JUDGMENT - R.A. JAHAGIRDAR, J.:---The Food Inspector of the Municipal Council of Jalna launched a prosecution against the respondent No. 1 who will hereinafter be referred to as the accused for an offence punishable under section 7(i) read with section 16(1)(a) of the Prevention of Food Adulteration Act on the ground that he sold adulterated milk of Food Inspector on 10th February, 1973. The prosecution case was that the milk contained added water. According to the prosecution on the day in question the Food Inspector H.T Jadhav of Jalna Municipal Council went to the shop of the accused and when the accused was receiving milk from a milk supplier took a sample of that milk and after putting it in three separate clean and dry bottless added formaline in each of the bottle and after sealing them with the seal of the municipality sent one sample to the Public Analysts office at Aurangabad. It is alleged by the prosecution that the bottles were pasted with the labels bearing the signatures of the accused and the panchas. The bottles were tied with the twine and sealed. The report of the Public Analyst shows that the sample of milk sent to him contained 11.1% of added water and, therefore, it was adulterated within the meaning of section 2(i)(c) of the Prevention of Food Adulteration Act. On these allegations the accused was tried in Criminal case No. 799 of 1973 in the Court of the Judicial Magistrate, First Class at Jalna. In support of its case the prosecution examined Food Inspector himself (P.W. 1). Hanmantrao Tukaramji Jadhav and (P.W. 2), Sumant Narharrao Kulkarni an employee of the Jalna Municipality who was entrusted with the task of forwarding the samples taken to the office of the Public Analyst Aurangabad. The defence of the accused was that milk selling was not his business and he purchased the milk only for the purpose of preparing Khava and that sweetmeat prepared out of this Khava are sold in his shop. In support of his case the accused examined (D.W. 1), Sadashivrao Keshavrao Nagpurkar who is a Shop Inspector working with the same municipal council. He examined one Vaijanath Vithoba who according to the prosecution was selling milk on that day to the accused. In support of his case the accused examined (D.W. 1), Sadashivrao Keshavrao Nagpurkar who is a Shop Inspector working with the same municipal council. He examined one Vaijanath Vithoba who according to the prosecution was selling milk on that day to the accused. The latter however has not supported the defence case nor has he given any admissions which would favour the accused but it has come in the evidence of the Food Inspector himself that this Vaijanath was the person who sold milk to the accused on the relevant day. The learned trial Magistrate held that the prosecution proved that the complainant had purchased milk from the accused and that the prosecution also proved that the complainant had complied with the provisions of sections 10 and 7 of the Prevention of Food Adulteration Act. However, holding that there was no compliance with the mandatory provisions of Rules 17 and 18 of the Prevention of Food Adulteration Act, the learned trial Magistrate acquitted the accused of the offence with which he was charged. This he did by his judgment and order dated 30th January, 1975. The municipal council is aggrieved by this order of acquittal and has preferred this appeal which has been supported before me by Mr. R.M. Agarwal the learned Advocate by his arguments. Mr. Agarwal contended that the learned Advocate by his arguments. Mr. Agarwal contended that the learned trial Magistrate was in error in holding that there was no compliance with Rules 17 and 18 framed under the Prevention of Food Adulteration Act on the ground that the witness examined on behalf of the prosecution viz. (P.W. 2), Sumant Narharrao Kulkarni has not specifically mentioned that the sample bottle, memorandum form and the specimen impression of the seal were not delivered to the Public Analyst separately. Mr. Agarwal wanted to rely upon the report of the Public Analyst which is at Exh. 15 and contend that the report shows that the specimen impression of the seal which was fixed on the container of the sample had been sent separately by the Food Inspector. Mr. Mr. Agarwal wanted to rely upon the report of the Public Analyst which is at Exh. 15 and contend that the report shows that the specimen impression of the seal which was fixed on the container of the sample had been sent separately by the Food Inspector. Mr. Agarwal further desires to he resource to the provisions of section 114 of the Evidence Act and to contend that it is permissible for a Court to assume that official acts were done in regular way and if the report itself shows that specimen of the seal was sent separately then there is no reason why the contents of that report should not be acted upon. In fact, he went to the extent of contending that the contents of the Public Analyst should be presumed to be true unless contrary is established by the accused. The arguments of Mr. Agarwal have been couched in a very attractive terms but without legal warrant for the a Court to assume that official acts were done in regular way and if the report itself shows that specimen of the seal was sent separately then there is no reason why the contents of that report should not be acted upon. In fact, he went to the extent of contending that the contents of the Public Analyst should be presumed to be true unless contrary is established by the accused. The arguments of Mr. Agarwal have been couched in a very attractive terms but without legal warrant for the same. I must begin with the propositions which is a well established one that Rules 17 and 18 framed under the Prevention of Food Adulteration Act are mandatory. This High Court in (Laxmandas Sarvottamdas Doshi v. The State of Maharashtra)1, 77 Bom.L.R. 408. After thorough examination of the various authorities on the question has held that the provisions of Rules 17 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 persons in whose is to hands the sample as well as the