State of Maharashtra v. Trilokchand Bhivraj Jain — 1977 DIGILAW 143 (BOM)

Judgment C.T. DIGHE, J.:---The State of Maharashtra has come in appeal against the order of acquittal, dated 29th September 1975, passed by the Joint Civil Judge, Junior Division, and Judicial Magistrate, First Class Dhulia, acquitting respondent Trilokchand Bhivraj Jain, of the charge under section 7(i) read with 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter called "the Act".). 2. The complainant Nandkumar Mahadev Acharya visited the shop of the accused on 4-12-1972 at about 1.15 p.m. It was a grocery shop run under the name of M/s.Trilokchand Bhivraj Jain, the respondent-accused was the proprietor. 18 Kilos of Catechu was found kept in a tin with the words Kath painted on it. 600 gms. of Catechu came to be purchased for Rs. 18/- in the presence of the panchas. It was divided into three equal parts and placed in three polythene bags. The bags were sealed, one of it was given to the accused and his receipt was obtained. A panchanama was drawn up. One sample bag came to be sent to the Public Analyst and one bags was retained by the complainant. The report from the Public Analyst disclosed that the sample was adulterated under section 2(i)(e) of the Act. Upon getting the requisite sanction, the accused was prosecuted. 3. The evidence consisted of the Food Inspector panch Babulala Agarwal, another panch Manekchand Surajmal Jain and another Inspector Satishkumar Vishwanath, who accompanied Inspector Acharya. On the evidence before him, the learned Magistrate acquitted the accused holding that the requirements of Rules 17 and 18 of the Prevention of Food Adulteration Rules 1955 (hereinafter called the rules) were not fulfilled. 4. Mr. Kamat, the learned Assistant Government Pleader for the State, urges that the view taken by the learned Magistrate, regarding the non-observance of the Rules is erroneous in the present case. A presumption ought to have been raised in favour of the State. 5. Mr. Ganatra, the learned Counsel for the respondent, argued that when the mandatory provisions of the Rules are not observed, no presumption could be raised in favour of the prosecution. A part of the report given by the Public Analyst is inadmissible inasmuch as it does not fall under the provisions of Rule 13(5) of the Rules and even otherwise the order of acquittal would be good. A part of the report given by the Public Analyst is inadmissible inasmuch as it does not fall under the provisions of Rule 13(5) of the Rules and even otherwise the order of acquittal would be good. In this connection, he contends that the quantity sent to the Public Analyst was insufficient, the report itself was received later than the prescribed limit, the Article analysed is not proved to have been edible food, the charge framed, therefore, was defective and the tests applied for detecting the alleged adulteration do not appear to be convincing for proving that the sample was an adulterated sample. For these reasons, he contends that the order of acquittal ought not to be set aside. 6. Food Inspector Acharya, in his deposition speaks of his going to the shop and collecting 600 gms. of Catechu. According to him that time the accused said that persons running Pan Stalls take this Katha, and use it as edible (Katha). He then speaks of his obtaining the receipt and the accused giving a cash memo. The Food Inspector further says that after drawing a panchanama "I sent one sample packet to the Public Analyst, Poona, I sent separately by registered post copy of Form No. 7 and specimen of the seal. I produce the office copy of the Form No. 7 (marked Exh. 15)". Punch Babulal supports the case of collecting sample of Catechu.. In cross examination, he also says that a box was brought from the godown. It was a sealed and packed box. It was opened and the lumps in the open tin and the box were compared. According to the witness, the lumps tallied in appearance and size. 7. Panch Manekchand Surajmal Jain also is supporting the case of attaching 600 gms. of Catechu and refers to a box having been brought in the shop from godown. He has not however spoken about the lumps in the packed box talking with the lumps attached. 8. According to Food Inspector Satishkumar Vishwanath Khairnar, the accused was present at the counter attending to the customers when the Food Inspector visited his shop. There was a tin containing 18 Kgs. of Katha kept open for sale. Inspector Acharya asked him for what Katha was meant and the accused replied that it was taken by persons dealing in betel leaves as edible product. There was a tin containing 18 Kgs. of Katha kept open for sale. Inspector Acharya asked him for what Katha was meant and the accused replied that it was taken by persons dealing in betel leaves as edible product. He also speaks about the sealed box having been brought from the godown but has not spoken about the compensation having been done. 9. On the question of observance of Rules, it need not be gain said that according to Rule 17, the container of a sample has to be sent to the Public Analyst, by registered post or otherwise in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst and as per Rule 18, 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 otherwise. As per Rule 7, as soon as the sealed packet is received by the Public Analyst he himself or an authorised officer has to compare the seals on the container and the outer cover with specimen impression received separately and he must note the condition of the seals thereon. It would, therefore, follow that the packet ought to carry the seal. Inside the packet would be the container of the sample, and Form VII kept in an outer cover. Rule 7 would show that the container as well as the outer cover are also required to be sealed. Besides that the copy of the memorandum as well as the specimen impression of the seal ought to be received by the Public Analyst separately. 10. Mr. Ganatra argues that witness Inspector Acharya only stated of his sending the sample packet to the Public Analyst, Poona and, therefore, there is no evidence that the original Form VII was sent with the sample or that it was sent in an outer cover in a sealed packet. Referring to his further statement that he sent separately by registered post a copy of Form VII and the specimen of the seal, he remarks that the registration certificate is not produced in evidence nor is any receipt of the public Analyst produced, nor is the specimen seal produced. Because of these omissions, according to him, the requirements of Rules 17 and 18 are not followed. 11. Because of these omissions, according to him, the requirements of Rules 17 and 18 are not followed. 11. It is not disputed that the observance of these Rules is a must. The Rules are mandatory in character. The decision reported in (Laxmandas Sarvottamadas Doshi Co. v. The State of Maharashtra)1, 77 Bom.L.R. 480, makes it clear. "The provisions of Rules 7 and 18 of the Prevention of Food Adulteration Rules, 1955, are mandatory and non-compliance therewith affects the evidentiary value of the report of the Public Analyst. The purpose behind Rule 18 is to prevent the possibility of tampering by third person in whose hands the sample as well as the specimen seal are put. In order to avoid tampering, the Rule provides that the two things are not sent together but they must be sent separately so that the mischief of tampering the entire sample by changing the seal on the packet as well as the specimen seal sent in another packet is avoided." 12. The Division Bench of our High Court has confirmed this view in (Enayat Ali Nazar Ali Bhori v. The State of Maharashtra)2, 78 Bom.L.R. 293, but has observed as follows :--- "That where the cover containing the sealed packet of the sample for analysis enclosed together with a memorandum in Form VII was sent along another packet containing the memorandum and specimen of the seal with the same peon, there was no it infraction of Rule 18 of the Prevention of Food Adulteration Rules". 13. The Rules thus, being mandatory in character, their observance ought to be evident. 14. It is the case of Mr. Ganatra, that when the Rules are not properly observed, the recitals in the report of the Public Analyst are not sufficient to prove their compliance. There ought to be substantive oral evidence on the point. He relied on the observations in (Criminal Appeal No. 1212 of 1973, decided on 11-2-1975 by Justice Vimadalal.)3. In that case the Food Inspector had taken a sample of biscuits in the presence of the panchas and the sample was sent to the Public Analyst. There was however, no evidence on record to show that the specimen of the seal which had been used to seal the samples sent to the Public Analyst was forwarded to the Public Analyst as required by Rule 18 of the Rules. There was however, no evidence on record to show that the specimen of the seal which had been used to seal the samples sent to the Public Analyst was forwarded to the Public Analyst as required by Rule 18 of the Rules. The memorandum sent along with the sample recited that a specimen impression of the seal "is being sent separately by post/hand". The learned Judge held that the memorandum was sent mechanically inasmuch as one of the words out of the words post or hand was not scored and also concluded that the words used were insufficient for showing that the specimen which was intended to be sent was in fact sent. He did not therefore give any probative value to the statement contained in the report of the Public Analyst that the seal fixed on the container of the sample tallied with the specimen of the seal sent separately by the Food Inspector. The learned Judge concluded that it was a redundant recital and unless somebody went into the witness box to make a statement to that effect, there was no evidence to prove the compliance with Rule 18. 