JUDGMENT - C.T. DIGHE, J.:---This is an appeal by the State against the order of acquittal, dated 31st December, 1975, passed by the Judicial Magistrate, First Class, II Court Thane, acquitting the two respondents of the charge under section 7(i) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. According to the case for the prosecution, the Food Inspector D.G. Gangavani with the help of another Food Inspector and a panch visited the shop of M/s. Govindram Mohanlal Vaishnav, situated in Muslim Jamat Building at Bhyandar, on 29-5-1973. The first respondent was present as a salesman, the second respondent is stated to be the proprietor of the shop. It was a grocery shop. Among the many articles sold, there was sweet oil kept in a tin. It measured 15 Kgs. It was in loose condition kept in a tin box. The complainant Food Inspector took a sample of 375 gms. of such sweet oil from that tin box, paying Rs. 2.80 for it. He put 125 gms. of sweet oil in each of the three bottles, and the bottles were corked and seals were put on them, under his signatures in the presence of the panchas. He gave one bottle to accused No. 1 Mohanlal, another such bottle was sent to the Public Analyst, Poona and the third bottle was retained by him. When the report from the Public Analyst was received, the ingredients found in the sample of the sweet oil came to be noted therein and the Public Analyst expressed his opinion that the sample was adulterated, as falling under section 2(i)(a) and Rule 44(e) of the Prevention of Food Adulteration Rules, 1955. Reference to Rule 44(e) would show that the sample was a mixture of two oils. 2. At the time of the trial, the panch turned hostite. Food Inspector Gangavani alone gave evidence producing the necessary documents. Reference to Rule 44(e) would show that the sample was a mixture of two oils. 2. At the time of the trial, the panch turned hostite. Food Inspector Gangavani alone gave evidence producing the necessary documents. Accepting the argument that there was a breach of Rules 17 and 18 inasmuch as the sample and the specimen seal together with the copy of the memorandum were not sent separately and accepting also the argument that the quantity sent to the Public Analyst does not conform with any of the items listed in Rule A. 17 of the P.F.A. Rules in Appendix B, so that the sample of 125 grams sent for analysis did not conform with Rule 22 of the P.F.A. Rules, the learned Magistrate, acquitted the respondents. 3. The State had come in appeal against that order of acquittal. There are a number of points which could be considered in favour of the respondents, so that the appeal of the State cannot at all be accepted. 4. If we look at the deposition given by the Food Inspector Gangavani, it will show that he purchased 375 grams of sweet oil. He does say in his examination-in-chief that he divided it in three equal parts by actual measurement, each part was of 125 grams. But in the cross-examination he has stated : "I purchased 125 grams of sweet oil from that shop in one bottle and again similarly I took 125 grams of sweet oil in two other empty bottless. I had not firstly taken 375 gms. of sweet oil in one container and then I had not divided it in 3 equal parts. I put empty bottles on balance and weighed it and put those weights on another balance and then I took 125 grams of oil in each 3 bottles by pouring oil from tin by another container." 5. It will thus, be apparent that as a matter of fact, there were three samples in three bottles of 125 grams each though collected from the larger tin containing 15 Kgs. 6. Mr. Agarwal, the learned Advocate, appearing for the respondents relied upon the section 11(1)(b) of the P.F.A. Act and says that it was incumbent upon the Food Inspector to take a whole sample of 375 gms. of sweet oil and then divide the sample into three equal parts and not collect each part from a common container. 6. Mr. Agarwal, the learned Advocate, appearing for the respondents relied upon the section 11(1)(b) of the P.F.A. Act and says that it was incumbent upon the Food Inspector to take a whole sample of 375 gms. of sweet oil and then divide the sample into three equal parts and not collect each part from a common container. He is supported by the decision reported in (All India Prevention of Food Adulteration)1, 1976(1) F.A.C. 69(M.P), when the High Court of Madhya Pradesh has set aside the conviction in a very similar case where oil was collected 125 grams each time separately and a bulk of 375 grams was not sub-divided into three parts. The relevant observations are to be found at the end of paragraph 4 and in paragraph 5, which are as follows: Para 4: "The purpose in making such a provision in the law is that each part of the sample should represent the whole bulk of the total sample obtained from the vendor". Para 5: "As per admission of the Food Inspector in the instant case when he took out of the container 125 grams of oil separately in each bottle it became a separate sample of oil and it cannot be said that the oil contained in each bottle represented the total oil 375 grams. as it was never mixed together. In an English decision in (Mason v. Chowdary)2, A.I.R. 1900(2) Q.B. 419, the question for the opinion of the Court was whether the division of six bottles of camphorated oil by the appellant Inspector under the Act as described was a sufficient compliance with the terms of section 14 of the Sale of Food and Drugs Act, 1875. That section