ORDER :- The petitioner Prabhakar Raghunath Kamerkar was convicted by the Judicial Magistrate, First Class. Chiplun, for an offence punishable under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as 'the Act', and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000, in default, to suffer rigorous imprisonment for a further period of 1½ months. He preferred an appeal before the Sessions Judge. Ratnagiri, against his conviction and sentence, but that appeal was dismissed. The petitioner has now come to this Court in revision. 2. According to the prosecution, Food Inspector Nakhava (P.W.1) visited the grocery shop of the petitioner at Guhagar on 28th November 1972 along with panch witnesses. After disclosing his identity, Nakhava purchased 750 gms. of Tur Dal from the petitioner, who was present in the shop, telling him that he wanted to send a sample of Tur Dal for analysis. He divided the sample in three equal parts and after following the prescribed procedure, he sent one sealed sample packet with a memorandum in Form VII as prescribed by the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as 'the Rules', to the Public Anasyst for analysis and report. He also sent separately a copy of the memorandum and specimen impression of the seal used to seal the packet of the sample. In due course, the report of the Public Analyst was received that the sample contained metalline yellow which was a non-permitted coal tar dye and, therefore, the sample of Tur Dal was adulterated. 3. The main defence of the petitioner was that he had purchased the Tur Dal in question from a dealer by name Shikshet Ganshet Bhingarde of Kolhapur with a written warranty and the Tur Dal while in possession of the petitioner was properly stored and he sold it in the same state as he purchased it. Therefore, the petitioner was protected under Section 19(2) of the Act. The petitioner examined Shikshet Bhingarde (D.W.1) in defence and also produced the bill (Ex.34) dated 22nd June 1972 containing the warranty. Therefore, the petitioner was protected under Section 19(2) of the Act. The petitioner examined Shikshet Bhingarde (D.W.1) in defence and also produced the bill (Ex.34) dated 22nd June 1972 containing the warranty. Before the learned Sessions Judge, a further defence was taken by the petitioner that there was non-compliance with Rules 7, 17 and 18 of the Rules and, therefore, the conviction of the petitioner on the basis of the report of the Public Analyst could not be sustained. 4. The learned Sessions Judge rejected the defence of the petitioner under Section 19(2) of the Act. He accepted the petitioner's case that he had purchased one bag of Tur Dal from Bhingarde on 22nd June 1972 under the bill (Ex.34) and that the bill carried the necessary warranty. But the learned Sessions Judge held that the petitioner had failed to prove that Tur Dal out of which the petitioner sold 750 gms. to the Food Inspector on 28th November 1972 was the same Tur Dal which the petitioner had purchased from Bhingarde on 22nd June 1972 under Ex.34. In other words, the learned Judge held that the identity of the Tur Dal, a sample from which was taken on 28th November 1972 by the Food Inspector, was not established with the Tur Dal which the petitioner had purchased from Bhingarde on 22nd June 1972. He, therefore, held that the petitioner was not protected under Section 19(2) of the Act. In regard to the objection about non-compliance with Rules 7, 17 and 18, the learned Sessions Judge relied upon the evidence of the Food Inspector and the report of the Public Analyst (Ex.23) and held on the basis of these that there was due compliance with all the three Rules mentioned above. As there was no other ground on which the order of conviction and sentence passed by the learned trial Magistrate was challenged, the appeal was dismissed. 5. Mr. Ganatra for the petitioner has raised the following contentions before me:- (1) There was non-compliance with Rules 7, 17 and 18 of the Rules in sending the sample to the Public Analyst and, therefore, no conviction could be based on the report of the Public Analyst. (2) The petitioner is protected by Section 19(2) of the Act. (3) This is a fit case where the benefit of the Probation of Offenders Act, 1958 should be given to the petitioner. 6. (2) The petitioner is protected by Section 19(2) of the Act. (3) This is a fit case where the benefit of the Probation of Offenders Act, 1958 should be given to the petitioner. 6. Turning to the first contention of Mr. Ganatra, Rule 17 provides that the container of sample for analysis shall be sent to the Public Analyst by registered post or railway parcel, etc. in sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst. Rule 18 provides that 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, etc., Rule 7 provides that on receipt of a package containing a sample for analysis from a Food Inspector, the Public Analyst shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the conditions of the seals thereon. 7. Now, as regards compliance with Rule 17, Nakhava has stated in his evidence that he sent one sample packet to the Public Analyst under post parcel and he also sent one out of three copies of the memorandum along with the sample. This part of his evidence was not challenged in cross-examination and it has been accepted by the learned Sessions Judge. There was, therefore, clear compliance with Rule 17. 