15. Similar view has been taken by Justice Deshmukh in deciding (Criminal Appeal No. 134 of 1975 on 26-8-1976)4. The observations made by the learned Judge in (Criminal Appeal No. 100 of 1975, decided on 25-8-1976)5, show that the challenge in the case not in respect of sending of the articles together but it rested on the question whether the Food Inspector prepared a separate specimen of the seal used and whether such a seal was sent to the Public Analyst for purposes of verification. As there was no evidence on the preparation of a separate specimen of the seal nor any allegation of sending any such specimen seal for comparison the analysis contained in the report Exh. 19 was not considered to be authentic analysis of the article attached from the accused. 16. It is said that the Food Inspector did not make a statement that he prepared a separate memorandum of the fascmile of the seal and that he had sent that seal to the Public Analyst, nor did he say that he sent any such document from the printed material contained in Form No. 3, it cannot be said that the Public Analyst must have received such a document. The report of the Public Analyst was taken as signed mechanically. 17. In the other appeal, while referring to the sending of the two article separately, it is said that "the purpose of the legislature in introducing this procedure obviously is that the Public Analyst is to first compare the fascmile of the specimen seal from the separate communication under Rule 18 with the seal on the packet sent under Rule 17. On comparing, he must find that they are similar so that the identify of the article sent in relation to the particular accused is established. Thereafter, the Public Analyst has to undertake the analysis of the article". In that case it was said that the Food Inspector not only did not speak of sending any such communication to the Public Analyst but did not even allege that he prepared such a document. 18. In our case, there is the report of the Public Analyst in Form No. 3, in first part of which certifies that he received the sample for analysis properly sealed and fastened, and that he found the seal intact and unbroken. The seal fixed on the container tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. Relying upon these statements obtainable in the report Mr. Kamat for the State argues that all the requirements of Rules 7, 17 and 18 of the Rules have been observed. He had received the sample in a sealed condition, intact, unbroken and fit for analysis and that the seal fixed on the container tallied with the specimen impression sent separately, thus, implying that the on oath that he sent separately by registered post a copy of Form No. VII and a specimen of the seal. He has, however, nowhere spoken of his sending the original Form No. VII, nor has he stated that Form No. VII was sent in an outer cover in a sealed packet. The recitals noted in the report in Form No. 3 cannot throw any light on this aspect, and upon the principle enunciated in the rulings quoted above, the prosecution cannot take assistance of any presumption in section 114(e) of the Indian Evidence Act. 19. The recitals noted in the report in Form No. 3 cannot throw any light on this aspect, and upon the principle enunciated in the rulings quoted above, the prosecution cannot take assistance of any presumption in section 114(e) of the Indian Evidence Act. 19. With reference to the drawing of a presumption, we can look to the two decision (Emperor v. Leslie Gwilt)6, 47 Bom.L.R. 431 and (Emperor v. Purushottom Harjivan Shah)7, 48 Bom.L.R. 379. According to the observations of the Full Bench in Leslies case; "No presumption can arise under section 114(e) of the Indian Evidence Act, 1872 that the issuing authority had decided that the order was to be published in the Official Gazette alone. The burden of proving the manner which in the opinion of the authority issuing the order was best adapted to inform the person concerned is on the prosecution." "The meaning of section 114(e) is that if an official act is proved to have been done, it will be presumed to have been regularly done. It does not raise a presumption that an act was done of which there is no evidence and the proof of which is essential to the case." 20. In other words, the presumption is applicable to the regularity of the act done but the presumption cannot be raised, if in proof of the doing of an act is wanting and if proof of the doing of that act is essential to the case. In my opinion, since the observance of Rules 7, 17 and 18 of the Rules are mandatory, evidence regarding doing of acts contemplated in those rules is essential and there would be no scope for raising of presumption in that respect under section 114(e) of the Indian Evidence Act. 21. Purushottams case (supra) lays down that a notification issued under section 14 of the Ordinance empowering the Controller General of Civil Supplies to grant sanction for prosecution is invalid and ultra vires, in absence of proof that the officer so empowered is not below the rank of a District Magistrate. Law required that no prosecution for any offence punishable under the Ordinance could be instituted except with the previous sanction of the Central or the Provincial Government, or of an officer not below the rank of a District Magistrate. By the notification that authority was delegated to the Controller General of Civil Supplies. Law required that no prosecution for any offence punishable under the Ordinance could be instituted except with the previous sanction of the Central or the Provincial Government, or of an officer not below the rank of a District Magistrate. By the notification that authority was delegated to the Controller General of Civil Supplies. But it was not evidence whether the Controller General was an officer not below the rank of a District Magistrate. That was an essential character of the person granting the sanction. As long that was not clear mere proof of the issuance of notification would not show that there was proper exercise of power. 22. I had occasion to consider this point in (Chandanmal v. State of Maharashtra)8, Criminal Appeal No. 2280 of 1976, decided on 30-9-1976, Dighe, J. (Nag,). The question arose under the Food Adulteration Act, regarding the sending of the sample to the Director of Central Food Laboratory, Calcutta. Such sample is required to be sent under Rule 4(1) of the Rules which corresponds with Rule 17 in respect of the manner in which it is to be sent. Similarly sub-rule (3) of Rule 4 corresponds with Rule 18 as regards the formalities to be observed in sending the sample. It was contended inter alia that there was no material for showing that a copy of the memorandum and the specimen impression of the seal were separately sent by registered post to the Director. On the file there was one postal receipt for the registered articles sent to the Director. Although the samples were sent by registered post if they were sent separately, there ought to have been two receipts for two registered articles, one containing the sample enclosed together with a memorandum in Form I in an outer cover, the packet marked with a distinguishing marked and the other containing copy of memorandum and the specimen impression of the seal used to seal the container and the cover also marked with a distinguishing number. On record there was only one receipt showing the posting of the registered articles. There was, therefore, no compliance with sub-rules (1) and (3) so that either the sample, the memorandum, the specimen impression of the seal and copy of memorandum were sent together or the sample alone was sent. 23. On record there was only one receipt showing the posting of the registered articles. There was, therefore, no compliance with sub-rules (1) and (3) so that either the sample, the memorandum, the specimen impression of the seal and copy of memorandum were sent together or the sample alone was sent. 23. The contention of the prosecution for raising presumption under section 114(e) of the Indian Evidence Act, was not upheld, because of the observations in Purushottams case (supra) that the presumption is that of the regularity of the official acts, whether judicial or executive, and not that of the acts themselves being done. For the same purpose reliance was placed on the decisions in (Harry Lazrado v. State of Mysore)9, A.I.R 1966 Mys. 244. The learned Judges say that the presumption in regard to the regularity of procedure followed by the Public Analyst may be raised when there is proof that the Food Inspector had discharged his functions according to the Rules. To raise a presumption both in favour of the Food Inspector and the Public Analyst is to render the rules superflus and meaningless. 