required that the article purchased for purposes of analysis by a Public Analyst must be divided in three parts then and there and the each part has to be dealt within the manner prescribed in the section. In that case the Inspector under the Act went to the respondents shop and purchased six two penny bottles of camphorated oil. He divided the bottles into three lots of two bottles each, sealing each separate lot of two bottles in a separate bag. He then handed one of the sealed bags to the respondent, taking away the other two sealed bags with him, one of which he forwarded for analysis, and the remaining one he retained". He divided the bottles into three lots of two bottles each, sealing each separate lot of two bottles in a separate bag. He then handed one of the sealed bags to the respondent, taking away the other two sealed bags with him, one of which he forwarded for analysis, and the remaining one he retained". For these reasons it cannot be said that correct procedure for collecting the sample was followed by the Food Inspector. Hence the order of acquittal cannot be disturbed. 7. Mr. Agrawal also submitted that there was a breach of the provisions of Rule 9(j) of the P.F.A. Rules. The sample in this case, was collected on 29th May, 1973. It was sent to the Public Analyst on 31st May, 1973. He signed the report on 13th July, 1973 and the same was received by the complaint on 16th July 1973. Similarly, it is obvious that the complaint came to be filed nearly nine months afterwards on 11th April ,1974. From the receipt, together with the copy of the letter sent to the respondents, Exhibit 18 collectively, it is seen that the copy of the report was sent on 17th September, 1974 and was received by the respondents on 28th September, 1974. That is to say the report was received on 16th July, 1973, it came to be sent to the respondents on 17th September, 1974. Rule 9(j), as it stood before the amendment of 13th February, 1974, laid down that a copy of the report was to be sent by registered post as soon as the case was filed in the Court. Here the case was filed on 11th April, 1974, and yet for five months more no stops were taken in sending the copy of the report to the respondents. Considering that already nine months were lost in filing the complaint since the time of the receipt of the report, a period of further five months cannot at all be looked upon as in compliance with the provisions directing the despatch of the report as soon as possible. 8. Apart from this, the breach resulting from such action can well be illustrated by looking to the amendment, of 13th February, 1974, which lays down that a copy of the report is to be sent within 10 days of the receipt of the report. This would highlight the necessity of being quick in the matter. 8. Apart from this, the breach resulting from such action can well be illustrated by looking to the amendment, of 13th February, 1974, which lays down that a copy of the report is to be sent within 10 days of the receipt of the report. This would highlight the necessity of being quick in the matter. Thus, understanding the intention of the legislature the period of five months cannot at all be looked upon as an early compliance, contemplated by the unamended Rule 9(j) of the P.F.A. Rules. 9. In fact, as rightly urged by Mr. Agrawal, the matter assumes a different complexion. The rule was amended on 13th February, 1974, the complaint came to be filed two months thereafter. Taking the amendment as of procedure there ought to have been the compliance within 10 days from the date of the amendment. That has also not happened and hence there appears to be a grave breach of the provisions of Rule 9(j). Since this is a provision to protect the person from whom the sample was collected so that there should be no scope for any manipulation at the hands of the persons collecting the sample, compliance of Rule 9(j) ought to be looked upon as a compliance of a mandatory Rule. 10. In this connection Mr. Agarwal referred me to the ruling in (Bhola Nath Nayak v. The State and another)3, 1977 Cri.L.J. 154, where the Calcutta High Court has observed that the delay of 10 ½ months for the supply of the report to the defence. 11. The learned Judge below upheld the contention of the respondents that the report does not state which edible oils were mixed, in what proportion they were mixed and the report is not clear to what standard tests the sample was subjected so as to come to the conclusion that the ingredients as noted in the report Exhibit 15, made it an adulterated sample of mixed oils. 12. To understand this objection, we must remain aware of the record which shows that what was sold was sweet oil, the receipt was in connection with sweet oil, the documents prepared were in respect of the sweet oil, so that sweet oil was sent to the Public Analyst. In the introductory part of Exhibit 15, it is clearly stated that the Public Analyst received a sample of sweet oil. In the introductory part of Exhibit 15, it is clearly stated that the Public Analyst received a sample of sweet oil. How the commodity sweet oil is nowhere mentioned in the Rules in Appendix B, which lays down the standards of quality. Rule A-17 relates to edible oils. As it stands at present, 18 varieties of oils are mentioned under that rule. Initially there were 12 varieties mentioned. At the time the offence was committed, there was a classification of 16 edible oils. Each variety from each class, has