JUDGMENT - B.M. SAPRE, J.:---This is an appeal against an order passed by the Presidency Magistrate, 28th Court, Esplanade, Bombay, convicting appellant No. 1 (Original accused No. 1) under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as ``the Act, and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for further period of three months. Appellant No. 2 (Original accused No. 2), which is a partnership firm of which accused No. 1 is a partner, has been similarly convicted with the aid of section 17 of the Act and sentenced to pay a fine of Rs. 500/-. 2. Accused No. 1, who is a partner of accused No. 2 firm, deals in food articles at the premises of the firm. On November 24, 1972, Food Inspector Kubde (P.W. 1) together with Joshi (P.W. 2) visited the shop of accused No. 1. After disclosing his identity, he purchased 450 gms. of chilly powder from the shop. This was divided into three equal parts, one of which was sent to the Public Analyst for analysis. After receiving the report of the Public Analyst that the sample of the chilly powder in question was adulterated, the accused were prosecuted. 3. The principal submission made by Mr. Ganatra on behalf of the appellants is that there was violation of the mandatory provision of Rule 22 of the Prevention of Food Adulteration Rules, hereinafter referred to as "the Rules", and, therefore, the report of the Public Analyst could not be made the basis of the conviction of the accused. Rule 22 refers to the quantity of sample to be sent to the Public Analyst. The relevant items for our purpose are Item No. 17, which deals with spices, and Item No. 23 (as it stood prior to the amendment made in the Items in 1974, that is, on the date of the alleged offence), which is a residuary item and will be attracted only if particular article of food does not fall under the remaining specific items. In the case of an article of food falling under Item No. 17, the approximate quantity to be supplied to the Public Analyst is 150 gms. In the case of an article of food falling under Item No. 17, the approximate quantity to be supplied to the Public Analyst is 150 gms. If the article of food can be brought only under the residuary Item No. 23, the approximate quantity to be supplied to the Public Analyst is 200 gms. It is not disputed before me that if the chilly powder, which is the article of food is our case, does not fall under Item No. 17, it can only fall under the residuary Item No. 23, that is, Foods (not specified). Admittedly the quantity sent to the Public Analyst in this case for analysis was 150 gms. The Supreme Court has laid down in (Rajaldas C. Pamnani v. State of Maharashtra)1, A.I.R. 1975 S.C. 189 that the non-compliance with the quantity to be supplied causes not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in the quantity for analysis is not permitted by the statute. The requirements of Rule 22 are, therefore, mandatory. I have held in (Criminal Appeal No. 311 of 1974 (By State) with Criminal Appeal No. 392 of 1974)2, decided on November 12/13, 1975, agreeing with the view of my brother Naik in (Criminal Revision Application No. 49 of 1975 decided on August, 13, 1975)3, that though Rule 22 uses the word "approximate", a difference of 50 gms. or so cannot be called "approximate" and such a difference would amount to the provisions of Rule 22 being not complied with. 4. It is, therefore, clear that if the article in question, namely chilly powder, does not fall under Item No. 17, spices in Rule 22, the charge against the accused must fail. The question, whether chilly powder would fall under it Item No. 17 spices, directly arose for consideration before my brother Padhye in (Criminal Appeals Nos. 1032 of 1973 and 1033 of 1973)4, decided on March 17/20, 1975), and he held that chilly powder cannot fall under Item No. 17 spices in Rule 22. A similar question also directly arise before my brother Apte in (Criminal Revision Application No. 223 of 1975)5, decided on October 13, 1975 and he too held that chilly powder cannot fall under Item No. 17 spices. Mr. A similar question also directly arise before my brother Apte in (Criminal Revision Application No. 223 of 1975)5, decided on October 13, 1975 and he too held that chilly powder cannot fall under Item No. 17 spices. Mr. Deshmukh the learned Public Prosecutor for the State, has challenged the correctness of the view in the above cases and has tried to pursuade me to hold that chilly powder would be spice within the meaning of that term in Item No. 17 of Rule 22. His principal submission is as follows :--- 5. Item No. 17 spices in Rule 22 was there since the inception of the Rules in 1955. Under Rule 5 of the Rules, standards of quality of the various articles of food have been prescribed as mentioned in Appendix B to the Rules and they are as defined in that Appendix. Clause A.05 in that Appendix mentioned spices before the amendment effected on 8th July, 1968. After the above amendment, Clause A.05 mentioned "spices and condiments". When Clause A.05 mentioned spices only it was stated that the standard specified for the various spices given in the clause shall apply to spices in whatever from whether whole or partly ground or in powder from. Clause A.05.10 before the amendment mentioned "Chillies". In view of that was stated in Clause A.05, namely, spices in whatever from whether whole or partly ground or in powder from, chilly powder was included in Clause A.05.10 (chillies) and, therefore, "chilly powder" was a kind of "spice". At that time also, Item No. 17 in Rule 22 was spices. That means that chillies in the form of powder, that is, chilly powder was a spice, which could fall under Item No. 17. After the amendment in the year 1968, Clause A.05 was split into two parts spices and condiments. There was no corresponding amendment in Rule 22. It, therefore, what was originally understood by spices in Clause A.05 was meant to all under item No. 17 of Rule 22 that could not be taken out of Item No. 17 after Clause A.05 was divided into two parts, namely spices and condiments. Chilly powder will, therefore, still continue to fall under Item No. 17 spices. 