24. In this connection the reference may be made to the decision in (Criminal Revision Application No. 207 of 1974, decided by Justice on 10-9-1974)10, while dealing with the challenge based on non-observance of Rules 7 and 18 of the Rules, reliance was placed on the factual finding that the specimen impression of the seal was not sent separately by the Food Inspector and as such Rule 18 was not complied with. A contention based on the application of the ruling in (Krishna Rajaram Wani v. N.V. Krone)11, A.I.R. 1966 Mys. 244, was discarded because the facts of that case could have no application to the facts of the case under reference. In Krishna Rajarams case (supra) the contention regarding the breach of Rules 7 and 18 raised in revision for the first time was not allowed hand the learned Judge deciding that case had also found in the file a document though not produced by the prosecution showing that the specimen seal was not sent separately to the Public Analyst. In Krishna Rajarams case (supra) the contention regarding the breach of Rules 7 and 18 raised in revision for the first time was not allowed hand the learned Judge deciding that case had also found in the file a document though not produced by the prosecution showing that the specimen seal was not sent separately to the Public Analyst. Since in the case decided by Justice Naik there was positive evidence to show a clear non-compliance of Rules 7 and 18 of the Rules, it was held that there was no scope for invoking any presumption under section 114 of the Indian Evidence Act. 25. It would be useful at this stage to refer to an unreported decision of the Supreme Court in (Kassim Kanju Pookunji and another v. K.K. Ramkrishna Pillai and another)12, Cri. Appeal No. 29 of 1968, dt. 2-12-1968 (S.C.). The appellants were accused of offences under sections 7(1) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The oral evidence in the case, indicated that the third part of the sample of compounded asafoetida was forwarded to the Public Analyst along with the memorandum in Form No. VII and a specimen impression of the seal used. The oral evidence also showed that the sample which was to be sent to the Public Analyst and the memorandum and the specimen impression were entrusted to a panchayat officer, who sent them by registered post. The contention raised was that it had not been proved that the specimen impression of the seal used had been sent to the Public Analyst and that it was nowhere stated that the Public Analyst had compared the specimen impression of the seal with the specimen impression on the packet of the sample. Relying upon the recitals in the report that the sample was received properly sealed and packed and that the seal was intact and unbroken and relying upon the oral evidence regarding the sending of the seal separately the Court came to the conclusion that official acts must be presumed to have been regularly performed and as such it must be presumed that the Public Analyst acted in accordance with the rule so that he must have done the comparing. It is, therefore, said "the evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the rules had been satisfied." 26. It is, therefore, said "the evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the rules had been satisfied." 26. A reading of the judgment would show that the sending of the specimen seal separately and the comparing was challenged. The Court relied upon the oral evidence showing that the seal was sent separately and the presumption regarding comparison was raised because it was taken as an official act done regularly by the Public Analyst. As far as it could be seen the report does not show that there was any infirmity in following any essential viz., the manner of sending the samples or taking the samples and sending the duplicates. As it was the question of raising a presumption regarding the comparison that presumption was allowed to be raised. 27. In my opinion, this ruling would not be of any help to the prosecution when the essential requirements themselves are not shown to have been done or when positive evidence exists of their non-performance. 28. The same view appears has taken by Justice Jahagirdar in (H.T. Jadhav v. Ramniklal s/o Thakersee another)13, 1977 U.C.R. (Bom.) 359. On behalf of the prosecution reliance was sought to be placed on the statement in the report of the Public Analyst for showing that the specimen impression of the seal which was fixed on the container of the sample had been sent separately by the Food Inspector. Recourse was taken to section 114 of the Indian Evidence Act for contending that the Court ought to assume that the impression of the specimen seal was sent separately. After observing the mandatory character of the requirement embodied in Rules 7 and 17 of the Rules, on the question whether they were complied with, it was found that the oral evidence to show that the specimen seal and the memorandum were sent separately as required was absent. After observing the mandatory character of the requirement embodied in Rules 7 and 17 of the Rules, on the question whether they were complied with, it was found that the oral evidence to show that the specimen seal and the memorandum were sent separately as required was absent. Since the Inspector himself did not speak of it by way of substantive evidence, it was held unnecessary for the defence to cross-examine him on that question and in view of the total failure on the part of the Food Inspector to mention that he sent a sample, the memorandum form and the specimen seal separately and in view of the admission of the person who reached them to the office of the Public Analyst, that they were sent together in a cloth bag, it was said that the Public Analyst had signed the report containing such recitals mechanically. 29. The Supreme Court decision in Kassim Kanju Pookunju and another v. K.K. Ramkrishna Pillai, is distinguished by saying that the facts of the Supreme Court case show that the memorandum and the specimen impression of the seal were sent separately, what was challenged was that the Public Analyst had not mentioned in the report regarding his comparison of the specimen impression of the seal with the one on the memorandum. No presumption was raised in favour of the prosecution as there was no evidence to show that the memorandum and specimen seal were sent separately. 30. Justice Kamble at Nagpur Bench in deciding (Criminal Revision Applications Nos. 63, 64 and 65 of 1976, on 15th October, 1976)14, had to deal with the contention that there was no comparison made by the Public Analyst of the seals on the container and the outer cover with specimen impression received. Reliance was placed on the acknowledgment regarding the Food sample given by the Public Analyst in which there was no reference to the packet being sealed. It has been observed that there was no satisfactory evidence on record except the bare statement in the report of the Public Analyst that the samples when they were received were properly sealed and the prosecution wanted to rely only upon the printed receipts of the report. Since there was no proper compliance with the provisions of Rules 7 and 17, the conviction of the applicant was held vitiated. 31. Since there was no proper compliance with the provisions of Rules 7 and 17, the conviction of the applicant was held vitiated. 31. When we are on the question of raising of a presumption, the decision in (State of Madhya Pradesh v. Chhotekhan Nannekhan)15, A.I.R. 1970 M.P. 29 : 1970 Cri.L.J. 238 will be of relevance. The Full Bench was disposing of there cases. In Chhotekhans case argument was that there was no specific evidence to show that a specimen of the seal had been sent separately as required by Rule 18 of the Rules or that the Public Analyst had compared the seals as required by Rule 7, of the Rules. In Ataul Haquess case conviction was challenged only on the ground that no evidence was led to show that the provisions of Rules 7 and 18 were complied with. Similar was the contention in Kundanlals case. The (State Criminal Appeal No. 180 of 1966, decided by the Madhya Pradesh High Court on 25-8-1966)16, was referred to for the observations that the Rules are mandatory and if the Rules are mandatory, there cannot be a presumption that the officials acts have been properly performed. The reported decision proceeds to a draw a distinction between relevancy or admissibility of a piece of evidence and the value to be attached to it and it is stated that by reason of section 13(5) of the Prevention of Food Adulteration Act, the report of the Public Analyst would be admissible but what value ought to be attached to it may have to be determined by the Court. It is said that the limited question before the Court was whether in view of the illustration (e) in section 114 of the Indian Evidence Act, a rebuttable presumption that the official acts of sending a specimen seal separately and the comparison of the seal on the container with the seal so sent, were properly performed. Reliance thereafter was placed on the decision of the Supreme Court in Kassim Kanju Pookunju another v. K.K. Ramkrishna Pillai and another, and the presumption was allowed to be raised although it is said that it was a rebuttable presumption. 32. Reliance thereafter was placed on the decision of the Supreme Court in Kassim Kanju Pookunju another v. K.K. Ramkrishna Pillai and another, and the presumption was allowed to be raised although it is said that it was a rebuttable presumption. 