JUDGMENT : Acharya, J. - This is an appeal against the judgment of acquittal passed by the Sub-divisional Magistrate, Bhadrak in Criminal Case No. 3 C.C. 12/65. 2. The prosecution case, in brief, is as follows : On 28-1-1965 the Food Inspector, Bhadrak N.A.C., visited the accused's shop at Chandan Bazar within the jurisdiction of Bhadrak N.A.C. and found about 20 bags of Arhar Dal stored in the said shop godown for sale as an article of human food. The Food Inspector (p.w. 3) bad issued an advance intimation to the accused, and on the aforesaid date purchased 700 grams of the Raid Dal as sample for getting the same tested and analysed. In the presence of the accused the said sample was kept in three clean and sealed bottles. One of them was given to the accused, the second one was sent to the Public Analyst, Orissa, for chemical analysis, and the third bottle was kept with p.w. 3 himself. The Public Analyst submitted his report Ext. I stating that the colouring matter detected in the sample was Metanil yellow (Coaltar dye) and opined therein that the sample was adulterated as the said colouring matter was not permitted under the Prevention of Food Adulteration Rules (hereinafter referred to as the P.F.A. Rules). On this report p.w. 3, the Health and Food Inspector, Bhadrak N.A.C., drew up a prosecution report against the accused, and on obtaining the sanction of the Executive Officer, N.A.C., submitted the same to the S.D.M., Bhadrak, for the prosecution of the accused. The said complaint was withdrawn, as the sanction of the Bhadrak N.A.C. as such was not obtained on the same, and was resubmitted on 11-12-1965 with the proper sanction of the Councillors of Bhadrak N.A.C. and this case u/s 16(1)(a) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) proceeded against the accused. 3. 3. The accused in his defence took various pleas as follows: (a) That due to his extreme old age and acute blood pressure it was not physically possible for him to personally look after his business; (b) That the accused is only a partner of the shop and he is not personally liable for the storage of the food articles; (c) That the accused is not responsible in any manner as he was not the person who mixed the colouring matter with the Arhar Dal and the same was kept in packed bags as sent by the consignor; (d) That the said colouring matter mixed with the Arhar Dal was not an integral part of the food article and as such the said colouring matter was easily separable by the process of washing and winnowing after which it would be fit for human consumption; (e) That there is nothing prescribed in the said Act as to the standard of purity of colouring matter so that it can be distinguished from the permissible colour; and lastly (f) That the Public Analyst had not given a detailed report describing the constituent part of the sample which he detected in course of his analysis. 4. The prosecution examined three witnesses. p.w. 3, the Health & Food Inspector, Bhadrak N.A.C. purchased the sample from the accused in his shop in the presence of p.ws. 1 and 2, who were respectively the Inspector of Vigilance, and the Food and Health Inspector, Bhadrak. These three witnesses narrated in detail the facts regarding the purchase, the seizure of the sample from the accused, and sealing the same in bottles at (sic) shop. These witnesses corroborated each other regarding the above facts they narrated, and there was no challenge to the above aspect of their evidence by the defence. The defence examined one witness, a businessman of the locality, whose evidence would be discussed in the proper context if necessary. 5. The Court below acquitted the accused mainly on two grounds: (i) that in the report Ext. 1 from the Public Analyst no details are mentioned regarding his opinion and the scientific basis on which he could detect the offensive coal tar dye, as a colouring matter in the Arhar Dal seized in this case, and as such Ext. 5. The Court below acquitted the accused mainly on two grounds: (i) that in the report Ext. 1 from the Public Analyst no details are mentioned regarding his opinion and the scientific basis on which he could detect the offensive coal tar dye, as a colouring matter in the Arhar Dal seized in this case, and as such Ext. 1 loses its weight; (ii) that the mere mixture of the colouring matter cannot reduce the Dal adulterated so as to come within the scope of the definition in Section 2(i) of the Act, as the Dal becomes free from the colour by undergoing a process of washing and winnowing before it is used in the preparation of food. The other pleas taken by the defence were all discarded by the Court below. 