8. As regards compliance with Rule 18, the evidence of Nakhava again is that he had sent the second copy of the memorandum along with the specimen impression of the seal to the Public Analyst by registered post. This part of his evidence was challenged in cross-examination before charge, when an admission was obtained from the witness that he possessed no receipt for registration and the postal acknowledgment receipt from the Public Analyst may be in his office. The submission of Mr. Ganatra is that the prosecution had sufficient notice that this part of the evidence of Nakhava was being challenged and it was, therefore, the duty of the prosecution to produce evidence subsequently, or having sent to the Public Analyst a copy of the memorandum, and specimen impression of the seal used to seal the sample packet. That evidence could only be of the receipt of registration and the postal acknowledgment receipt received from the Public Analyst. But these documents had not been produced. That evidence could only be of the receipt of registration and the postal acknowledgment receipt received from the Public Analyst. But these documents had not been produced. The learned Sessions Judge, according to Mr. Ganatra, had omitted to consider this lacuna in the prosecution evidence. Again, he had relied upon the recital in the report (Ex.23) of the Public Analyst, where it was stated that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector, to hold that the specimen impression of the seal had been separately sent to the Public Analyst by the Food Inspector and there was thus compliance with Rule 18. Mr. Ganatra submitted that in Criminal Appeal No.311 of 1974 with Criminal Appeal No.393 of 1974, decided on 12th/13th November 1975 by me, it was held that all other recitals in the report of the Public Analyst, except those containing the result of analysis, were inadmissible in evidence without the Public Analyst going into the witness box and proving the contents of the report. In this case, the Public Analyst has not been admittedly, examined and, therefore, the learned Sessions Judge was wrong in placing reliance on the report of the Public Analyst for proof of compliance with Rule 18. 9. It is true that Nakhava has stated in his evidence that he had sent a copy of the memorandum along with specimen impression of the seal to the Public Analyst by registered post, which fact could be proved by production of the postal receipt for registration as also the postal acknowledgment of the receipt from the Public Analyst if it was also a case of the articles having been sent by registered post with acknowledgment due. But the evidence of Nakhava also is that he did not have the receipt for registration. He did not state that the acknowledgment receipt from the public Analyst was in his office and all that he stated was that it may be in the office. The very fact that it was not produced subsequently shows that it was not available just as the receipt for registration was not available. He did not state that the acknowledgment receipt from the public Analyst was in his office and all that he stated was that it may be in the office. The very fact that it was not produced subsequently shows that it was not available just as the receipt for registration was not available. It is true that the best evidence should be produced to prove a certain fact and if documentary evidence was available, it should have been produced to show that a copy of the memorandum and the specimen impression of the seal had been sent by the Food Inspector to the Public Analyst by registered post. But the evidence of Nakhava- and which does not appear to have been challenged-shows that he was not in possession of the documentary evidence. The learned Sessions Judge was, therefore, justified in accepting the oral evidence of Nakhava, that he had sent the copy of the memorandum and the specimen impression of the seal to the Public Analyst by registered post. It could not be said that the learned Sessions Judge had committed any error of law in accepting the oral evidence of Nakhava and, therefore, the finding of fact recorded by the learned Sessions Judge could not be challenged in revision. That finding is that a copy of the memorandum and specimen impression of the seal were sent by the Food Inspector to the Public Analyst by registered post. This Court sitting in revision cannot go behind that finding of fact. 10. In this view of the case, it is not necessary for me to go into the question whether the recitals in the report (Ex.23) of the Public Analyst could be relied upon for proving compliance with Rule 18. 11. As regards compliance with Rule 7, a duty is cast on the Public Analyst to compare the seals on the container and the outer cover with specimen impression of the seal received separately and to note the condition of the seals, thereon. On the principle that official acts must be presumed to have been regularly performed, the compliance with Rule 7 would be there. On the principle that official acts must be presumed to have been regularly performed, the compliance with Rule 7 would be there. The petitioner had not made known his challenge to compliance with Rule 7 by the Public Analyst by making a request at the appropriate time that the Public Analyst should be examined with a view to enable the petitioner to cross-examine him and show that Rule 7 had not been complied with. In the absence of any such challenge to the compliance with Rule 7 in the appropriate manner and at the appropriate stage, it will have to be held that there was compliance with Rule 7. 