32. With grant respect, it may be observed that in the Supreme Court decision referred to above, the mandatory provisions were taken as having been complied with and the presumption was raised for holding the comparison done by the Public Analyst. When, therefore, there is the absence of the evidence showing the performance or the observance of the mandatory requirements of the Rules, it appears that no presumption could be raised for holding that those acts themselves were done. 33. Justice Apte while deciding (Criminal Appeal No. 1327 of 1973, on 4th March 1975)17, has referred to the Full Bench decision of the Madhya Pradesh High Court. The question was in respect of a sample of Tur Dal and sample of chilly powder. One of the objections raised was that the copy of the memorandum and the specimen impression of the seal used to seal the packet was not sent separately to the Public Analyst. Although Justice Apte has in the alternative relied upon the presumption under section 114 illustration (e) of the Evidence Act, based on the recitals in the report, that is an obiter finding because the objection was in respect of sending the samples separately, that is to any at two independent times but on facts, noticing that the packet containing the sample together with the memorandum was separately kept from the copy of the memorandum and the specimen seal although both the packets were handed over together in the office of the Public Analyst, the learned Judge held as a sufficient compliance with the Rule by observing as follows :- "But in my view, separately does not mean at different times or after some interval but what it means is that the sample and the memorandum in Form No. VII must be kept separately from the copy of the memorandum and the specimen impression of the seal, and it is immaterial if both the packets are handed over or sent to the Public Analyst at one and the same time." 34. Incidentally, the Division Bench of our High Court has accepted this view while deciding the case of Enayat Ali. Incidentally, the Division Bench of our High Court has accepted this view while deciding the case of Enayat Ali. The decision of the Court, therefore, was based on the factual finding of the compliance with the Rules and no question of inferring the compliance by raising a presumption arose. 35. The Full Bench decision of the Madhya Pradesh High Court was cited before Patna High Court as will be seen in (Jamshedpur Notified Area Committee v. Niranjan Paul and others)18, 1976 Cri.L.J. 421. Rules 7 and 18 of the Rules were taken as mandatory and while dealing with the question whether notwithstanding the absence of evidence to show that the procedure prescribed under Rules 7 and 18 of the Rules, has been observed, the presumption under section 114(e) of the Evidence Act should be applied, it has been said that there has been diversity of opinion, one view was that unless it was proved that all the steps before the Public Analyst makes his report, had been duly taken the presumption under section 114 of the Evidence Act would not be available, the contrary view was notwithstanding the absence of evidence regarding the due performance of the obligations under Rules 7 and 18, a legal presumption under section 114 of the Evidence Act could be taken in it. In dealing with the Full Bench decision relevant observation are :--- "With grant respect to the view so expressed, I think it proceeds on a confusion with regard to the obligations embodied under Rules 7 and 18 of the Rules. The analysis report is on the sample contained within the container. The Rules 7 and 18 though indirectly have a bearing on the content of the container has not been sealed in the manner as required, there is no guarantee that the sample analysed by the Public Analyst was the very same sample which had been collected from the vendor-accused. Thus, whereas the Public Analyst report will be a report upon a sample which he analysed, but it cannot be said in the absence of evidence of due performance of the obligations prescribed under Rules 7 and 18 that the sample which the Public Analyst analysed was the very same sample which had been collected from the vendor-accused. Thus, whereas the Public Analyst report will be a report upon a sample which he analysed, but it cannot be said in the absence of evidence of due performance of the obligations prescribed under Rules 7 and 18 that the sample which the Public Analyst analysed was the very same sample which had been collected from the vendor-accused. Moreover on the discussions which I have made above, I have come to the conclusion that the formalities required to be performed under Rules 7 and 18 of the Rules were of a mandatory character and therefore, in absence of evidence of due performance of those requirements even according to this Full Bench decision, the principles embodied in illustration (e) of section 114 of the Evidence Act will not be available." 36. Mr. Kamat, the learned Advocate for the State, invited my attention to the judgment of Justice Dharmadhikari in (Sunil v. The State of Maharashtra)19, Cri.R.A. No. 141 of 1975, dt. 24-6-1976 (Nag.) on the file of the Nagpur Bench. A copy of the judgment which has come before me, is only a part judgment disposing of certain points raised and the matter was adjourned for decision on the question whether sufficient quantity was sent for analysis, on the expected decision of a larger Bench of the High Court. However, views are clearly expressed on the question regarding the observance of the mandatory Rules and the raising of the presumption. One of the contentions raised was that there was no compliance of Rules 7 and 18 of the Rules. Although the Public Analyst had compared the seals with the specimen impressions he had not specifically stated that the sample tallied with the specimen impression of the seal or that it was in a fit condition for analysis. Upon reading the report it is observed that it substantially confirms with the procedure prescribed under Rule 7, though it appears that it was given under an unamended form wherein a clear statement about the comparing of the seals was not printed as is now found embodied in the prescribed Form III. Upon reading the report it is observed that it substantially confirms with the procedure prescribed under Rule 7, though it appears that it was given under an unamended form wherein a clear statement about the comparing of the seals was not printed as is now found embodied in the prescribed Form III. Since from the record it was clear that a copy of the memorandum and the specimen impression were duly sent separately and the Public Analyst found the sample properly sealed and fastened, seals intact and unbroken and he had further stated that the seal was compared with the specimen impression, it is held that the Public Analyst analysed the sample not only because he found the seals intact and unbroken but the comparison of the seals showed that the two seals tallied with each other. It is in this connection the observations are made :--- "If from the report it could be gathered that all the procedure prescribed by the Act and the Rules has been followed by the Public Analyst, then mere error or omission, which is minor in nature, cannot vitiate the report. ... ... ... ... .. ... The omission in not using the precise words mentioned in the Form is not of vital importance which must result in rejection of the report issued by the Public Analyst". 37. Relying upon the decision in Kassim Kunju v. K.K. Ramkrishna Pillai, (supra) and State of M.P. v. Chhottekhan, (supra) the observations are; "Once it is established that all the prescribed procedure by the Acts and Rules, had been followed by the Public Analyst and Food Inspector then it may be reasonably presumed that all the official acts have been regularly performed by the Public Analyst". 38. The Full Bench of the Madhya Pradesh has already been looked into. Reliance on the Supreme Court decision referred to above, has to be understood on the background of the facts whether there was absence of evidence regarding submission of the memorandum and seals separately or whether there was absence of the recitals in the report regarding the comparison made and the result of such comparison the Public Analyst had received the specimens separately showing that the compliance with the mandatory Rules, which is independent of the Public Analyst further certifying his comparing the two seals. When therefore, the observance of procedure laid down in Rules 17 and 18 was not doubted no question of raising any presumption for showing compliance with those Rules arises for decision. 39. Even the observations made by the learned Judge cited above show that he envisages establishing that all the procedure prescribed by the Acts and the Rules is followed. It is worthwhile noticing that the learned Judge has referred to the case reported in (Daitari Moht v. State)20, 1971 Cri.L.J. 120 decided by the Patna High Court. It is said that in that case it was found as a fact that the specimen impression of the seal was not sent separately to the Chemical Analyser. Further there was no evidence on record to indicate that the specimen impression of the seal was actually received by the Public Analyst. In this context Patna High Court held that there was a clear contravention of Rule 7(i). That decision is not disapproved. 