6. Mr. Rath, the learned Counsel for the Appellant, contested the above findings of the Court below as incorrect and megal. Mr. B. Ray, the learned Counsel for the Respondent, while supporting the above findings, took a few other points which would be taken up for discussion after I deal with the above two grounds on which the impugned order of acquittal was recorded. 7. In dealing with the first point regarding non-disclosure of details in Ext. 1 as mentioned above, it must be remembered that on analysis it was found, as per report Ext. I of the Public Analyst, that the sample of the Dal contained Metanil yellow, a coaltar dye, which was not permitted under Rule 28 of the P.F.A. Rules to be used in any food material. This report was submitted in the form prescribed under P.F.A. Rule 7, and as per Section 13(5) of the Act it may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276, Indian Penal Code, unless the same is superseded by a certificate issued by the Director of Central Food Laboratory as provided for u/s 1 : 1(3) of the Act. In this case there is no such certificate from the Central Director. In case the accused wanted to contest the above report of the Public Analyst he could have taken steps u/s 13(2) of the Act to get the sample analysed through the Director of Central Food Laboratory and to et a certificate from him to that effect. In this case there is no such certificate from the Central Director. In case the accused wanted to contest the above report of the Public Analyst he could have taken steps u/s 13(2) of the Act to get the sample analysed through the Director of Central Food Laboratory and to et a certificate from him to that effect. Without taking any such step the accused could not seek shelter under the plea that the report of the Public Analyst could not be accepted on it was wanting in some details as stated above. It was not necessary for the Public Analyst to state in detail the reasons or the basis on which the conclusions stated in the report were arrived at. In Re: V.K. Abdul Azeeze and Another as in this case, the Public Analyst stated in his report that Tur Dal was adulterated as it contained "Metanil yellow". It was held therein: In such a case there is no need for the Court to insist that the report should contain the technical processes by which the presence of the dye was identified. If the defence had any bona fide dispute as to the correctness of the analyst's report it was always open to them as provided for in Section 13 to send a sample for analysis by the Central Food Technological Institute. It may also be pointed out that the accused here could not have escaped liability even if the certificate did not name the type of coaltar dye used. Rule 28 lays down that even the permitted varieties of coal tar dyes cannot be used in food stuffs except those enumerated therein and we do not find all among the items mentioned. The same is the view of the Allahabad High Court in Nagar Mahapalika of Kanpur Vs. Sri Ram and Another wherein their Lordships reiterated the earlier well settled view of the Court that "the report of the Public Analyst u/s 13 of the Act need not contain the mode or particulars of analysis, nor the test applied, but should contain the result of analysis, namely, date from which it can be inferred whether the article of Food was or was not adulterated as defined in Section 2(1) of the Act". To the same effect is the decision in Municipal Committee, Ambala Vs. Basakhi Ram. To the same effect is the decision in Municipal Committee, Ambala Vs. Basakhi Ram. Apart from these decisions we have now the decision of the Supreme Court in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another wherein their Lordships observed as follows: We fail to see the necessity of report as to how the calculations have Public Analyst. This settles the controversy on the point. This being the settled view, the reasoning adopted by the learned trial Court in discarding Ext. 1 as of no weight, is clearly not sustainable. Thus the report of the Public Analyst (Ext. 1) holds ground and is good evidence to be taken into consideration in this case. 8. The second point as stated in paragraph 5 on which the Court based the order of acquittal is also not sustainable. Section 7(1) of the Act prohibits manufacture for sale, or storing, selling or distributing any adulterated food. The word 'adulterated' has been defined in Section 2(i) of the Act, and sub-clause (j) therein is as follows: (i) if any colouring matter other then that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article: Metanil yellow (Coaltar dye), detected in the sample, is not included in the list of permitted coaltar dyes appended to Rule 