12. Mr. Ganatra also submitted that the oral evidence of Food Inspector Nakhava about compliance with Rules 17 and 18 was not put to the petitioner when he was examined under Section 342 of the Code of Criminal Procedure, 1898 and he had no chance to explain the above evidence about the compliance of the said Rules. That had caused prejudice to the petitioner in his defence and on this ground also, his conviction is bad in law. 13. Section 342 of the Code of Criminal Procedure, 1898, however, opens with the words "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him......" Questions are, therefore, to be put to an accused in regard to circumstances which appear against him in the evidence adduced by the prosecution. Questions are not required to be put to an accused in respect of all the material which the prosecution is required to bring on record. Questions are to be put only in respect of the material which is in the nature of a circumstance against the accused. The prosecution in a criminal case may be required to lead even formal evidence to complete the chain, but all that material is not required to be put to the accused. Merely because, in the absence of that formal evidence, the prosecution against the accused cannot succeed, that material does not become a circumstance appearing in the evidence against the accused. I will explain what I mean by giving just two illustrations. Under Section 20 of the Act, no prosecution for an offence under the Act can be instituted except by, or with the written consent of the Central Government or the State Government or a local authority, etc. I will explain what I mean by giving just two illustrations. Under Section 20 of the Act, no prosecution for an offence under the Act can be instituted except by, or with the written consent of the Central Government or the State Government or a local authority, etc. Therefore, for the prosecution to succeed for an offence under the Act, it is necessary for the prosecution to prove consent. The prosecution is expected to lead evidence in the case to prove this consent. But it cannot be suggested that this evidence is also to be put to the accused when he is examined under Section 342 of the Code of Criminal Procedure, 1898. In a way, this is a piece of evidence which is necessary to be led for the prosecution to succeed and in remote way it could, therefore, be argued that it is a circumstance appearing in the evidence against the accused. But that is not the meaning to be given to the words 'circumstances appearing in the evidence against him' used in Section 342. 14. Take then the case where an accused is being prosecuted for murder. The prosecution is required to prove that the deceased met with a homicidal death. For that purpose, it relies upon the postmortem examination of the dead body. In order to prove that the report of the post-mortem is of the person whose murder the accused is alleged to have committed, the prosecution is required to lead some formal proof. After an inquest is held over the dead body, the dead body is handed over to u person to be taken to the Medical Officer to perform the post-mortem. This evidence is necessary to complete the chain which the prosecution must establish in order to show that the person whose murder the accused is alleged to have committed was found by the Medical Officer on post-mortem examination to have met with a homicidal death. This evidence is necessary to complete the chain which the prosecution must establish in order to show that the person whose murder the accused is alleged to have committed was found by the Medical Officer on post-mortem examination to have met with a homicidal death. But it cannot be suggested that this formal proof, which the prosecution is required to adduce in order to complete the chain and establish the offence against the accused, should be put to the accused in his examination under Section 342 of the Code of Criminal Procedure, 1898 on the ground that unless this evidence is there, the accused may not be convicted and, therefore, it is also remotely a circumstance appearing in the evidence against the accused. 15. The prosecution evidence in regard to compliance with Rules 7, 17 and 18 was, therefore, not a circumstance appearing in the evidence against the petitioner within the meaning of those words in Section 342 and, therefore, the oral evidence of Food Inspector Nakhava in that behalf need not have been put to the accused when he was examined under Section 342 of the Code of Criminal Procedure, 1898. Alternatively, no prejudice had been caused to the petitioner merely because the oral evidence of Nakhava was not put to the petitioner in his examination under Section 342 of the Code of Criminal Procedure, 1898, as the point could be canvassed, and, in fact, it was canvassed before the learned Sessions Judge, on the basis of the evidence, that there was no compliance with Rules 7, 17 and 18 of the Act. It may be noted that this point, namely, that the petitioner was not questioned in regard to the oral evidence of Nakhava regarding compliance with Rules 7, 17 and 18, was not even raised or canvassed before the learned Sessions Judge. 