40. Reference was also made to the decision of the Gujarat High Court in (Mangilal v. The State of Gujarat)21, 1974(15) Guj.L.R. 852 where no statement was made by the Public Analyst that he had compared the seals on the sample with the specimen seal nor did the report contain a statement that the sample was in a condition fit for analysis. Gujarat High Court held that the report of the Public Analyst did not comply with the very material direction regarding comparison of the seals and hence it was not in the form prescribed. The observations are not disapproved but they were distinguished by saying that the report in fact contained such a statement. 41. The position, therefore, according to me, is that when the requirements of Rules 17 and 18 are mandatory, no presumption could be raised for showing that the obligations contained in those Rules are complied with. Similarly fro identifying a particular sample sent for analysis, no presumption can be raised only on the recitals of the report that the sample was received with seals intact. 42. On the contrary, Mr. Similarly fro identifying a particular sample sent for analysis, no presumption can be raised only on the recitals of the report that the sample was received with seals intact. 42. On the contrary, Mr. Ganatra for the respondent relied upon the decision in (Gokulchand Dwarkadas Morarka v. The King)22, 50 Bom.L.R. 399 where the main decision relates to the proposition of law that if the facts constituting the offence argued are not shown on the fact of the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Dealing with this aspect, the observations at page 412 are relevant. "There is no evidence to show that the report of the Sub-Inspector to the District Superintendent of Police, which was not put in evidence was forwarded to the District Magistrate nor is there any evidence as to the contents of the endorsement of the District Magistrate referred to in sanction, which also was not put in evidence." 43. It is said that, that could have been easily done and while repelling the contention that an inference in favour of the prosecution, should be drawn, it is observed as follows :--- "Their Lordships see no justification for drawing inference in favour of the prosecution upon matters on which they withheld evidence under matters on which they withheld evidence under their control. Under section 114 of the Indian Evidence Act, ill (g) the normal presumption is that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." 44. The learned Advocate, Mr. Ganatra, is in my opinion, within his bounds to contend that if the Rules were observed, nothing prevented the Food Inspector in speaking of the acts he did, the acts which he was required to do and if he has not so spoken, the inference could be drawn that as a matter of fact, that was not done and hence substantive evidence regarding doing the same could not be produced before the Court. 45. In view of this discussion, it would be clear, that the prosecution has been unable to show along with the sample the original Form No. VII was put in an outer cover or that the original Form was sent along with the sample, or that the outer cover was sealed. 46. In challenging the Public Analyst's report upon yet another ground, Mr. 46. In challenging the Public Analyst's report upon yet another ground, Mr. Ganatra argues that the recitals which are introductory part of the Public Analyst's report speaking of his finding the seals intact and unbroken, the seals fixed on the container tallying with the specimen impression sent separately and the sample being in a fit condition for analysis, are inadmissible in evidence. According to him, the Public Analyst has to step in the witness box for proving those things. 47. There is no dispute that under Rule 7 of the Rules, it is incumbent on the Public Analyst or an officer authorised by him to compare the seal on the container and the outer cover with the specimen impression of the seal and to note the condition of the seal but it is said that this must be done by the analyser by entering the witness box and speaking about it on oath. For this purpose reliance is placed on section 13 of the Prevention of Food Adulteration Act. Sub-section (1) of section 13 of that Act, casts an obligation on the Public Analyst to deliver a report of the result of the analysis. Sub-sections (3) and (4) are in respect of getting a report from the Director Central Food Laboratory under certain circumstances and his certificate superseding the report of the Public Analyst. Sub-section (5) lays down that where such certificate has not been superseded the report of the Public Analyst, any document purporting to be a report signed by the Public Analyst may be used as evidence of the facts stated therein in any proceeding under the Act. It is therefore, argued by Mr. Ganatra that by reason of the operation of sub-section (5) the admissible report is restricted to the analysis done by the Public Analyst that is to say Form No. III which speaks of his certifying the ingredients after the analysis thereon. In the course of the argument Mr. Ganatra said that the last portion of the Form No. III in which the Public Analyst expression his opinion that the sample is adulterated is also inadmissible. This looks to me an extreme view. 48. Mr. Ganatra, however, tried to support it by referring to the judgment of Justice Sapre given in (State of Maharashtra v. Vilas Deshrath Shate others)23, 1976 U.C.R. (Bom.) 195. This looks to me an extreme view. 48. Mr. Ganatra, however, tried to support it by referring to the judgment of Justice Sapre given in (State of Maharashtra v. Vilas Deshrath Shate others)23, 1976 U.C.R. (Bom.) 195. When reliance was sought to be placed, on the recitals in the report of the Public Analyst it is observed that under sub-section (5) of section 13 of the Act, the report of the Public Analyst may be used as evidence of the facts stated therein and it is further said that the expression 'facts stated' cannot be taken to mean the statement embodied in the report speaking of the tallying of the samples etc., and the result of the analysis contained in the report. According to the learned Judge, sub-section (5) of section 13 could not be read in isolation. Mr. Kamat for the State, however, has pointed out that Justice Sapre himself has taken a different view on this topic in a subsequent judgment. He produced a copy of that judgment before me. It is the judgment in (Bhavrilal S/o Chisulal v. The State of Maharashtra)24, 1977 U.C.R. (Bom.) 173. In paragraph 12 of that judgment a reference is made to the statements in the report of the Public Analyst showing that the sample had been received properly sealed and fastened and the seal was found to be intact and unbroken, and the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. Then in connection with the above noted earlier judgment, the learned Judge says that the view taken by him that all the recitals in the report of the Public Analyst are not admissible without the Public Analyst going into the witness box to prove those statements other than the facts of analysis to be contrary to the view expressed in the unreported decision of the Supreme Court, in Kassim Kunju v. K.K. Ramkrishna Pillai (supra). The learned Judge goes on to say that the contention in the High Court that the provisions of Rule 18 were not observed, was disallowed by looking to the contents of the report showing that the article for analysis was received properly sealed and fastened and the seals were found intact and unbroken and relying upon the principle that the official acts must be presumed to have been regularly performed. With great respects the Supreme Court decision referred to, has not considered the effect of sub- section (5) of section 13 as was done by the learned Judge himself in the earlier case and as has been seen earlier in Kassim Kunju v. K.K. Ramkrishna Pillai (supra). The Supreme Court did not entertain the Revision Petition because the High Court had come to the conclusion no facts regarding the comparing and also because 'the evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied." 49. Moreover, the decision in Bhavrilal s/o Chisulal v. The State of Maharashtra, is an authority for the proposition that the recitals in the Public Analyst's report are not inadmissible. I think, that cannot be looked upon as an incorrect view. Mr. Ganatra laid stress on sub-section (5) of section 13 showing that the document purporting to be the report, may be used as evidence of the facts stated therein. A legal presumption regarding the contents of the report is therefore, embodied in sub-section (5) of section 13. Now what are the requirements of the report is to be found in sub-section (1) of section 13, which runs as follows :--- "Report of Public Analyst:--The Public Analyst shall deliver, in such form as may be prescribed, a report to the Food Inspector of the result of the analysis of any article of food submitted." 