JUDGMENT - PADHAYE, J.:---These two appeals by the same accused arise out of two separate cases against him for offences under the Prevention of Food Adulteration Act, 1954. In one case the adulterated article is haldi and in the other it is chilly powder. 2. Section 2 of the said Act defines "adulterated" as : "An article of food shall be deemed to be "Adulterated" amongst other things if any colouring matter other than that prescribed in respect of and in amounts not within the prescribed limits of variability is present in the article". The accused runs a hotel and prepares for sale articles of food. The Food Inspector went to the hotel of the appellant and after disclosing his identity to the appellant demanded from him 450 grams each of the two commodities. Though the appellant was not a dealer in these two commodities he sold them to the Food Inspector on demand being made to him on payment of price thereof. The quantities purchased were divided into three equal parts and they were separately labelled and sealed. A sample of each of the two commodities was sent to the Public Analyst who found that in each of the two articles prohibited colour was mixed, which would bring the case within the provisions of section (2)(i)(j) of the Act. 3. The defence of the accused was that he was not a dealer in these goods but was running only the hotel and for the purposes of preparing articles of food which he was selling in his hotel he had bought them from the wholesaler, viz., the Liberty Stores, and that he had not mixed any colour in these commodities. 4. The learned Magistrate found the accused guilty on the basis of the report of the Public Analyst and convicted and sentenced him in both the cases. The appellant has filed these two appeals against his conviction and sentence. 5. The contention that the accused was not a dealer in these articles, and therefore, this was not a sale within the meaning of the Prevention of Food Adulteration Act has no force in view of the decision of the Supreme Court in the case of :(The Food Inspector, Calicut Corporation v. Cherukattil Gopalan and another)1. For a conviction under the Act proof of dealership is not necessary. For a conviction under the Act proof of dealership is not necessary. It has been held that when there is a sale to the inspector under the Act, of an article of food, which is found to be adulterated, accused would be guilty of the offence punishable under section 16 (1) (i) read with section 7 of the Act. and it is not necessary to establish further that the person is a dealer in the article as such. 6. He further urged that the accused himself had purchased these articles from the Liberty Stores and they were with him in the same condition in which they were purchased by him from that Stores, and, therefore, he could not be held guilty. For this purpose the accused produced a bill from the Liberty Stores dated 25-1-1971, which shows, that, among other articles, he had purchased 4 kilograms of turmeric powder and 4 kilograms of Chilly powder on that day. This bill was only produced in this Court, but it was not produced earlier when the samples were taken. As per the Food Inspector the aforesaid bill has also not been proved by examining the person who issued the said bill. No person from the Liberty Stores has also been examined to say that the Turmeric powder and Chilly powder, found with the accused were sold to him by the Liberty Stores in the same condition in which they were found on the date the samples were taken. In the absence of any such evidence it cannot be said that the aforesaid articles were purchased in the same condition by the accused from the wholesaler. 7. In view of these findings, there is no doubt that the accused is guilty of the offence under section 7 read with section 16 of the Prevention of Food Adulteration Act. Section 16 provides for the punishment and so far as the offence under section 16(1)(a)(i) is concerned, the minimum sentence provided is six months and the maximum that is provided is 6 years, with a fine which shall not be less than one thousand rupees. The proviso does not apply to the present case and there is no scope for reduction of sentence once the offence is held proved. 8. The proviso does not apply to the present case and there is no scope for reduction of sentence once the offence is held proved. 8. It was then urged that the provisions of Probation of Offenders Act could be resorted to as it is a hard case for the appellant as he was not storing these articles for sale, but only storing them for the purposes of using them in his restaurant and that he himself was purchasing the articles from third persons. No doubt, the Probation of Offenders Act applies even to Food Adulteration Act, but the Supreme Court has consistently refused to apply the provisions of the Probation of offenders Act to the offences under the Food Adulteration Act as these offences are highly anti-social and affected the health of the members of Public. It has also been further laid down that some leniency may be shown to offenders who are below 21 years of age, but in case of offenders who are above 21 year of age, the provisions of the Probation of Offenders Act should not be resorted to. In view of this, I do not think that I would be justified in applying the provisions of Probation of Offenders Act to this case. 9. Accordingly, both these appeals must fail and are dismissed. 