16. The first contention of Mr. Ganatra that there was non-compliance with Rules 7, 17 and 18 of the Rules is, therefore, rejected. 17. Turning to the next contention of Mr. Ganatra, it is true that the petitioner has proved that he had purchased one bag of Tur Dal from Bhingarde (D.W.1) on 22nd June 1972 under the bill (Ex.34) which contains the necessary warranty. Ganatra that there was non-compliance with Rules 7, 17 and 18 of the Rules is, therefore, rejected. 17. Turning to the next contention of Mr. Ganatra, it is true that the petitioner has proved that he had purchased one bag of Tur Dal from Bhingarde (D.W.1) on 22nd June 1972 under the bill (Ex.34) which contains the necessary warranty. But, as rightly pointed out by the learned Sessions Judge, on the material on record it is not possible to hold that the Tur Dal from which Nakhava purchased 750 gms. on 28th November 1972 was the same Tur Dal which the petitioner had purchased from Bhingarde on 22nd June 1972 under Ex.34. The evidence of Bhingarde shows that the petitioner buys articles from him 3 to 4 times in a month and these articles include Tur Dal. Although he was not in a position to remember whether the petitioner had purchased any Tur Dal from him after 22nd June 1972, the evidence of the witness is that the petitioner did buy articles from him even after 22nd June 1972. The possibility is thus not ruled out from this evidence lhat the Tur Dal from which the Food Inspector had taken the sample was from the consignment which the petitioner had bought after 22nd June 1972. At any rate, the burden being on the petitioner to prove his defence under Section 19(2) of the Act, from the state of evidence the petitioner cannot be said to have proved that the Tur Dal from out of which the Food Inspector Nakhava took sample on 28th November 1972 was the same Tur Dal which he had purchased from Bhingarde on 22nd June 1972 under Ex.34. On preponderance of probabilities also, the learned Sessions Judge has found the defence not acceptable, inasmuch as there was an interval of more than five months between the purchase of the Tur Dal by the petitioner under Ex.34 and the taking of the sample by the Food Inspector on 28th November 1972 and it seems unlikely that the petitioner was still selling Tur Dal from the same consignment of one bag after a period of more than five months. The learned Sessions Judge, who was the final Judge of facts, has found it as a fact that the petitioner had failed to prove that the Tur Dal out of which the Food Inspector had taken the sample on 28th November 1972 was the same which the petitioner had purchased from Bhingarde on 32nd June 1972 under Ex.34. In a revision that finding could not be challenged. 18. Mr. Ganatra next submitted that the petitioner may be permitted under Section 428 of the Code of Criminal Procedure, 1898 to lead evidence of the relevant entries from his purchase register, Jama Nondh, Khatavahi and Kird to show that the consignment from which the Food Inspector had taken the sample on 28th November 1972 was the same which the petitioner had purchased from Bhingarde on 22nd June 1972 under Ex.34. This prayer has been seriously opposed by Mr. Barday on behalf of the State and rightly so. There is no reason why such a prayer was not made in the two Courts below, which, as Courts of facts, had to go into the above question. It is now too late in the day for the petitioner to contend in a criminal revision application that he should be allowed to lead additional evidence in order to prove his defence under Section 19(2) of the Act. 19. The second contention of Mr. Ganatra that the petitioner is protected by Section 19(2) of the Act is also, therefore, rejected. 20. Turning to the third and the last contention of Mr. Ganatra, the following grounds have been stated in the criminal revision application for giving the benefit of the Probation of Offenders Act to the petitioner:- "In the event of the conviction of the applicant being confirmed, the applicant submits that the sentence imposed on him is too severe. On the date of the alleged offence, the applicant was running 22nd year of his age. The applicant is unmarried, The applicant is a small retail trader. The alleged offence would be the first offence. The applicant is not the manufacturer of Tur Dal in question. He did not add any colour to the Tur Dal in question. The applicant's career and life will be ruined because of the substantive sentence of imprisonment. The applicant submits that there are adequate and special reasons to impose on the applicant the sentence less than the minimum. The applicant is not the manufacturer of Tur Dal in question. He did not add any colour to the Tur Dal in question. The applicant's career and life will be ruined because of the substantive sentence of imprisonment. The applicant submits that there are adequate and special reasons to impose on the applicant the sentence less than the minimum. The applicant submits that on the facts and circumstances of the case, the applicant be released on probation under Section 4 of the Probation of Offenders Act, 1958." 