JUDGMENT - R.K. JOSHI, J.:---This is an appeal by the State against an order of acquittal recorded by the learned Sessions Judge, Ahmednagar, reversing the order of conviction and sentence passed on the respondent by the learned Judicial Magistrate, First Class, Court No. 2, Ahmednagar, who convicted the Respondent under section 2(i)(k) read with section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and rules framed thereunder. The Respondent was awarded R.I. for six months and a fine of Rs. 10,000/-, the default sentence being S.I. for six months. 2. The prosecution case was that on 21st May, 1973 at about 4.30 P.M. Food Inspector Mr. Rashinkar visited the Sodawater Factory owned by the accused at Chowpati Karanja, Ahmednagar, and obtained nine bottles of orange (aerated water) by observing some of the prescribed formalities, and on giving a notice to the Respondent that he was purchasing the stuff for being sent to the Public Analyst for analysis. A panchnama was drawn under which the bottles were supposed to be sealed and three out of the nine bottles were sent to the Public Analyst on 22nd May, 1973, i.e. on the next day of the attachment. The contents were analysed on 20th July, 1973 and the Public Analyst opined that they were heavily contaminated by bacterin and were unfit for human consumption. 3. The defence was of a total denial accompanied by a submission that the Respondent had filtered the water carefully and he had manufactured the contents by hand working machine. He attempted to lay some blame on the shoulders of the Food Inspector in not following the prescribed procedure for collecting the samples properly and sealing and dispatching them. It was further submitted that lapse of time of nearly two months may be the primary reason for the development of bacteria. 4. For the prosecution the food Inspector who stepped into the box, spoke in terms of the prosecution case. He, however, gave some damaging admissions which were to the effect that he had not taken samples in different bottles, nor had he corked them properly. His admissions further indicated that a possibility of the air bubbles entering into the bottles from the cavity between the tin crocks and the bottles could not be ruled out. He also did not make inquiry about the filter process. His admissions further indicated that a possibility of the air bubbles entering into the bottles from the cavity between the tin crocks and the bottles could not be ruled out. He also did not make inquiry about the filter process. Although there was a cement reservoir in the Factory of the accused, he did not take any sample of the water therefrom. Another statement made was to the effect that in 1972-73, the date approximate to the date of raid, there was drought and scarcity of water in Ahmednagar. He turned down the suggestion of the water being supplied from Pimpalgaon water tank and there being public agitation. He was good enough to admit that he did not put any preservatives and that the minimum quantity required to be dispatched was 600 m.l. Even then he did not measure the contents to verify the correctness of this volume. The evidence of the panch lands assurance to some of these points, but I do not think it necessary to dilate upon it. 5. The learned Sessions Judge took the view that the preservatives required to be added under Rule 55 are a must on the part of the manufacturer and in the instant case the accused had not added any preservatives. His next approach was that the time lapse, coupled with the loose sealing was sufficient for development of bacteria as nature may be acting adversely to the accused. According to him it was the duty of the Food Inspector to add preservatives and take other precautions. 6. Mr. Solkar for the State took me through the relevant provisions of the Act and Rules and submitted that the addition of preservatives by the Food Inspector are not compulsory. Rule 19 gives him a latitude and it is an enabling rule. However, according to Mr. Solkar, Rule 55 does not come into play so far as the Food Inspector is concerned and those rules which prescribe the addition of preservatives, cast a duty upon the manufacturers. To put it most modestly, submitted Mr. Solkar further that Part X dealing with preservatives, which specifies the nature and quantity of preservatives to be added and the upper limits thereof, and the further rules which penalise the violation thereof, indicate that at least impliedly they cast a duty on the manufacturer and in no event on the Food Inspector. 7. Mr. Solkar further that Part X dealing with preservatives, which specifies the nature and quantity of preservatives to be added and the upper limits thereof, and the further rules which penalise the violation thereof, indicate that at least impliedly they cast a duty on the manufacturer and in no event on the Food Inspector. 