specimen seal are put. The purpose behind Rule 18 is to prevent the possibility of tampering by third persons in whose is to 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 to be sent together but they must be sent separately so that the mischief of tampering with the entire sample by clanging the seal on the packet as well as the specimen seal sent in another packet is avoided. Mr. Agarwal accepted this proposition of law viz. that Rules 17 and 18 are mandatory. The correct procedure that must be followed under Rule 18 has been further explained by the Division Bench of this court in (Enayat Ali Nazar Ali Bhori v. The State of Maharashtra)2, 78 Bom.L.R. 293. Wherein it has been held that where the cover containing the sealed packet of the sample for analysis enclosed together with a memorandum in Form VII was sent along with another packet containing the memorandum and specimen of the seal with the same peon, there was no infraction of Rule 18 of the Prevention of Food Adulteration Rules. As long as the copy of the memorandum that was required to be sent under Rule 18 was not sent together, in the sense that all articles were not to be in the same packet or the same cover as the article referred to in Rule 17 and the memorandum which was required to be sent under Rule 18 was sent independently in a different cover, notwithstanding the fact that both are taken to the Analyst by the same peon, they must be said to have been sent independently of each other. The mere fact that the two packets were carried by the same peon would not seem that the material articles, namely, the samples and the memorandum on the one hand and the copy of the memorandum on the other are sent together. It is, therefore, permissible even under Rule 18 to send with the same person the memorandum of the specimen impression of the seal used to seal the packet but the memorandum and the specimen impression of the seal must be contained in two separate packets. They may be carried by the same person but should not be mixed together in the same packet. Mr. They may be carried by the same person but should not be mixed together in the same packet. Mr. Agarwal argued that there was compliance with Rule 18 as interpreted by the Division Bench ruling. I will point out while reviewing the evidence that in fact it is not so. (P. W. 1), Hanmantrao Tukaramji Jadhav examined on behalf of the prosecution mentions that on the day in question he visited the shop of the accused and collected 660 ml. of milk sample. After paying the price he divided the sample into three parts which were filled in equal quantities in dry and clear bottles. Formaline was added to each of the bottle. Thereafter the bottles were sealed with labels which were signed by him, panchas and the accused. Panchanama of taking of the sample was prepared and on that panchanama panchas signed before him. He mentions that one of the sample bottles was sent to the Public Analyst with the specimen seal and the memorandum form through the office. It is significant to note that he does not mention in the examination-in-chief itself that he sent the specimen seal and the memorandum separately. Thereafter he produced at Exh. 15 the report of the Public Analyst received by him. I was, therefore, unnecessary for the defence to cross-examine him on the question whether there was compliance with the provisions of Rule 18 because the witness himself does not depose that there was such compliance. P.W. 2 Sumkant Narharrao Kulkarni says that he was in charge of the work of keep samples given by the Food Inspector and to send them to the office of the Public Analyst. He mentioned that on 12th February, 1973 he had carried three more sample along with the sample collected from the accused Ramniklal. He also carried specimen seal and memorandum form to the office of the Public Analyst. He reached the bottles, memorandum forms along with specimen seals in the office of the Public Analyst. The seals of the samples were in tact when they reached the office of the Public Analyst. There were only two questions which were put to him in the cross-examination and in answers, which completely destroyed the prosecution case he says as follows : "I carried the sample bottles, memorandum forms and the specimen seals in a cloth bag. The seals of the samples were in tact when they reached the office of the Public Analyst. There were only two questions which were put to him in the cross-examination and in answers, which completely destroyed the prosecution case he says as follows : "I carried the sample bottles, memorandum forms and the specimen seals in a cloth bag. I gave all these articles in my visit to the office of the Public Analyst, at one time." In view of the total failure on the part of the Food Inspector to mention that he sent the sample, memorandum form and the specimen seal separately and in view of the clear-cut admission of the person who actually reached them to the office of the Public Analyst that they were sent together in a cloth bag, the recital contained in the printed report of the Public Analyst must be held incorrect if not deliberately false. In Exh. 15 which is the report of the Public Analyst allegedly analysing the sample sent by (P.W. 1) Jadhav, what is interesting to notice is that the words necessary to show compliance with Rule 18 have been put in quotation marks as follows: "The seal fixed on the container of the sample tallied with the specimen impression of the seal separately by the Food Inspector and sample was in a condition fit for analysis." I am not in a position to fathom the intention behind printing these words in quotation marks. It may be mentioned that prior to 1968 Form No. III in which the report of the Public Analyst had to be sent did not contain these particular words. By Government Resolution No. 1533 dated 8th July, 1968 these words have been added. In view of my clear finding given earlier that the memorandum and the specimen impression of the seal were not sent separately. I am convinced that this printed form of the Public Analyst has been signed mechanically