21. Mr. Barday on behalf of the State has conceded that the benefit of the Probation of Offenders Act, 1958 can be given to an accused convicted of an offence under the Act. But he relies upon the Supreme Court decision in P.K. Tejani v. M.R. Dange, AIR 1974 SC 228 = (1974 Cri LJ 313) and contends that it is not desirable to give the benefit, of the Probation of Offenders Act to an accused who is convicted of an offence under the Act. 22. It is true that in the above decision of the Supreme Court there are observations:- "In the current Indian conditions the probation movement has not yet attained sufficient strength to correct these intractable. Maybe, under more developed conditions a different approach may have to be made. For the present we cannot accede to the invitation to let off the accused on probation." It may be noted that in that case the convicted accused was himself the manufacturer of the adulterated article. It was in relation to this class of persons that the following observations were made:- "No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade, imperil numerous innocents. He is a security risk. Secondly, these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process. Neither casual provocation nor motive against particular persons but planned profit-making from numbers of consumers furnishes the incentive-not easily humanised by the therapeutic probationary measure." Perhaps, it was in regard to these intractables that the observations were made by the Supreme Court that in the current Indian conditions the probation movement has not yet attained sufficient strength to correct them and, therefore, the Court was not inclined to accede to the invitation to let off the accused on probation. 23. 23. Different considerations, however, arise in the present case. The petitioner is not himself a manufacturer but is a retailer. While the manufacturer cannot claim that he is unknowingly passing an adulterated article of food, a retailer may be able to do so. Although that makes no difference to the offence under the Act because the offence is absolute and the question whether a person selling on adulterated article has or has no knowledge of the article bring adulterated is of no consequence, yet when the question of imposing a penalty comes, certainly, different considerations should weigh when a person is knowingly passing an adulterated article of food and a person who is unknowingly doing so. In the case of a retailer of the kind of the petitioner, his position is certainly unenviable. For him, a defence under Section 19(2) of the Act may exist only on paper. For a retailer who buys an article in a sealed condition with a view to sell it in the same condition, there might be no difficulty. But for a retailer who buys a commodity like grains or pulses from a wholesaler, he obviously as a retailer cannot sell the bags as they are. He must open the bags and sell the commodity in parts. Even if, therefore, he obtains a warranty from the wholesaler, it may be difficult for him to establish the identity of the article which he had purchased from the wholesaler with the article when at a subsequent date he is in the process of selling the commodity as retailer in parts. In the present case, the possibility could not be ruled out that what the petitioner had been contending was true. This is more so, because the Public Analyst had reported that the appearance of the article was normal and it was only when a test for colour was made that it was found to contain metalline yellow, a non-permitted coal tar dye. But because he could not discharge the statutory burden under Section 19(2), he could not get the protection under that provision. The offence is such that the Court is powerless to impose a sentence on the petitioner less than the minimum. This is, therefore, a fit and proper case where instead of sending the petitioner to jail, it would be expedient to bind him down under Section 4 of the Probation of Offenders Act, 1958. The offence is such that the Court is powerless to impose a sentence on the petitioner less than the minimum. This is, therefore, a fit and proper case where instead of sending the petitioner to jail, it would be expedient to bind him down under Section 4 of the Probation of Offenders Act, 1958. 24. In the result, the order of conviction will stand. But the order of sentence is modified. The sentence of imprisonment and fine is set aside and instead I order that the petitioner be released on probation under Section 4 of the Probation of Offenders Act on his entering into a bond in the sum of Rs. 2,000, with one surety for the like amount, to the satisfaction of the Judicial Magistrate, First Class, Chiplun, to appear and receive sentence when called upon during the period of one year and in the meantime to keep the peace end be of good behaviour. Subject to this modification in the matter of sentence the revision application fails and is dismissed and the Rule is discharged. The fine, if paid, to be refunded to the petitioner. His bail bond will stand cancelled on his executing the bond as stated above. Revision dismissed.