50. It would be wrong to place emphasis only on the words "the result of the Analysis". The sub-section shall have to be read as a whole and effect will have to be given to it as a whole and in that respect it has to be observed that an obligation is cast on the Public Analyst to send a report in such form as may be prescribed. Therefore, whatever are the contents of the prescribed form part of the report which report has the presumptive value under sub-section (5) of section 13 of the Act. The prescribed Form No. III casts a duty to certify the receipt of the sample certifying the condition of the seal being intact and unbroken, compare the seal with the specimen impression and to certify that the sample was found fit for analysis. The prescribed Form No. III casts a duty to certify the receipt of the sample certifying the condition of the seal being intact and unbroken, compare the seal with the specimen impression and to certify that the sample was found fit for analysis. The prescribed form also casts an obligation to declare the result of analysis and to express an opinion whether the sample is adulterated or not adulterated. If such a report is conceived by sub-section (1), the document purporting to be a report of such a nature has the presumptive value under sub-section (5) of section 13. Consequently the facts stated which are in conformity with the prescribed form will be admissible in evidence. The objection of Mr. Ganatra on that count, therefore, cannot be sustained. 51. Another point raised by Mr. Ganatra in supporting the acquittal, is in respect of the non-observance of Rule 7(3) as applicable at the time when the case was filed. According to that rule, after the analysis had been completed, the Public Analyst had to send to the person concerned two copies of the report of the result of such analysis in Form No. III within a period of sixty days of the receipt of the sample. In our case, it is not disputed that the sample was taken on 4-12-1972. It was despatched from Dhulia on 19-12-1972 and was received by the Public Analyst on 22-12-1972. The report Exh. 15 of the Public Analyst is dated 21-2-1973. It must have been despatched on that day or subsequently and received some time later. Now when the sample was received on 22-12-1972, the period of 60 days expires on 20-2-1973. By that time the report ought to have been sent to the person concerned. The fact that it was signed and despatched not within 60 days shows that non-observance of sub-rule (3) of Rule 7 of the Rules. That Rule 7 contains mandatory provisions cannot be disputed by reasons of the decisions in Laxmandas v. The State of Maharashtra, and Enayat Ali v. State of Maharashtra (supra). If that is so, the breach of sub-rule (3 would also work in favour of the accused-respondent. 52. The next point urged on behalf of the respondent by Mr. Ganatra, is that the sample collected was not 'food' as understood by the Prevention of Food Adulteration Act. If that is so, the breach of sub-rule (3 would also work in favour of the accused-respondent. 52. The next point urged on behalf of the respondent by Mr. Ganatra, is that the sample collected was not 'food' as understood by the Prevention of Food Adulteration Act. The Food Inspector deposed that sample from a tin on which word Katha was painted came to be collected. According to Mr. Ganatra, however, katha exists in two varieties, one as edible Katha and the other used in tanning industry. He argues it is not proved that the particular sample collected was of edible katha so that it could be said that the Food Adulteration Act was attracted. According to him the oral evidence on this aspect is not satisfactory. Food Inspector Acharya deposed about the accused saying that "persons running pan stalls take this katha, and use as edible (article)". He contrasted the statement made by witness Acharya with the other Food Inspector Khairnar. Witness Acharya gives the impression that the accused spoke in his own regarding 'katha' being edible, whereas according to Inspector Khairnar, it was Inspector Acharya who had asked the accused for what the 'katha' was meant and thereupon he replied saying it was edible 'katha'. The conversation as such is not deposed to by Acharya. It may also be noticed that such a recital is absent in the complaint. If we look to the receipt Exh. 11 passed by the accused, the Article is described as white katha from Mysore. There is no scope for imagining that something about pan or beetle nut has been spoken to. It may also be noted in this connection, that witnesses Agarwal and Jain examined on behalf of the prosecution, as panchas do not speak of and conversation between the Food Inspector and the accused speaking about the katha being used in pan as edible article. At the time the sample was taken, it was therefore, not represented that it was an edible article of food. 53. The importance of the above discussion lies in observing that Rule Article 21 of Appendix B, while giving the definition used the words 'Catechu (edible)", showing that the article contemplated by the Prevention of Food Adulteration Act is the edible variety of Catechu and that by implication there exists non-edible Catechu. 54. Mr. 53. The importance of the above discussion lies in observing that Rule Article 21 of Appendix B, while giving the definition used the words 'Catechu (edible)", showing that the article contemplated by the Prevention of Food Adulteration Act is the edible variety of Catechu and that by implication there exists non-edible Catechu. 54. Mr. Ganatra has referred me to a number of books for showing the nature of the article Catechu. He has referred me to Encyclopaedia Britannica Vol. II page 637 which reads as follows :--- "Catechu extract used in dyeing and tanning obtained from several plants, it's chief sources are the wood of two species of Acacia, A Catechu and A Suma, both natives of India. This extract is known as black catechu. A similar extract, known in pharmacy as pale catechu and a commerce as gambler or terrajapohica, is produced from leaves of Uncaria gambir and U. Achida plants of the Indonesian archipelago. These extracts, which have a sweetish taste, are used in medicine as astringents. Chemically, they consist chiefly of mixtures of catechutannic acid and catechin or catechunic acid. It is further said that the name catechu also is applied to an extract obtained from aceca nuts, or beetel nuts the seeds of the fruit of Areca catechu, a plam of south eastern Asia. It consists of the alkaloid are colina which is used as a worming agent in animals." 55. In the Wealth of India, a Dictionary of Indian Raw Materials and Industrial Products, 1948, page 9, Catechu is stated to be found in three varieties as recognised. The following is the extract. (1) Var. catechu proper : Calyx petals and rachis covered with spreading hairs. Found in the Punjab, Garhwal, Kumaon and Bihar; also in north Kanara, Ganjam and the Irrawady Valley. This is the variety from which katha or pale catechu is prepared in Northern India. (2) Var. Catechuoides: Calyx and petals glabrous, rachis puberulous. It is chiefly found in the Sikkim tarai, Assam, Burma and to a certain extent in Mysore and the Nilgiris. (3) Var. Sundra: also considered as a soparate specions (A. Sundra, v.): Calyx, petals and rachis all glabrous. Found chiefly in the Indian Peninsula and upper Burma and is the variety from which cutch is prepared in South India. Katha and Cutch Pl.V.2. The most important produce obtained from A. Catechu is catechu. (3) Var. Sundra: also considered as a soparate specions (A. Sundra, v.): Calyx, petals and rachis all glabrous. Found chiefly in the Indian Peninsula and upper Burma and is the variety from which cutch is prepared in South India. Katha and Cutch Pl.V.2. The most important produce obtained from A. Catechu is catechu. This is obtained by boiling the heartwood with water. In India, two varieties are marketed Katha or pale catechu, and cutch or dark catechu. As sold in the bazar, katha is found in irregular pieces or small square blocks of greyish colour, which on breaking, show crystalline fracture. There is a very large internal demand for it for use in Pan preparations and in medicine. Cutch is marketed in the form of small cubes or blocks, rusty brown or dull orange in colour, and of conchoidal fracture. It is used only for industrial purposes. Although rich in tannin, its used in the preparation of leather has now been replaced to a considerable extent by more suitable materials. However, it is still in demand for use as a dyeing and preserving agent. Vol. No. 1978 (Page No. 264) 56. From this discussion, it would be apparent that in order to attract Rule A-21, we must have material for showing that the article taken possession of by the Food Inspector was Catechu (edible). If that is not proved, the accused would be entitled to a benefit of doubt resulting in his acquittal. 57. In this connection, if we refer to the decision (Shah Ashu Joiwant v. State of Maharashtra)25, A.I.R. 1975 S.C. 2178 it will appear that the burden lies upon the prosecution to prove that food of which the sample was collected was for human consumption. The relevant observations in paragraph 8 are as followed : "It is true that mens rea in the ordinary or usual sense of this term is not required for proving an offence defined by section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). It is enough if an article of adultered food is either manufactured for sale or stored, or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what was stored or sold was food'. It is enough if an article of adultered food is either manufactured for sale or stored, or sold or distributed in contravention of any provision of the Act or of any rule made thereunder. Nevertheless, the prosecution has to prove, beyond reasonable doubt, that what was stored or sold was food'. The charge was that the Til seeds sold were unfit for human consumption. This necessarily meant that it was part of the prosecution case that the Til seeds with which we are concerned were meant for human consumption". 