10. It may be that what the appellant contends in these two appeals may or may not be true. It may be that the colouring might have been done by the dealer from whom he purchased the articles, or the colouring might have done by the accused himself for making his articles more attractive by use of the lesser quantities of the articles. However, this is not a matter with which I may concern myself in view of the state of evidence on the record. The accused, if he is so advised, may take recourse to other avenues which may be open to him for this purpose. 11. The appeal is dismissed. The accused to surrender to his bail within a fortnight. 12. The judgment in these two appeals was dictated in open Court on 17-3-1975. On the 18th March, 1975, Mr. The accused, if he is so advised, may take recourse to other avenues which may be open to him for this purpose. 11. The appeal is dismissed. The accused to surrender to his bail within a fortnight. 12. The judgment in these two appeals was dictated in open Court on 17-3-1975. On the 18th March, 1975, Mr. Chitnis, the learned Counsel for the appellant in the two appeals, mentioned to me saying that certain matters which have an important bearing on these appeals were not brought to the notice of the Court at the time of the arguments and these matters should be considered as going to the very root of the case. Mr. Chitnis further brought to my notice that the judgment in these cases was not entered in the records so far and the writs have not been issued. He, therefore, contended that the appeals could be reopened and suitable order could be passed after hearing on the points which he seeks to urge. 13. I got the matter verified on the I8th itself and I was informed that the judgment has not been entered in the records and the writs have not been issued in these two appeals. No doubt the judgments were dictated in open Court, but, since, the writs have not been issued the appeals could be considered further. Notice was given to the Public Prosecutor and he was also present on the 19th. Both of them were heard partly and the learned Public Prosecutor was directed to produce acknowledgements, if any, of having sent the samples and the specimen impression of the seal. The two appeals have been put up for hearing today and the Counsel for the appellant as well as the Public Prosecutor have been heard. 14. A similar situation had arisen in (The State of Bombay v. Geoffrey Manners Co.)2 in which it was held that when an oral judgment is delivered by the High Court in its criminal appellant jurisdiction, the order made receives its finality when it is recorded and a writ in terms of the order is issued under the seal of the Court and it cannot thereafter be altered or reviewed. But a judgment or order delivered in open Court can be altered before it is recorded and before a writ under the seal of the Court is issued. But a judgment or order delivered in open Court can be altered before it is recorded and before a writ under the seal of the Court is issued. Since the judgment has not been recorded and the writ has not been issued, there is no question of reviewing the said judgment, but as laid down by this decision it could be altered if there are sufficient grounds for its alteration and it is necessary to do so in the interest of justice. This decision was followed later by this Court in (A.H. Satranjiwala v. The State of Maharashtra)3 ,74 Bom.L.R. 742. It has been observed at page 752 : "As held by the Division Bench of this Court in State of Bombay v. Geoffrey Manners, the stage when the judgment in a criminal appeal or revision becomes final is when it is entered on record and a writ in terms of the order is issued pursuant thereto." It will appear from these decisions that in a case like this where the judgment is not entered on record and the writ is not issued, it is permissible to alter the decision if justice so requires. 15. The learned Counsel for the appellant contends that two vital questions arising in the case were not brought to the notice of the Court and if those questions are dealt with, then the appellant can be given the benefit of being acquitted in this case. These questions according to the learned Counsel are essential to be established in cases like these and that the omission to establish these points must necessarily result in the prosecution failing. Since these are the necessary requirements of successful prosecution and unless these preliminary facts are established, the prosecution cannot succeed. These points are :--- (1) The sample of minimum quantities of articles of food are required to be taken and sent to the Public Analyst for his examination. If there is a contravention of these requirements, then prosecution must necessarily fail. (2) There must be a proper compliance of Rules 17 and 18 of the Rules framed under the Prevention of Food Adulteration Act, and if there is any contravention of those rules, then also the prosecution must fail. If there is a contravention of these requirements, then prosecution must necessarily fail. (2) There must be a proper compliance of Rules 17 and 18 of the Rules framed under the Prevention of Food Adulteration Act, and if there is any contravention of those rules, then also the prosecution must fail. The above points, it appears, escaped attention of all concerned including myself and if these matters had been noticed when the judgment was delivered, perhaps the result would have been different. It is, therefore, necessary to consider these points to find out if there is any substance as contended on behalf of the appellant. 