Judgment - R.A. JAHAGIRDAR, J.:---The order of acquittal recorded by the learned Additional Chief Judicial Magistrate of Pune in Criminal Case No. 8337 of 1974 is challenged by the State in this appeal. 2. The respondent (hereinafter referred to as the accused) was prosecuted in that case for an offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. The accused is the Proprietor of a confectionery shop situated in Shukrawar Peth, Pune. On 28th November, 1973 the Food Inspector of Pune one Mr. S.B. Jadhav purchased from the accused 600 gms. of what has been described by the Food Inspector himself as Shrikhand Goli. It was at one stage asserted that they were purchased from a packet which bore the name "Mona Sweets". Two hundred grams of the commodity so purchased was sent to the Public Analyst who reported that it was adulterated because it contained 1.68% total ash and 1.38% ash insoluble in hydrochloric acid. According to the standard which appears to have been applied by the Public Analyst, total ash should not be more than 1.5% and ash insoluble in dilute hydrochloric acid should not be more than 0.2%. He gave the opinion that the sample analysed by him was adulterated within the meaning of section 2(i)(c) of the Prevention of Food Adulteration Act. 3. The learned trial Magistrate was of the view that Shrikhand Goli purchased from the accused were covered by Item No. 25 in Rule 22 which refers to hard boiled sugar confectionery among other things. The minimum quantity of sample of hard boiled sugar confectionery which, according to Rule 22, should be sent to the Public Analyst is 300 gms. In the instant case admittedly 200 gms. were sent to the Public Analyst. It may, however be noted that Item No. 25 in which hard boiled sugar confectionery is included was inserted in Rule 22 with effect from 23rd May, 1974. I have already mentioned above that the offence alleged against the accused took place on 28th November, 1973. The learned trial Magistrate, however, persuaded himself to hold that the insertion of Item No. 25 in Rule 22 should be looked upon with retrospective effect and if this is so, he said, the quantity sent to the Public Analyst was not what was to be sent. The learned trial Magistrate, however, persuaded himself to hold that the insertion of Item No. 25 in Rule 22 should be looked upon with retrospective effect and if this is so, he said, the quantity sent to the Public Analyst was not what was to be sent. Relying upon the judgment of the Supreme Court in (Rejaldas v. State of Maharashtra)1, A.I.R. 1975 S.C. 146, the learned trial Magistrate returned a verdict of not guilty. This he did by this judgment and order dated 23rd January, 1976. 4. This order of acquittal is now the subject matter of challenge in this appeal by the State which has been supported before me by the learned Public Prosecutor Mr. Gangakhedkar. Mr. Gangakhedkar criticised the approach of the learned trial Magistrate in applying the amended Rule 22 with retrospective effect. He contended that at the relevant time when the sample was taken the item of food collected from the accused was covered by foods not specified and the rule as it then stood required only 200 gms. to be sent to the Public Analyst. The learned trial Magistrate was, therefore, in error in taking the view which he did. If the order of acquittal could be based only on this reasoning, I would have no hesitation in accepting the contention of the learned Public Prosecutor. But after going through the oral as well as the documentary evidence in the case with the assistance of both the learned Public Prosecutor and Mr. Ganatra who appears for the accused, I find that it is impossible to convict the accused even if I were to sit as Court of first instance. 5. In the first place after going through the testimony of the Food Inspector Shivaji Bhairu Jadhav examined as P.W. 1, notice that there is no evidence at all which would disclose the compliance with the requirements of Rule 17 of the Prevention of Food Adulteration Rules. It has now been held by this Court that for the proper compliance with the requirements of Rule 17 the sample must be put in a separate outer cover along with the memorandum in Form VII and then the outer cover itself must be sealed. 6. This view taken by Dighe, J. in (Criminal Appeal No. 261 of 1976 decided on 4th August, 1977)2, has been consistently followed by me. 6. This view taken by Dighe, J. in (Criminal Appeal No. 261 of 1976 decided on 4th August, 1977)2, has been consistently followed by me. The learned Public Prosecutor was not, and indeed could not be, in a position to show that compliance with the requirement of Rule 17 as mentioned in the judgment of this Court has been made by the Food Inspector. This alone should be sufficient to dispose of the appeal and to confirm the order of acquittal passed by the learned trial Magistrate. However, Mr. Ganatra has higher lighted certain irregularities in the analysis carried out by the Public Analyst in the instant case, and also that the order of acquittal could be supported on the ground that the item of food seized from the accused in the instant case was an item of prepared food. The item of prepared food did find its place in the unamended Rule 22 and Item No. 14. In that case 500 gms. was the quantity to be sent to the Public Analyst. In the present only 200 gms. have been sent. The quantity cannot be regarded by any stretch of imagination as a proper quantity of sample to be sent to the Public Analyst. 