a separate name, such as, Cooking oil, Cotton Seeds oil, Groundnut oil etc. There is no variety of the name sweet oil. If by the word Sweet oil we are to understand an edible oil, then it was necessary on the part of the Public Analyst to prove what type of sweet oil, that is, edible oil, was demanded sold and represented to be the variety of oil. In its absence, it could lie in the month of the respondents to say that the commodity sold was sweet oil, of which no standard is laid down in the P.F.A. Rules and hence Rule A-17 or its classification would not be applicable. On this background it could be argued that while looking to Rule 22, the item applicable would not be Item No. 6 edible oil but would be the residuary article. "Food not specified", so that the sample of 125 grams sent to the Public Analyst as against the 200 grams necessary under the residuary articles was insufficient for examination. Relying upon the ruling Bhola Nath Nayak v. The State and another, it can be said that the analysis of inadequate quantity has resulted at once in non-compliance of the rule and injustice. 13. The best case for the prosecution could be that different ingredients are found noted in the report of the Public Analyst Exhibit 15, none of the varieties of the edible oils mentioned in Rule A-17 of Appendix B, is shown to be confirming with the ingredients found in Exhibit 15 and hence the conclusion could be that there is a mixture of two oils. This would have been good logic provided, edible oils had remained restricted to the 16 items noted in the Rules. As we know, earlier, only 12 items were mentioned. This would have been good logic provided, edible oils had remained restricted to the 16 items noted in the Rules. As we know, earlier, only 12 items were mentioned. At present there are 18 items and hence without any express material on record that there is no 19th variety of edible oil, it would not be permissible to conclude by reverse method of logic that since the sample does not confirm with any of the varieties noted in the P.F.A. Rules, it is an adulterated sample. The attack launched by the respondents, therefore, is not without substance and hence no conviction can be based on the report Exhibit 15. 14. Another attack on the report proceeds from the observations made by the Supreme Court in (Dhian Singh v. Municipal Board, Saharanpur and another)4, A.I.R. 1970 S.C. 318, where the Supreme Court has approved of the observations of the Allahabad High Court in (Nagar Mahapalika of Kanpur v. Sri Ram)5, A.I.R. 1964 All. 270, which are as follows : "That the report of the Public Analyst under section 13 of the Prevention of Food Adulteration Act, 1954, need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in section 2(i) of the Act." 15. In other words the data from which it can be inferred whether the article of food was or was not adulterated must be explicit. In the present case, we have the ingredients of the sample mentioned in Exhibit 15. As seen earlier, with what standard those ingredients came to be compared is not clear. There is therefore, no material in appreciating the opinion that the sample was a mixture of two oils. What was the basic component and what was the component mixed with it, cannot at all be gathered from the report as it stands. Hence also the report it infirm and no conviction could be based on it. 16. Lastly, breach of Rules 17 and 18 has been referred to. What was the basic component and what was the component mixed with it, cannot at all be gathered from the report as it stands. Hence also the report it infirm and no conviction could be based on it. 16. Lastly, breach of Rules 17 and 18 has been referred to. The learned Judge below relied upon the decision in (Laxmandas Doshi v. State of Maharashtra)6, 1975 F.A.J. 606, but the observations that the sample and the copy of the specimen seal and memorandum ought to be sent on two distinct occasions is no longer the requirement as decided by the Division Bench in (Enayat Ali Nazar Ali Bhori v. The State of Maharashtra)7, 78 Bom.L.R. 293. If the packages are separate, even if they are sent on one and the same occasion, that is enough compliance with the Rules. To that extent, the finding of the Court below cannot be upheld. 17. However, the deposition of the Food Inspector shows that as many as 8 samples were sent by him under the letter Exhibit 13, dated 29-5-1973. If that is so, there should have been eight distinct envelopes containing the relevant copies of Form No. VII, in respect of each of the sample and the specimen seal. The Food Inspector in his deposition speaks of the sending of the samples and separately sending of the envelopes. The report of the Public Analyst also speaks of his comparing the seals but the acknowledgment at Exhibit 13 speaks only of the receipt of 8 samples. It is silent regarding the receipt of any envelope. In the circumstances it is possible to look upon the contents in Exhibit 13 relating to the sending of Form No. VII and the specimen seal as mechanical in capable of distinctly showing the sending of 8 different copies of Forms No. VII. If that is so, there would be breach of Rule 18 of the P.F.A. Rules. The evidence in our case cannot therefore, be regarded as very clear and that would be another reason for maintaining the acquittal. The result, therefore, is that the said appeal fails on many grounds. Hence the order:--- 18. The appeal is dismissed. Bail-bonds cancelled. -----