16. Rule 17 of the rules requires that the container of sample for analysis shall be sent to the public analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the public analyst. Rule 18 further requires that besides the sample to be sent as per rule 17, a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him. These two things are required to be done. Under Rule 17, the container of sample and a memorandum in Form VII together enclosed in an outer cover addressed to the Public Analyst has to be sent. Then a copy of the memorandum and specimen impression of the seal by which the sample has been sealed had to be put in another separate packet and that packet has to be sent to the public analyst. These two articles as per Rule 17 are to be sent in one packet and two articles as per Rule 18 are to be sent in another packet. If these formalities are not complied with, then there would be infraction of the said rules which rules are held to be mandatory. The rules have been intentionally framed in that way so as to ensure that the analysis is done of the proper articles which are properly sealed and there is no opportunity for tampering with the sample. If these formalities are not complied with, then there would be infraction of the said rules which rules are held to be mandatory. The rules have been intentionally framed in that way so as to ensure that the analysis is done of the proper articles which are properly sealed and there is no opportunity for tampering with the sample. Now, in the present case we find a memorandum in Form VII addressed to the public analyst which says that the sample which is described therein is sent therewith for analysis under Clause (b) of sub-section (i) of section 10 or under Clause (c)(ii) of sub-section (1) of section 11 of the Prevention of Food Adulteration Act 1954. It then gives the identification mark of the sample, name of the vendor, the date and place of its collection, and the nature of article submitted for analysis. In the second and last paragraph of this memorandum, it is stated that a copy of this memorandum and specimen impression of the seal used to seal the packet of sample is being sent separately by hand. There is nothing to show that a second packet containing a copy of the memorandum and the specimen impression of the seal was sent to the public analyst. In the original record also there is no evidence to be found that a packet containing these two documents were sent to the public analyst. Time was granted yesterday to the learned Public Prosecutor to find out if there are any acknowledgments to show that the packet containing a copy of the memorandum and the specimen impression of the seal was sent to the Public analyst. He has reported that he has not been able to find out any such acknowledgment. It would, therefore, be difficult to hold in the absence of any evidence that such a separate packet containing a copy of the memorandum and the specimen impression of the seal was sent to the Public analyst, and in any case, no such proof is forthcoming. Reference was made to the evidence of Ramdas Shanker Kurlekar (P.W. 1), Food and Drugs Inspector, who had taken the sample to be sent to the public analyst. He states that one sample was sent to the public analyst with some specimen impression of seal in Form No. VII and he brought the report of the Public analyst. Reference was made to the evidence of Ramdas Shanker Kurlekar (P.W. 1), Food and Drugs Inspector, who had taken the sample to be sent to the public analyst. He states that one sample was sent to the public analyst with some specimen impression of seal in Form No. VII and he brought the report of the Public analyst. These statements do not fulfill the requirements of Rules 17 and 18. From this statement it cannot be gathered that a sample with the memorandum was sent in one packet to the public analyst and the copy of the memo along with the specimen impression of the seal was sent separately in another packet. At the most, statement would convey that a sample and the specimen impression of the seal were sent in one packet only. This is contrary to the Rules 17 and 18 of the Rules. There is no other evidence to show that they were separately sent. If that is the position, then there being a breach of the mandatory provision of the rules, the prosecution cannot succeed and on that ground alone the accused would be entitled to be acquitted. Such a view has been taken by my brother Vimadalal in Criminal Appeal No.1212 of 1973 decided on 11th February, 1975. A similar view has also been taken by Mr. Justice Gandhi in Criminal Revision Application No. 1184 of 1973 decided on 15th April, 1974. In view of these decisions, it has to be said that the prosecution has failed to bring home the guilt to the accused. 17. There is yet another point which was put forward for consideration. It was contended that under Rule 22 quantities of samples of different kinds of food, which are required to be sent to the public analyst, are prescribed. 