and the recitals that they were sent separately is incorrect. I, therefore hold that there is a patent non-compliance with the mandatory requirement of Rule 18 and on that ground the prosecution must fail. Mr. Agarwal, however, relied upon an unreported judgment of the Supreme Court in (Criminal Appeal No. 29 of 1968 delivered on 2nd December, 1968)3, Criminal Appeal No. 29 of 1968 dated 2-12-68, S.C. (unreported). I, therefore hold that there is a patent non-compliance with the mandatory requirement of Rule 18 and on that ground the prosecution must fail. Mr. Agarwal, however, relied upon an unreported judgment of the Supreme Court in (Criminal Appeal No. 29 of 1968 delivered on 2nd December, 1968)3, Criminal Appeal No. 29 of 1968 dated 2-12-68, S.C. (unreported). For the purpose of persuading me to hold that despite what has been stated by the prosecution witnesses reliance can still be placed upon the recitals in the report of the Public Analyst. In that case the appellant before the Supreme Court had sold compounded asafoetida to the Food Inspector and the report of the Public Analyst showed that it was adulterated within the meaning of the Act. In that case the sample which was to be sent to the Public Analyst and the memorandum and specimen impression of the seal were entrusted according to the evidence of the Food Inspector to an officer who sent them by registered post. The trial Court had imposed a sentence of fine of Rs. 500/- on the appellants-accused. In the High Court it was contended on behalf of the accused that Rule 18 of the Prevention of Food Adulteration Rules, 1955 had not been complied with but this submission was not accepted by the High Court on the ground that the principle that official acts must be presumed to have been regularly performed must be applied to the facts of that case. Under Rule 187 Public Analyst has to compare a seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing sample for analysis. This view of the High Court has upheld by the Supreme Court. It is clear from the facts of that case memorandum and the specimen impression of the seal were sent separately to the Public Analyst. What was challenged in that case was that the Public Analyst had not mentioned in the report that he had compared the specimen impression of the seal with the one on the memorandum. It is probably the result of this judgment that Form No. III in which the report of the Public Analyst is to be submitted has been amended by the inclusion of the words which I have mentioned above. It is probably the result of this judgment that Form No. III in which the report of the Public Analyst is to be submitted has been amended by the inclusion of the words which I have mentioned above. In the present case we are not concerned with the question whether the Public Analyst compared the seal on the sample with the seal sent separately. It is established from the evidence in this case that the seal was not in fact sent separately. I do not see how the judgment of the Supreme Court can be of any assistance to Mr. Agarwal. Mr. Rajani appearing on behalf of the accused sought to support the order of acquittal on the further ground that the milk which was sold was not stored for selling. There is evidence according to Mr. Rajani that the milk which was being purchased by the accused from defence witness Vaijnath was for the purpose of covering into Khava and further converting into other sweetmeats for which he was running the shop. With that very object he invited my attention to the evidence of D.W. 1. Sadashivrao Keshavrao Nagpurkar who is serving as a shop Inspector with the Municipal Council of Jalna. This witness specifically mentioned that accused had a licence for the shop and his business is shown as Mithai and Khava . During all his visits he has seen the accused selling Mithai and Khava and nothing else. As already mentioned above, this witness is an employee of Jalna Municipal Council and there is no reason why he should not be believed on this question. I am inclined not only to accept the evidence of this witness but suspect the whole prosecution launched by the Food Inspector because he has shown unwarranted zeal in taking the milk sample from the shop of the accused though he saw that the milk was being sold to him by another person. In paragraph 7 in the cross-examination he has specifically mentioned that when he reached the shop and was to start taking steps Vaijanath came there and poured milk into the pot of the accused. He was to collect the sample before the coming of Vaijanath. He did not feel it necessary to restrain Vaijanath from pouring milk in that pot. There was no specific reason to collect the sample from the accused on that day. He was to collect the sample before the coming of Vaijanath. He did not feel it necessary to restrain Vaijanath from pouring milk in that pot. There was no specific reason to collect the sample from the accused on that day. Though this witness has seen the accused selling milk since 7-8 years for first time on this day he collected the sample from him which was sold in his presence. Now it has been held by the Supreme Court in (Municipal Corporation of Delhi v. Laxmi Nararin Tandon)4, as follows : "......If an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, converyer, deliverer, consignee, manufacturer or storer for sale such as is referred to in sub-sections (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated to validly launch prosecution thereon." If the accused was not engaged in the trade of selling milk and was engaged in selling milk products it was not open to the Food Inspector to take sample of milk and to launch a prosecution against him on that milk being found adulterated. On the evidence I hold that the accused was not selling milk but was engaged in the trade of selling milk products such as, Khava, Mithai Pedha, etc. Therefore, the order of acquittal passed by the learned trial Magistrate must be confirmed on this additional ground urged by Mr. Rajani. The order of acquittal is accordingly confirmed. The appeal is dismissed. -----