28, and as such the same cannot at all he added to the Arhar Dal, which undoubtedly if an article of food, very commonly taken by people of this part of the country. Moreover, coal tar dyes of and kind whatsoever, even the permitted varieties, cannot be used in Arhar Dal as this article of food is not enumerated in Rule 29. In Re: V.K. Abdul Azeeze and Another. To come within Section 2(i)(j) of the Act the mere presence of any colouring matter other then those prescribed in the rules is sufficient. Rule 23 prohibits "addition" of a colouring matter to any article of food except those that are specifically permitted by the rules. Rule 28 prohibits the "use" of any coaltar dye or a mixture thereof except those that are mentioned under the said rule. Rule 23 prohibits "addition" of a colouring matter to any article of food except those that are specifically permitted by the rules. Rule 28 prohibits the "use" of any coaltar dye or a mixture thereof except those that are mentioned under the said rule. The aforesaid provisions of the Act and the rules, as they are worded, would suggest that any article of food would be considered as 'adulterated' under the law by the mere 'presence' or 'addition' or 'use' of any colouring matter not permitted under the rules (for instance the coaltar dye detected in this case) in any form whatsoever in the said food. The admixture of the offensive dye, in order to come within Section 2(i)(j), need not be blended with the food in such an inseparable manner so as to become an integral part of the food, as suggested by the defence. Therefore, the finding of the Court below that a mere mixture of the said coal tar dye would not render the Arhar Dal adulterated, to come strictly within the scope of the definition in Section 2(1) of the Act is clearly wrong and untenable. 9. Mr. Ray, the learned Counsel for the Respondent, next drew my attention to the order-sheet of the case to show that cognizance of the offence u/s 16(1)(a) of the Act was taken on 20-5-1965 on the prosecution report submitted earlier, and on the complainants petition to withdraw the prosecution report to be filed again after obtaining specific sanction from the Notified Area. Council, the said case was "stopped" on 29-1-1965 u/s 249, Code of Criminal Procedure, as mentioned in the order of the Court of the said date. Again on a fresh prosecution report which was filed with the sanction of the Council, the Court on 7-1-1960 summoned the accused and his trial proceeded thereon. Mr. Ray attacked the trial of the accused on this fresh prosecution report on two grounds. He at first contended in this respect that the effect of the order passed by the Court below on 29-11-1965 was an acquittal of the accused who, again on the same allegations, could not have been tried for the second time. This contention of Mr. Ray was not raised before the Magistrate, and is fallacious for reasons stated below. He at first contended in this respect that the effect of the order passed by the Court below on 29-11-1965 was an acquittal of the accused who, again on the same allegations, could not have been tried for the second time. This contention of Mr. Ray was not raised before the Magistrate, and is fallacious for reasons stated below. Of course the Court below obviously committed a mistake by stating that, the proceedings of the case stopped u/s 249, Code of Criminal Procedure which is a provision applicable to Summons Cases instituted otherwise then upon a complaint, and not to Warrant Case instituted on complaint, as is the case before us. Moreover, an order under this section would not amount to an acquittal, as specifically provided in the Explanation to Section 403, Code of Criminal Procedure, and so further proceedings in accordance with law are not barred. Whatever that may be, as legal sanction for the prosecution of the accused on the first report submitted earlier was not obtained from the proper authority, the Court had no jurisdiction to try the case on the said report, and in the fitness of things it could only have discharged the accused in the said proceeding. So the legal effect of the order passed on 29-11-1965 being only a discharge of the accused, it would not bar a second trial of the same accused on the same facts. This view gets support from the decision in Ysofalli Mulla Noorbhoy v. The King AIR 1949 P.C. 164, wherein the Court at the first instance had gone to the extent of recording a verdict of acquittal in the absence of the required sanction. Even in that case their Lordships of the Privy Council held that: The order of acquittal in such a case would be without jurisdiction and would only operate as an order of discharge, and would not bar a second trial of the same accused on the same facts. 