23 articles of food are mentioned in the said rule and then there is a general item regarding the kind of foods which have not been specified earlier in that rule. The turmeric powder or chilly powder, which are the subject matter of these prosecutions, can, if at all, fall under the head "Spices" given in item No. 17. If, however, they do not fall under the head "Spices" then in that case, the only item which would be applicable would be item No. 23, viz, foods (not specified). The turmeric powder or chilly powder, which are the subject matter of these prosecutions, can, if at all, fall under the head "Spices" given in item No. 17. If, however, they do not fall under the head "Spices" then in that case, the only item which would be applicable would be item No. 23, viz, foods (not specified). If they fall under this category, then the quantity that is to be supplied to the public analyst would be 200 grams. If, however, they are covered by the term "Spices", then the quantity to be supplied would be 150 grams, in which case the rule could be said to have been complied with. 18. The question, therefore, is whether turmeric powder or chilly powder can be said to fall within the term "spices". "Spices" has not been defined either in the Act or in the Rules. "Food" has been defined in section 2(v) of the Act which 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 flavouring matter or condiments. The turmeric powder and chilly powder can very well fall under Clause (a) of section 2(v) as these substances ordinarily enter into, or are used in the composition or preparation of human food. The two commodities, therefore, would fall under the definition of "Food". However, it will be found that the flavouring matter of condiments are put in a different category even though they are used in the preparation of human food. They are treated differently than other articles which enter into the human food. The substances mentioned in clause (b) need not ordinarily enter into or used in the composition or preparation of human food. They are not essentials but they are used only for giving additional flavour to the food and that is why they are dealt with separately. "Spices" have been defined in the Webs.ers Third New International Dictionary as meaning any of various aromatic vegetable products (as pepper, cinnamon, nutmeg, mace all spice, ginger, cloves) used is crockery to season food and to flavour foods. The concise Oxford Dictionary also gives the meaning as aromatic or pungent vegetable substance used to flavour food, e.g., cloves, pepper, mace. "Spices" have been defined in the Webs.ers Third New International Dictionary as meaning any of various aromatic vegetable products (as pepper, cinnamon, nutmeg, mace all spice, ginger, cloves) used is crockery to season food and to flavour foods. The concise Oxford Dictionary also gives the meaning as aromatic or pungent vegetable substance used to flavour food, e.g., cloves, pepper, mace. It would, thus, appear that turmeric and chilly powder are substances which are different from spices. Spice is not a substitute for turmeric powder or chilly powder, but is an additional substance which has to be added to food in its preparation for giving it a special flavour or taste. In this sense, turmeric or chilly powder would not be covered in the term "Spices". If, therefore, the turmeric and the chilly powder do not fall under item "Spices" then they must fall under the last item, viz, "Food (Not specified)". In that case, approximate quantity to be supplied to the public analyst must be 200 grams for which the purchase must be of more than 600 grams of the article, because the article purchased has to be divided into three samples under the law. In the instant cases, the samples that were sent to the public analyst were of 150 grams each, because 450 grams each of these substances was purchased from the accused. This is below the prescribed quantity as per Rule 22. That again is a contravention of the mandatory provision of the rule and if that is so, then the prosecution must fail. It has been held by the Supreme Court in (Rajaldas. G. Pamnani v State of Maharashtra)4 that the non-compliance with the quantity to be supplied caused not only infraction of the provision but also injustice. It is further observed that the quantities mentioned are required for correct analysis and shortage in quantity for analysis is not permitted by the Statute. Taking this view, the Supreme Court set aside the acquittal of the accused in that case. Following this decision it must be held that the conviction of the accused in the two cases would also be illegal. 19. In the view which I have taken, it must, therefore, be held that the conviction of the appellant in the two cases is illegal and is required to be set aside. Following this decision it must be held that the conviction of the accused in the two cases would also be illegal. 19. In the view which I have taken, it must, therefore, be held that the conviction of the appellant in the two cases is illegal and is required to be set aside. Accordingly the convictions of the appellants in the two appeals are set aside, so also the sentences. The appeals are allowed. Bail-bond of the appellants shall stand cancelled. ------