7. If, on the other hand, says Mr. Ganatra, the item taken from the accused is treated under the then Item No. 23, residuary article of food, them it must be identified as a particular item covered by one or the other of the Rules mentioned in Appendix B of the Rules. The Food Inspector himself has given some assistance in this regard by admitting in the very first sentence of his cross-examination (after charge) that the article Shrikhand Goli was a hard boiled confectionery. If we proceed on the basis that the item of food taken from the accused is hard boiled confectionery, then Mr. Ganatra points out that the analysis carried out by the Public Analyst is incorrect. Rule No. A.20.01 in Appendix B deals with hard boiled sugar confectionery. Among other things, that rule specifies that this item of hard boiled sugar confectionery shall conform to the following specification : (i) Ash, sulphated, per cent by weight ---- Not more than 1.5 per cent; (ii) Ash, insoluble in dilute hydrochloric acid per cent by weight ---- Not more than 0.2 per cent. Among other things, that rule specifies that this item of hard boiled sugar confectionery shall conform to the following specification : (i) Ash, sulphated, per cent by weight ---- Not more than 1.5 per cent; (ii) Ash, insoluble in dilute hydrochloric acid per cent by weight ---- Not more than 0.2 per cent. If we look at the report of the Public Analyst, we notice that he has found that total ash content in the sample analysed by him was 1.68 per cent. Mr. Ganatra says that there is no mention at all of total ash in the standard prescribed for hard boiled confectionery. What is mentioned is ash sulphated. There is almost a word of difference between total ash and sulphared ash. In support of his contention in this regard he invited my attention to the Pharmacopoeia of India, 1966 Edition. In Appendix D at page 947 of the volume, the procedure for determination of ash has been given. Paragraph A of Appendix D deals with the determination of total ash whereas Paragraph C of the same Appendix deals with the determination of sulphated ash. In the case of sulphated ash the sample after accurately weighing is moistended with sulphuric acid, then ignited gently, again moistened with sulphuric acid and after this reignited and boiled and weighted. The calculation of percentage of sulphated ash is made with reference to the air dried drug. Prima facie, therefore, the sulphated ash in any organic matter will be much less than the total ash. In the Chemical Analysis of Food, by David Pearson 7th Edition of 1976, Chapter II deals with, among other things the determination of ash consent. In the said Chapter also a clear distinction is pointed out between total ash water soluable, acid insoluble ash and sulphated ash. Indeed in this book it is mentioned that the determination of sulphated as involves moistening the ash with concentrated sulphuric acid and then igniting gently to constant weight. There is thus no difficulty in saying that the total ash is an article is different from the sulphated ash. Indeed in this book it is mentioned that the determination of sulphated as involves moistening the ash with concentrated sulphuric acid and then igniting gently to constant weight. There is thus no difficulty in saying that the total ash is an article is different from the sulphated ash. Apart from the authority of these two books to which I have made a reference, if the rules prescribe for the determination of sulphated ash and if this has not been done by the Public Analyst as his report itself shows, then no reliance can naturally be placed of it for deciding the culpability of a trader from whom a sample had been obtained. 8. Similarly on the question of the determination of ash insoluble in dilute hydrochloric acid, there is an infirmity in the report of the Public Analyst. I have already pointed above that the report of the Public Analyst mentions that ash insoluble in hydrochloric acid was 1.36% in the sample analysed by him in the instant case. Hydrochloric acid and diluted hydrochloric acid are two different things. It is true that in the opinion which is given at the end of the report, it is mentioned that ash insoluble in dilute hydrochloric acid did not conform to Rule A-25.01. In the absence, however, of a clear and specific mention that the test was carried out by reference to the dilute hydrochloric acid, his opinion cannot be of any assistance. Dilute hydrochloric acid itself, according to Mr. Ganatra, is known to be of a particular standard. Again Indian Pharmacopoeia mentions that dilute hydrochloric acid contains 10.0 per cent w/w of Hcl (limits 9.5 to 10.5) (see page 333). In the book by David Pearson referred to above, it has been mentioned that for finding out acid insolute ash, the ash is boiled with 25 ml. of dilute hydrochloric acid (10% w/w Hcl). Implicit in this is the fact that dilute hydrochloric acid itself contains 10% w/w Hcl. Unfortunately, the Public Analyst who performed the analysis of the sample in the instant case did not notice the requirements in accordance with which the analysis had to be carried out. The report of the Public Analyst, therefore, which merely given an opinion that the article was adulterated, cannot be taken into consideration for convicting the accused. 9. In the result, the appeal must fail and is dismissed. The report of the Public Analyst, therefore, which merely given an opinion that the article was adulterated, cannot be taken into consideration for convicting the accused. 9. In the result, the appeal must fail and is dismissed. The order of acquittal passed by the learned Additional Chief Judicial Magistrate, Pune, in Criminal Case No. 8337 of 1974 is confirmed. Bail bond of the accused shall stand cancelled. -----