7. Mr. Agarwal, appearing for the accused, questioned the correctness of the approach of Mr. Solkar and tried to convince me that neither under the Act nor under the rules a duty is cast even on the manufacturers to add preservatives. If they do not add any, and if they run any risk of getting the stuff spoiled, they do so at their own risk. Rule 55 is not attracted for what is penalised is that if any manufacturer violates that rule, he commits a breach thereof and is exposed to penalty. But that does not mean that the statute cast a duty upon him. Even otherwise according to Mr. Agarwal, there is a clear breach of Rules 14,15 and 18 and the acquittal could be sustained. 8. Without dilating upon the debatable point as to whether a duty is cast upon the manufacturer to add preservatives or not, the acquittal will have to be sustained, because this is a clear case in which some of the mandatory rules have not been complied with. Rule 14 deals with the manner of sending samples for analysis. They are required to be taken in clean dry bottles which are to be closed sufficiently tight to prevent leakage, evaporation, or entrance of moisture. The next rule casts a duty upon the Inspector to label the bottles property, and Rule 16 speaks of the manner of packing and sealing the samples. The stopper has to be securely fastened so as to prevent leakage of the contents in transit and also to prevent the entrance of moisture. Rule 18 speaks of a copy of memorandum and specimen impression of the seal to be sent to the Public Analyst separately by registered post. Then comes Rule 19 which is somewhat important. Although enabling, it speaks of a duty cast upon the Inspector to add preservatives, as may be prescribed from time to time, to the sample for the purpose of maintaining it in a condition suitable for analysis. Then comes Rule 19 which is somewhat important. Although enabling, it speaks of a duty cast upon the Inspector to add preservatives, as may be prescribed from time to time, to the sample for the purpose of maintaining it in a condition suitable for analysis. Rule 22 is equally important and non-compliance of it is held by the Supreme Court to be infraction of law. It lays down the quantity of sample of food to be sent to the Public Analyst. Entry No. 37, which is somewhat omnibus covers all the categories of food not categorised in the first 36 entries and it says that the approximate quantity to be supplied should be 200 mls. and in this particular case it should be 600 mls. May it be noted in this context that the Food Inspector has not measured the contents of the sample taken and has given his estimate approximately, probably by looking at the size of the bottle; but it is common knowledge that the sizes vary. 9. The procedure adopted by the Food Inspector in this case suffers from numerous infirmities. In the first instance he has not taken the contents of orange in clean dry bottles as required by Rule 14, nor is there any evidence to indicate affirmatively that entrance of moisture was prevented. It is not unlikely that due to lapse of two months in between the date of attachment and the examination by the Analyst, bacteria may develop, nature working adversely to the accused. Although emphasis was laid on Rule 18 and my attention was drawn to the reported rulling in (Baliram Feru Paul v. The State)1, 77 Bom.L.R. 350 which lays down that these rules are mandatory and if there is a lapse, the accused would be entitled to an acquittal, I am not much inclined to accept this contention in the instant case. So far as the addition of preservatives is concerned, true it is that Rule 19 gives an option to the Food Inspector; but the facts in this case are somewhat peculiar and to be on safer side it would have been better if the Food Inspector had taken this precaution. The last contention raised by Mr. So far as the addition of preservatives is concerned, true it is that Rule 19 gives an option to the Food Inspector; but the facts in this case are somewhat peculiar and to be on safer side it would have been better if the Food Inspector had taken this precaution. The last contention raised by Mr. Agarwal that the quantity taken was not sufficient must prevail in view of the authoritative pronouncement of the Supreme Court in the case of (Rajaldas G. Pamnani v. State of Maharashtra)2, A.I.R. 1975 S.C. 189. 10. Finally, I may mention that this is an appeal against an order of acquittal and there are no impelling reasons to interfere. Therefore, the order of acquittal will have to be confirmed. 11. In the result, the appeal fails and is dismissed. Bail bounds cancelled. -----