58. The question for our determination is whether in the present case the prosecution has discharged this burden that is to say whether the prosecution has proved that the sample is covered by the Item in Rule A-21 of Appendix B, of Prevention of Food Adulteration Rules and is an edible variety of catechu. 59. In this connection Mr. Ganatra also invited my attention to the judgment of Justice Shah delivered on (15-6-1977 in Criminal Appeal No. 667 of 1977)26. The Food Inspector visited the shop of the accused and demanded Bajra-Ata from a cloth bag containing 100 kgs. The report showed the Bajra contained infested grains. The defence was that the particular quality was being sold as cattle-food and was not meant for consumption. After taking the sample, the bag from which the sample was so taken was sealed and allowed to be kept in the shop. There was a controversy whether the writing "cattle-food" appearing on that bag as kept in sealed condition by the Food Inspector was written subsequently or whether it existed even at the time the sample was taken. If it was introduced later on, the accused could not take the benefit of the description, whereas if the words were written even before the sample was taken, there was a clear cut representation on behalf of the sender that the article was not food for human consumption but was cattle-food. In this context, it has been observed that it must be held that the prosecution had not been able to prove beyond reasonable doubt that any quantity of Bajri was sold for the purpose of human consumption. Thus, burden was taken to lie on the prosecution and on facts the same was held as not discharged. 60. In this context, it has been observed that it must be held that the prosecution had not been able to prove beyond reasonable doubt that any quantity of Bajri was sold for the purpose of human consumption. Thus, burden was taken to lie on the prosecution and on facts the same was held as not discharged. 60. My attention was also invited to a decision of Jammu and Kashmir High Court in (Municipality, Jammu v. Balmukund and others)27, 1977 F.A.J. 249 (J. K.) where the Division Bench of Jammu and Kashmir High Court was concerned with sarson oil sold to the Food Inspector. It was found to be adultered by the Public Analyst and Director Central Food Laboratory, Calcutta, but the same was sold from a tin marked 'not fit for human consumption'. In this context, it was held that the accused did not make any sale to the Food Inspector and in the absence of such a sale the accused cannot be held guilty of an offence relating to adulteration of food under the Act. 61. Since in our case, the oral evidence of the Food Inspector speaking about the talk between him and the vendor, of the article being used by person dealing in betel leaves cannot be taken as true and since there is no other evidence to show that what was collected was the edible variety of Catechu, the prosecution could not be said to have discharged the burden of proving that the article purchased was an article of food covered by Rule A-21, of the Prevention of Food Adulteration Rules. 62. By way of a second limb of this argument, Mr. Ganatra submitted that the charge framed in this case is not correct. It has result in prejudice to the accused and that no specific questions were asked to the accused in his examination under section 342 of the Code of Criminal Procedure, highlighting the point that he was proceeded against for adulteration of an article of food. That submission also has to be upheld. Exhibit 19 is the charge framed by the learned Magistrate, in this case. It recites that the accused on 4-12-1973 at about 1.15 p.m. in his shop kept for sale Catechu (katha) which was adulterated and thereby committed offence under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act. That submission also has to be upheld. Exhibit 19 is the charge framed by the learned Magistrate, in this case. It recites that the accused on 4-12-1973 at about 1.15 p.m. in his shop kept for sale Catechu (katha) which was adulterated and thereby committed offence under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act. A bare look at the charge is sufficient to show that it is not framed in relation to edible variety of Catechu, Exhibit 6 is the Form No. VI relating to the sample of foods specified in it as having been taken for analysis. It shows that katha was taken from the open tin container. There are no words to indicate that it was edible katha. Exhibit 7 is the receipt for the amount paid while purchasing the commodity described as katha. There is nothing to indicate that it was the edible variety. Panchanama Exhibit 9 also refers to the sample katha taken by the Food Inspector but the katha is not qualified to show it to be edible variety. If we go to the statement of the accused taken by the learned Magistrate, questions are asked in terms of Catechu purchased by Acharya from the tin without specifying that it was edible Catechu. There is nothing to show that the trial was in respect of edible Catechu or that the accused was asked to give explanation in connection with adulterated food, used for human consumption. 63. In this connection, we can make a reference to (Mohamed Ismail v. State of Maharashtra)28, 1976 Mh.L.J. 613. The accused was prosecuted on a charge framed on the basis of the report of the Public Analyst. After the examination of the Food Inspector the accused exercised his right to send the sample to the Central Food Laboratory. When the earlier adulteration certified by the Public Analyst was of the one nature and when the adulteration certified by the Central Food Laboratory was of a different nature but where the Magistrate had proceeded with the case on the charge of adulteration as indicated by the Public Analyst, it is said that in the absence of amendment of the charge conviction is illegal. The ratio appears to be clear that the accused was put on his alert to answer the charge of one nature but the report of the Public Analyst having been substituted by the certificate of the Central Food Laboratory, that charge was without any basis and the adulteration as found in the substituted report not being the subject-matter of the charge and no specific questions have been put to accused while examining him under section 342 of the Code of Criminal Procedure, he had not opportunity to meet that case, so that there could be no conviction. 64. A useful reference could be made in this connection to the decision in (Bhim Sen v. State of Punjab)29, 1976 Cri.L.J. 395 : A.I.R. 1976 S.C. 281. There the Supreme Court was concerned with the sample of 'Aerated Water'. The report of the Public Analyst called it the adulterated on the ground of existence of 0.38 per cent sacrene. The sample came to be sent to the Central Food Laboratory which did not find the adulteration as stated by the Public Analyst but the sample was found adulterated because it contained non-permitted coal tar dye. The entire trial proceeded on the basis of adulteration being due to sacrene. In the Supreme Court for the first time it was argued that since the sample contained non-permitted coal tar dye, it was adulterated and the appellant was rightly convicted. In repelling that argument the observations are :- "Before we part with this case, we must refer to one other contention urged on behalf of the respondent in a desperate attempt to sustain his conviction. That contention was that according to the certificate of the Director, Central Food Laboratory, which superseded the report of the Public Analyst, the sample of 'Aerated Water' sold by the appellant contained non-permitted coal tar dye and consequently it was adulterated and the appellant was rightly convicted for selling it. But the short answer to this contention is that it did not form the subject matter of the charge against the appellant nor was it put to him in his examination under section 342 of the Code of Criminal Procedure and it is, therefore not open to the State to urge this ground for the first time at this stage in order to support the conviction. 65. 65. These observations would show the importance of framing the correct charge and giving an opportunity to the accused to meet the ingredients of that charge. Both are essential. In our case neither the charge speaks of the sample taken, being of edible katha nor is any question put to the accused showing that he had sold edible katha which was found adulterated. Consequently the charge was defective and the trial did not afford him an opportunity to explain the elements necessary for proving the adulteration. Hence also the acquittal will have to be maintained. 66. Another point urged on behalf of the respondent by Mr. Ganatra was that the quantity taken for purposes of analysis was insufficient. The Food Inspector collected 600 gms. of Catechu, so that 200 gms. out of it came to be sent to the Public Analyst. Assuming that the Catechu collected was an edible article, unless requirements of Rule 22 are satisfied the report given by the Public Analyst could not be proper basis for conviction. The rule gives a list of various articles of food and specifies the quantity of each to be sent to the Public Analyst. At the relevant time Item No. 23 was the residuary article relating to "Foods (not specified)". It appears that the collected sample came to be sent under this Item so that 200 gms. was a sufficient sample for analysis. 