10. Mr. Ray's second contention, on the basis of the orders to which he drew my attention was that, the trial was vitiated as the Court proceeded without taking fresh cognizance of the offence on 17-1-1966. This point also was not raised before the Magistrate. This contention also is equally fallacious. Taking cognizance does not mean to record an order in writing expressly to that effect in the order-sheet". This point also was not raised before the Magistrate. This contention also is equally fallacious. Taking cognizance does not mean to record an order in writing expressly to that effect in the order-sheet". Taking cognizance of an offence is a judicial act. The Magistrate is said to take cognizance as soon as he as such takes legal notice, and applies his mind to the suspected commission of the offence, with a view to decide whether he should take such judicial action preliminary to inquiry as is hereinafter mentioned, viz., recording a complaint, issuing processes, or ordering a previous inquiry. The terms "taking cognizance" has been defined as a judicial action permitted by the Code taken with a view eventually to prosecution and preliminary to the commencement of the inquiry or trial". Artatran Mahasuara and Ors. v. State of Orissa 22 C.L.T. 851. The word "cognizance" is defined in Wharton's Law Lexicon as "the hearing of a thing judicially", 11. In this case the Magistrate in his order dated 17-1-1966, while considering the legality of re-filing the fresh prosecution report and before passing the order summoning the accused, stated thus: Cognizance of the offence u/s 16(1)(a) P.F.A. Act, 1954 was previously taken on the same allegation against the accused. This obviously shows that the Magistrate was certainly conscious of the provision of law regarding taking of cognizance of the offence. From the order of the date it is also quite apparent that the Magistrate took legal, notice of the offence, and on applying his mind to the same decided to proceed judicially by issuing process against the accused, which in effect legally amounted to his taking cognizance of the matter. Moreover, non-recording of an order specifically to that effect amounted at best., if at an, to a procedural irregularity, and no failure of justice resulted thereby or could have been occasioned, specially in view of the fact that this objection had not been raised at the trial, and as such it would he legitimate to presume that the accused apprehended no prejudice- Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, . 12. The only other contention raised by Mr. The State of Maharashtra and Another, . 12. The only other contention raised by Mr. Ray was that this case was one u/s 17 of the Act and as such it was the duty of the prosecution to prove that the accused was in charge of and was responsible to the company for the conduct of the business of the company. This contention again is without any force, as the prosecution was directly against the accused by name, and the allegation against him was that he stored for sale for human consumption 25 bags of the Arhar Dal from which p.w. 3 purchased the sample, which on analytical test was found to be adulterated. The accused in his statement u/s 342, Code of Criminal Procedure admitted that the shop in question was his grocery shop in which he was a partner and was present in the said shop as such; and that p.w. 3 took the sample to his knowledge; and that the same Arhar Dal was being sold just in the manner it was imported from the consignors. That being so, it is directly a case under Sections 7(1) and 16(1)(a) of the Act and not u/s 17 of the Act. This point thus fails. 13. Thus the order of acquittal being based upon incorrect appreciation of the law; and none of the contentions raised by the learned Counsel for the accused-Respondent being tenable; and on the discussions made above the facts constituting an offence u/s 16(1)(a) read with Section 7(1) of the Act having been made out against the accused, the impugned judgment of acquittal deserves to be set aside. The accused therefore is liable to be convicted u/s 16(1)(a) of the Act. 14. In the result, therefore, I allow the appeal, the order of acquittal passed by the Court below is set aside, and the accused is convicted u/s 16(1)(a) of the Prevention of - AI Food Adulteration Act. As is rightly submitted by the counsel of both the sides, the sentence to be passed in this case would be u/s 16 as it stood before the amendment, and accordingly I sentence the accused to pay a fine of Rs. 1,000/- only and in default to undergo R.I. for four months. Final Result : Allowed