. The presumption was, however, not drawn on account of the provisions being mandatory in Mary Lazrado v. State of Mysore, A.I.R. 1966 Mysore 244; State of M.P. v. Abbasbhai Tyab All Bohra, 1967 MPLJ 872 and M/s. Ultadanga Oil Mill v. The. Corporation of Calcutta, 1963 (2) Cri LJ 448. The presumption was, however, not drawn on account of the provisions being mandatory in Mary Lazrado v. State of Mysore, A.I.R. 1966 Mysore 244; State of M.P. v. Abbasbhai Tyab All Bohra, 1967 MPLJ 872 and M/s. Ultadanga Oil Mill v. The. Corporation of Calcutta, 1963 (2) Cri LJ 448. Under Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (c) thereof provides that the Court may presume that judicial and official acts have been regularly performed. In considering whether such a maxim does or does not apply to the case before it, the Court shall have regard to facts like the performance of the judicial act under exceptional circumstances. 6. The presumption drawn under Sec 114 can be a strong or weak one, depending upon the facts and circumstances of the case; of course, the presumption is a rebuttable one. In case of a mandatory provision, presumption can be drawn with a greater force than where the provision is discretion any. 7. Coming to the facts of the present case, if the bottles or containers are obtained locally at the time of taking. the sample, it shall not be possible to presume that the bottles or containers were clean and dry; but where the Food Inspector brings with him bottles it can be presumed that the bottles had been cleaned earlier and, as required under the rules, they were clean. and dry. The extent of cleanness necessary for taking a sample becomes a material question. In case of milk, whether the sample is or is not adulterated; depends upon the percentage of fat and non-fatty solids found in the sample. It is the minimum which has been prescribed, and- not the maximum. Consequently, if there was some fat or non-fatty solids still clinging to the bottle in which the sample of milk was kept and sealed, both the fatty and non-fatty solids would increase. Ordinarily, there would be no reduction in the fatty and non-fatty solids. The. milk kept in a bottle which is not clean can however curdle earlier. Consequently, if there was some fat or non-fatty solids still clinging to the bottle in which the sample of milk was kept and sealed, both the fatty and non-fatty solids would increase. Ordinarily, there would be no reduction in the fatty and non-fatty solids. The. milk kept in a bottle which is not clean can however curdle earlier. Hence, if the sample of the milk had not curdled by the time of the examination, the result of analysis is not likely to be affected if the bottle was not absolutely dry and clean. 8. If the bottle was dirty and contained water or some liquid, it would be detected by the person from whom the milk is obtained for purposes of the sample. The point in dispute would generally be whether the bottle was absolutely dry and clean, and not that it was dirty or contained water or other liquid. 9. In the circumstances, in the case of milk, absence of evidence as to the condition of the container or bottle should not ordinarily be attached undue importance, and it can be presumed under Section 114 of the Evidence Act that the official act was done regularly in accordance with the rules. The same cannot, however, be said where the result of analysis may be affected by the existence of impurities on a minute scale; for example, if under the prescribed standard, the article meant for sale must be free from moisture, traces of moisture in the container will make the sample, even though pure, an adulterated one. Similarly, if the sample of pure ghee is sealed in a container in which hydrogenated oil had been previously kept and the container had not been thoroughly cleaned, traces of hydrogenated oil can be detected although the ghee was pure. 10. Where the article being sold is a homogeneous compound or solution, no evidence is necessary as to the manner in which the sample was taken; but if the article is not a homogeneous one, it is necessary for the Food Inspector to specify the manner in which the sample was taken. In such cases, even if a presumption can be drawn, it would be a weak one and for all practical purposes no such fact can be presumed against the accused. 11. A mandatory provision does not necessary invalidate the proceeding. In such cases, even if a presumption can be drawn, it would be a weak one and for all practical purposes no such fact can be presumed against the accused. 11. A mandatory provision does not necessary invalidate the proceeding. The effect of non-compliance of Section 103 of the Criminal Procedure Code was considered in two Supreme Court decisions.. In Radha Kishan v. The State of Uttar Pradesh, A.I.R. 1963 (SC) 822 it was observed that- "where the provisions of Sections 103 and 165, Criminal P. C. are contravened the search can be resisted by the person whose premises are sought to be searched. It may also be that, because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure." 12. It was, however, made clear that beyond these two consequences no further consequence ensue, and the seizure of the articles was not vitiated. Similarly, it was observed in Sunder Singh v. State of Uttar Pradesh, A.I.R. 1956 (SC) 411 that the non-compliance of Section 103, Criminal Procedure Code would not affect the legality of the proceeding. These two cases lay down the proposition that the disregard of every mandatory provision does not necessarily invalidate the proceeding, though the rule of prudence and caution demands that the evidence be judged carefully; of course, the extent of prudence to be applied shall depend upon the nature of the case and the facts and circumstances thereof. 