67. Mr. Ganatra however, urges that the item applicable to the present case would be Item No. 14, which relates to 'prepared food' where the quantity to be sent to the Public Analyst is 500 gms. There is no dispute that in case sufficient quantity is not sent, the accused will be entitled to an acquittal. The ratio of the decision in (Rajatdas v. State of Maharashtra)30, A.I.R. 1975 S.C. 189 is that, if there is no requisite quantity for analysis, there is non-compliance with the rule and it is not only the infraction of the provisions but also results in injustice. In support of the argument that the sample collected was of prepared food. Mr. Ganatra argues that Catechu in order to be in edible form is required to be extracted and prepared as seen from Encyclopaedia Britannica Vol. In support of the argument that the sample collected was of prepared food. Mr. Ganatra argues that Catechu in order to be in edible form is required to be extracted and prepared as seen from Encyclopaedia Britannica Vol. II page 637 and Wealth of India page 9 (both cited supra) and is also obvious from the definition contained in Rule A-21 of Appendix B of the Rules, it is not obtainable in the form in which it has found in the shop. It is a prepared article and it is an article of food, therefore, according to him, it falls under the category 'prepared food', I suppose Mr. Ganatra is wholly wrong in this approach. If we have a look at the different Items in Rule 22 providing what approximate quantity is to be supplied to the Public Analyst, the first five Items relate to milk and milk products. Next comes the list comprising oils, tea, flour, sugar etc. Thereafter, appears the item 'prepared food' before passing on to carbonated water, Vanaspati, spices, fruit and vegetable products, pulses, cereals etc. This would indicate that item prepared food perhaps applies mainly to food prepared without the use of the articles listed earlier. Apart from it because some preparation or some process is involved in making the item if it is to be called 'prepared food' we would be giving a far protracted meaning to the word 'food' used in Item No. 14. To my mind, it is to be understood by looking to the context in a restricted manner restricting it to food prepared for satieting hunger. Tea, butter, Khoa and vegetable products and also prepared food as for the test applied by Mr. Ganatra. They are listed separately. Obviously, therefore, item 'prepared food' contemplates a different type of preparation possibly something like roasting, cooking, etc. which would be normally done in kitchen and which may also be available as a timed product. If mere extracting or undergoing some operations, simple or chemical is to be looked upon as satisfying the test of preparation of an article of food, even Saffron, Chilly Powder, Turmeric Powder which are listed separately could be looked upon as prepared food because it is prepared from something and is an item of food. If mere extracting or undergoing some operations, simple or chemical is to be looked upon as satisfying the test of preparation of an article of food, even Saffron, Chilly Powder, Turmeric Powder which are listed separately could be looked upon as prepared food because it is prepared from something and is an item of food. That would be deviating too much from the natural meaning of the word 'food' as appears to have been used under the caption "prepared food". I suppose this inference is strengthened by the approximate quantity to be sent to the Public Analyst. In case of prepared food it is 500 gms., unlike in other items where something between 125 gms. to 250 gms. is to be sent barring also larger items such as Vanaspati, carbonated water, ice-cream where also larger quantity is to be sent for analysis. This in my opinion suggests that 'prepared food' is contemplated as a large Item by the Act. Consequently I cannot pursuade myself to hold that in case, edible Catechu was sent, it was sent in insufficient quantity. 68. The next objection of Mr. Ganatra relates to the manner of carrying on the tests. According to him, the report of the Public Analyst does not show that the tests necessary to be applied, were applied by the Public Analyst. With a view to explain this argument further my attention was invited to Rule A-21, according to which Cateche (edible) ought to be free from infestation, sand, earth or other dirt and shall conform to the following standards :--- (a) 5 ml. of 1 per cent aqueous solution, and Order 1 per cent solution of ferric ammonium sulphate, give a dark green colour, which on the addition of sodium hydroxide solution shall change to purple. (b) When dried to constant weight at 1000C it shall not lose more than 12 per cent by weight. (c) Water insoluble residue (dried at 1000C) shall not be more than 25 per cent by weight. (d) Alcohol insoluble residue in 90 per cent alcohol dried at 1000C-Not more than 30 cent by weight. (e) Total ash on dry basis-Not more than 8 per cent by weight. (Water insoluable matter shall be determined by boiling water). (f) Ash insoluable in HCL-Not more than 0.5 per cent on dry weight basis. 69. Now Item (b) as quoted above spells of constant weight at 1000C. (e) Total ash on dry basis-Not more than 8 per cent by weight. (Water insoluable matter shall be determined by boiling water). (f) Ash insoluable in HCL-Not more than 0.5 per cent on dry weight basis. 69. Now Item (b) as quoted above spells of constant weight at 1000C. Similarly Item (c) speaks of insoluble residue at 1000C. In Item (d) in order to find out the alcohol insoluble residue, the test has to be carried out in 90 per cent alcohol dried to 1000C. Similarly for Item (e) the total ash is to be found out by weight on dry basis. Item (f) speaks of insoluble ash determined on dry weight basis. Now although in the report Exhibit 15, total ash, as well as, ash insoluble in HCL is shown to be more than the standard laid down and although water insoluble residue as well as alcohol insoluble residue, is shown more than the maximum standard, Exhibit 15 is silent whether for determining those, ingredients tests were carried out as provided in Rule A-21 that is to say, whether the tests in (e) and (f) were done on dry basis and whether the other tests were done with 1000C temperature and as for as Item (d) is concerned, taking the solution at 90 per cent alcohol. I am asked to contrast Rule A-04, where tests for determining the standard of Asafoetida are laid down. If we look to the heading compounded Asafoetida, Clause (g) gives the maximum total ash content. Similarly, Clause (h) prescribes the maximum ash insoluble in dilute HCL. It is worthwhile noticing that the words indicating dry basis are absent. When they are present in Rule A-21, it is said that the report Exhibit 15 should have made a specific reference to the tests having been carried out in that manner. The report is silent on that aspect. As per sub-clause (i) of Rule A-04 the alcoholic extract is to be estimated with 90 per cent alcohol. In Rule A-21(d) alcohol insoluble residue is to found in 90 per cent alcohol but it is super added to read 'dried at 1000C. This is thus some different procedure and we have no data available from the report of the Public Analyst whether this procedure was strictly followed. In Rule A-21(d) alcohol insoluble residue is to found in 90 per cent alcohol but it is super added to read 'dried at 1000C. This is thus some different procedure and we have no data available from the report of the Public Analyst whether this procedure was strictly followed. It is, therefore, argued that as long as there is no satisfactory evidence on that aspect of the matter, it cannot be said that the report on which the conviction is based is the proper report. 70. Mr. Ganatra in this connection relied upon a ruling given by Justice Kamat in (Karsandos G. Ravaliya v. State of Maharashtra)31, 1975 U.C.R. (Bom.) 88. The article in question was Asafoetida. As per Rule A-04, compounded Asafoetida shall not contain among other things less than 5 per cent alcoholic extract (with 90 per cent of alcohol) as estimated by the U.S.P. 1936 method. It was however, argued that the report of the Public Analyst did not show that the article which was sent for analysis was examined with 90 per cent of alcohol as estimated by the U.S.P. 1936 method. It merely stated that the alcoholic extract was found 3.32 percent and, therefore, it did not conform to the standard of compound Asafoetida. The learned Judge came to the conclusion that this result by itself would not be sufficient to show that the article which was sent to the Public Analyst, did not conform to the standards prescribed under the rules. It is said that it cannot be assumed that in coming to that conclusion, the Public Analyst had necessarily adopted the mode or tests prescribed under the rules. The above observations would apply mutatis mutandis to our case and here it has to be concluded that there is no satisfactory proof of having observed all the requirements of the tests as contained in Rule A-21 of the Rules in giving the result embodied in the report Exhibit 15. If that is so, that cannot form the basis for conviction. On this ground also the respondent is entitled to acquittal. 71. In the result, the State must fail, there are a number of cogent reasons as indicate above for upholding the order of acquittal. Hence the following order is passed :--- 72. Appeal is dismissed. -----