JUDGMENT - C.S. DHARMADHIKARI, J.:---In this case the accused stands convicted for the offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act and was sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 1,000/-, or in default of payment of fine, to suffer further rigorous imprisonment for six months. It appears from the record that the accused is the owner and proprietor of a grocery shop known as "M/s Chetan Kirana Stores" at Imambada Road, Jat Tarodi, Nagpur. On September 6, 1973, at about 4 p.m. Food Inspector Mankar along with panchas visited the shop of the accused. He purchased 450 grams of ground nut oil; then samples were drawn and sealed; and thereafter one bottle was sent to the Public Analyst for analysis. On analysing the Public Analyst found that the groundnut oil was adulterated. After obtaining the necessary sanction to prosecute the accused a complaint was filed in the Court of the Judicial Magistrate, First Class, Nagpur. During the pendency of the case the accused requested that the sample in his possession should be sent to the Central Food Laboratory, Calcutta, for analysis through the Court process. It appears from record that a report was also received from the Director, Central Food Laboratory, Calcutta, that the groundnut oil was adulterated. After appreciating all the evidence on record, the courts below came to the conclusion that the samples were duly drawn by the Food Inspector and the groundnut oil purchased by the Food Inspector from the shop of the accused was adulterated. In this view of the evidence, the accused was convicted and sentenced for the above said offence. 2. Initially the accused was sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 1,000/-. However, in the appeal the substantive jail sentence was modified and the accused was sentenced to undergo rigorous imprisonment for four months. Therefore, when the matter came up before this Court in a revision filed by the accused, a suo motu notice for enhancement of sentence was issued, which is registered as Criminal Revision Application No. 58 of 1976. As both these matters arise of the same proceeding they are being disposed of by this common judgment. 3. Therefore, when the matter came up before this Court in a revision filed by the accused, a suo motu notice for enhancement of sentence was issued, which is registered as Criminal Revision Application No. 58 of 1976. As both these matters arise of the same proceeding they are being disposed of by this common judgment. 3. Shri Manohar, the learned Counsel for the accused, contended before me that the Food Inspector has not followed the mandatory procedure prescribed by the Act and the Rules while taking the samples. According to him, the samples were not taken in bulk and, therefore, it cannot be said that the sample represented the goods purchased from the shop. He further contended that the Food Inspector has also not complied with mandatory provisions of section 10(7) of the Act as he has not called any independent witnesses when the samples were drawn. According to Shri Manohar, the other panch witness who was called by the Food Inspector was a Food Inspector himself. If this is so, he cannot be termed as "an independent witness". The second witness who was called when the samples were drawn is not examined. Thus, this is a case where there was no independent witness present when the samples were drawn. He further contended that the sample was not collected in a dry and a clean bottles, and, therefore, there was a breach of Rule 14 of the Rules. According to Shri Manohar, the sample sent by the Court under section 13(2) of the Act was also not properly sent. Section 13(2) of the Act enjoins a duty upon the Magistrate to send the sample to the Director, Central Food Laboratory, for certificate under its own seal and that too in the prescribed form. Then Rule 4 lays down the procedure for sending such a sample. Rule 4(3) in particular contemplates that a copy of the memorandum and a specimen impression of seal used to seal the container and the cover should be sent separately by the registered post to the Director. In the present case, according to Shri Manohar, the sample itself was not sent under the seal of the Court, nor Rule 4(3) of the Rules was complied with. In this view of the matter, it is contended by the learned Counsel that the conviction of the accused is wholly illegal. 4. In the present case, according to Shri Manohar, the sample itself was not sent under the seal of the Court, nor Rule 4(3) of the Rules was complied with. In this view of the matter, it is contended by the learned Counsel that the conviction of the accused is wholly illegal. 4. On the other hand, it is contended by Shri Badar, the learned Assistant Government Pleader, that Rule 4 of the Rules is merely directory and not mandatory and, therefore, non-compliance with the Rules will not vitiate the conviction unless prejudice is shown or demonstrated. 5. From the record produced before me, it is obvious that an application was filed by the accused person under section 13(2) of the Act on February 22, 1974. On the same day, the Magistrate passed an order that the sample in his (accuseds) possession should be sent to the Central Food Laboratory on his depositing an amount of Rs. 40/-. It further appears from the endorsement made on the said application that on the same day the Food Inspector had verified the sample bottle and found that the seals were in fact and there was no leakage and the bottle was in an unbroken condition. After this the said bottle was despatched with a memorandum in Form 1 of the forms. From the bare reading of the memorandum which is purported to be in Form 1, it is quite obvious that a reference made therein to the distinguishing feature on the container and the outer cover related to the seal of the Food Inspector only. Form 1, Column No. 3 which is missing in the memorandum sent by the Court reads as under: "A copy of the memorandum and the specimen impression of the seal used to seal the container and the cover are sent separately by the registered post." As already observed, this column is wholly missing in the memorandum sent under the signature of the Court. From the bare reading of this memorandum it is quite obvious that the Magistrate had not made any reference to the seal affixed by him on the sample bottle or the outer cover at all. Further it is quite clear from the record that a copy of memorandum and a specimen impression of the seal used to seal the container and the cover was not separately sent at all. Further it is quite clear from the record that a copy of memorandum and a specimen impression of the seal used to seal the container and the cover was not separately sent at all. On the contrary, it appears from the material placed on record that the sample was not sent under the seal of the Court at all. If this is so, it is obvious that the learned Magistrate has not followed the procedure prescribed by section 13(2) as well as Rule 4 of the Rules framed thereunder. Section 13(2) contemplates that the sample bottle should be sent to the Director of the Central Food Laboratory, Calcutta, under the seal of the Court. Then Rule 4(3) of the Rules lays down that a copy of the memorandum and a specimen impression of the seal used in this behalf should be sent separately by registered post to the Director. This procedure is not followed in the present case. This is a case where there is a total non-compliance with the provisions of the Act and the Rules and, therefore, the question of substantial compliance will not arise. In view of the evidence on record it is also not possible to raise a presumption under section 114 of the Evidence Act. The same stands rebutted even if it is not necessary to deal with other contentions raised on behalf of the accused nor it is necessary to decide the question as to whether the provisions of Rule 4 are mandatory or directory. It is also not necessary to refer to the decision of the Gujarat High Court in (Harchand Gajpal v. The State)1, 1976 F.A.C. 15(Guj.), on which reliance was placed by Shri Manohar. To say the least, in the present case the Magistrate had dealt with the whole matter in a very casual manner. It is also clear from the material placed on record that the sample was not sent to the Director of the Central Food Laboratory, Calcutta, under the seal of the Court or under the signature of the Magistrate. It appears that the Magistrate had abdicated his functions and had left it to the Food Inspector. When the whole thing has been dealt with in such a casual manner, in my opinion, it will not be safe to convict the accused on the basis of such a material. It appears that the Magistrate had abdicated his functions and had left it to the Food Inspector. When the whole thing has been dealt with in such a casual manner, in my opinion, it will not be safe to convict the accused on the basis of such a material. In any case, in these circumstances, the accused is entitled to a benefit of doubt. 6. In the result, therefore, the revision petition is allowed. The conviction and sentence of the accused for the aforesaid offence is set aside. His bail bond shall stand cancelled. The fine, if paid, shall be refunded to the accused. 7. In this view of the matter, the Criminal Revision Application No. 58 of 1976 for enhancement of sentence also stands dismissed. -----