6. It, therefore, what was originally understood by spices in Clause A.05 was meant to all under item No. 17 of Rule 22 that could not be taken out of Item No. 17 after Clause A.05 was divided into two parts, namely spices and condiments. Chilly powder will, therefore, still continue to fall under Item No. 17 spices. 6. In the first place, the purpose of the classification of articles in Appendix B in pursuance of Rule 5 appears to be quite different from the purpose for which articles of food have been classified in Rule 22. There is, therefore, no reason to hold that what was included in the word "spices" in Clause A.05 before the amendment should be the basis also in deciding that will fall as spices under Item No. 17 in Rule 22. Secondly, even though before the amendment, Clause A.05 was as worded that spices would include spices and condiments both, yet an amendment was carried out in that Clause to separate condiments from spices. After the amendment it could not be argued that the meaning which could be given to spices, before the amendment, in Clause A.05 should be continued to be given to that term even after the amendment was effected. Originally, under the clause, the term spices included spices proper and condiments. If condiments were taken out of spices which is clear from the fact that condiments were separately mentioned in Clause A.05 after the amendment it could not be urged that spices still included condiments as they originally did. If it was still intended that spices in Item No. 17 of Rule 28 should include condiments and not only spices proper, a corresponding amendment in item No. 17 ought to have also been made. It seems that for some reason may be through oversight such an amendment was not made. But, the result of such an amendment not having been made can only be that the expression spices in Item No. 17 refers to spices proper and not to condiments. 7. Mr. Deshmukh next referred me to the judgment of my brother Apte in (Criminal Revision Application No. 673 of 1974)6, decided on March 18/19, 1975. The article there was black pepper. Mr. 7. Mr. Deshmukh next referred me to the judgment of my brother Apte in (Criminal Revision Application No. 673 of 1974)6, decided on March 18/19, 1975. The article there was black pepper. Mr. Deshmukh has relied upon paragraph 22 of that judgment where the learned Judge has held that black pepper would fall under Item No. 17 spices in Rule 22, because it is a variety of spices and condiments. It appears that the learned Judge found that black pepper was both a variety of spices proper and a condiment and it was because of the former qualification that it fell down item No. 17 spices. It does not seem from that judgment that if the learned Judge were to hold that black pepper was only a condiment and not also a spice, he would have still held that article would fall under Item No. 17 spices. 8. Mr. Deshmukh next referred to certain portions from the judgment of Apte, J. in Criminal Revision Application No. 223 of 1975, reference to which has already been made. In that case, Apte, J. has observed that in the ordinary parlance, by spices what is meant is mixture of several items such as cloves, jire, chilly powder and other articles which go to make masale and, therefore, simple chilly powder without anything more cannot be regarded as spices. Mr. Deshmukh has referred to some items which are given as sub-clauses to Clause A.05 of Appendix B to show that there are several single items of articles which are known in themselves to be spices and, therefore, the learned Judge was not correct in stating that what it meant by spices is a mixture of several items. 9. Even assuming for the sake of argument that what Mr. Deshmukh states is correct, Apte, J. has not based his conclusion that chilly powder is not spices falling under Item No. 17 of Rule 22 only on the above reasoning. He has further held that chilly powder would rather be a condiment and therefore, not a spice. *At page 667 of chopras indigenous Drugs of India, second Edition (1958), it has been mentioned that chillies are used as condiment. He has further held that chilly powder would rather be a condiment and therefore, not a spice. *At page 667 of chopras indigenous Drugs of India, second Edition (1958), it has been mentioned that chillies are used as condiment. In § Websters Third New International Dictionary the definition of condiment is : "(a) an appetizing and usually pungent substance of natural origin (as pepper, vinegar, or mustard); (b) any of various complex compositions having similar qualities (as curry or chilly powder, pickles, or catsup)". "Chilly powder" has thus been expressly included in the definition of condiment. With respect, I agree with Apte, J. that chilly powder is a condiment. As such, it could not fall under Item No. 17 of Rule 22. As already stated, Mr. Deshmukh has himself contended that prior to the amendment of Clause A.05 in Appendix B spices included both the whole chillies and the chilly powder. After the amendment of the Clause, what originally fell under the term spice could not still fall under that term because condiments which were originally included in spices were taken out of that expression and were mentioned separately. If we were to accept the reasoning of Mr. Deshmukh, namely, that what was included in spices in Item No. 17 before the amendment of Clause A.05 in Appendix B continued to be so included even after the amendment, then we will have also to hold on the same reasoning that what was included in the expression spices in Clause A.05 before the amendment continued to be so included in that expression even after the amendment, which construction it is not possible to hold as reasonable and natural. 10. Accepting the view expressed in the two cases of chilly powder decided respectively by Padhye, J. and Apte, J., I hold that the article, namely chilly powder cannot fall under Item No. 17 of Rule 22. The charge must consequently fail. 11. In the result, the appeal is allowed, the order of conviction and sentence passed against both the accused is set aside and they are acquitted. The fine if paid, shall be refunded to them. The bail bond of accused No. 1 is cancelled. -----