13. Technically speaking, therefore, where the Food Inspector was not moved by malice or other considerations, absence of evidence on minor points will not invalidate the action taken by him. It can be presumed that the action was taken regularly in accordance with the rules. However, where the nature of the case and the facts and circumstances thereof are such that there must be evidence as to the compliance of the rules, either no presumption under Section 114 of the Evidence Act can be drawn or the presumption drawn would be a weak one, and the slightest opposition on the part of the accused would be sufficient to repel it. As already mentioned above, the taking of sample of milk does not stand in such a category, and absence of evidence of the bottle or container being clean and dry, cannot be given any undue importance, unless challenged by the accused, and in such a case, there would be evidence on the record to prove whether the bottle of container was or was not clean and dry and, if not clean and dry, what was the extent or nature of impurity? 14. In the instant case, the accused no-where pleaded in his statement that the bottles in which the sample were taken. were not clean and dry. No such question was also put to the Food Inspector, nor have the defence witnesses made such all allegation. In the circumstances, to acquit the respondent for the reason that the Food Inspector made no categorical statement that the bottles were clean and dry, was not proper. In case the point had been raised during the argument, there were only, two options available to the Magistrate either to disregard the mixed question of law and fact or to record the evidence of the parties on the point. 15. The learned Magistrate was also under an erroneous impression that it was necessary for the Food Inspector to produce during the trial the third part of the sample. What Section 11 (I) (c) (iii) lays down is that the third part of the sample Anil be retained for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory, as the case may be. The third part has to be retained and why it is so retained is given in the other part of the clause. The third part is so retained either for production or for analysis by the Director. It is not necessary that the Food Inspector must produce the third part of the sample at the time of the making of , the complaint or during the trial. He must produce it when so ordered by the Magistrate, may be suo tnotu, or on the request of the accused. 16. It is not necessary that the Food Inspector must produce the third part of the sample at the time of the making of , the complaint or during the trial. He must produce it when so ordered by the Magistrate, may be suo tnotu, or on the request of the accused. 16. In case the intention of the legislature was that the third part of the sample must be produced before the Magistrate at the time of the making of the complaint, or during the trial, it would have been made clear either in the above clause or at some ether place that the third part shall be handed over to the Magistrate on the commencement of the trial. 17. The third point has also no force. In his report the Public Analyst had made IL clear that the sample was properly sealed . and fastened and the seals were intact and unbroken. The word "properly" can suggest that the seals tallied with the specimen seal. It would be advisable for the Public Analyst to make it clear in his report that the seal on the container tallied with the specimen seal; but when the certificate is granted by the Public Analyst in the manner prescribed in Form III, it would be wrong to hold that there had been no comparison of the seals and the seals on the container may be different to the specimen seal. If there existed any doubt in the mind of the Magistrate, he could examine the Public Analyst personally or on commission, as may be necessary, to satisfy himself if the seal did tally with the specimen seal, whether sent separately or with the sealed container. This Court has regarded Rules 7 and 18 of the Prevention of Adulteration Rules not to be mandatory, and hence the prosecution shall not fail simply because the specimen seal had not been sent to the Public Ananlyst in a separate cover. It is a question of assessment of evidence, evidence which can be assessed after the examination of the Public Analyst, if necessary. 18. The Magistrate has taken an erroneous view of the law and the accompanying facts, and the acquittal on the above three grounds was not justified. The learned Magistrate has not recorded any finding on merits. It is a question of assessment of evidence, evidence which can be assessed after the examination of the Public Analyst, if necessary. 18. The Magistrate has taken an erroneous view of the law and the accompanying facts, and the acquittal on the above three grounds was not justified. The learned Magistrate has not recorded any finding on merits. In view of the acquittal on technical grounds remand of the case shall be proper to enable the Magistrate to examine the Public Analyst, if necessary. 19. Remand of the case was opposed by the Advocate for the appellant, for the reason that it would prolong the litigation. It was also mentioned by the learned Advocate that the Magistrate may regard the retrial as a fresh trial and hence on account of delay may acquit the accused for the reason that he was deprived of the benefit of Section 13 (2) of the Act. We can not presume that the trying Magistrate would act arbitrarily. After all, the accused must apply under Section 13 (2) of the Act promptly, and not after waiting for a 1 ear or two. If he is not prompt in making the application, the Court shall assume that he is guilty of lathes and such a person cannot be said to have been prejudiced by being unable to seek the benefit of Section 13 (2) of the Act by having the sample examined by the Director of the Central Food Laboratory, Calcutta. 20. The appeal is hereby allowed, the order of acquittal is set aside and the case against the respondent, Ram Phal, is remanded for a fresh trial in accordance with the law.