Judgment :- 1. The accused, convicted and sentenced in a case charged under S.16 (1) (a) (i) read with S.2 (ix) (d) and 7 (ii) of the Prevention of Food Adulteration Act (Central Act 37 of 1954), for short the Act, is the revision petitioner. The prosecution case was that the black gram dhall exposed for sale by the petitioner was misbranded as stated in Ext. P-7 report of the Public Analyst who analysed the sample. 2. The counsel for the petitioner submitted that the courts below jumped into a hasty conclusion that the petitioner Was guilty of the offence, of misbranding punishable under S.7 (ii) of the Act. The submission of the counsel is that what led the Public Analyst to hold that the sample was mis-branded was that there was presence of talc with which the dhall was seen coated. It was also argued by him that there is nothing to show that talc is a colouring material or that its presence in article of food by itself would be injurious to health. He contended that even assuming that talc is treated as a foreign material, the content of the talc present in the sample analysed did not exceed what was permitted in terms of the standard prescribed in clause A. 18.06 of Appendix B to the Rules framed under the Act. 3. According to S.2 (ix) (d) of the Act an article of food shall be deemed to be misbranded if it is so covered, flavoured or coated, powdered or polished that the fact that it is damaged is concealed or it is given an appearance of better or of greater value than it really is. On the facts of the case it is pointed out by the counsel for the petitioner that in Ext. P-5 mahazar there is no allegation that the dhall but of which the sample was taken was coated with talc either to conceal any damage or to give an appearance of better or of greater value than it really was. In evidence pw.1 the Food Inspector stated that the dhall had a shining; but that is not, what, according to S.2 (ix) (d) constitutes misbranding. The complaint only quotes what has been stated in Ext. In evidence pw.1 the Food Inspector stated that the dhall had a shining; but that is not, what, according to S.2 (ix) (d) constitutes misbranding. The complaint only quotes what has been stated in Ext. P-7 report of the Public Analyst which reads as follows: "the said sample contains a coating of talc and is therefore misbranded as per S.2 (ix) (d) of the Prevention of Food Adulteration Act, 1954." 4. The argument of the counsel for the petitioner is that merely for the reason that the sample was found to have been coated with talc, it cannot be treated to have been misbranded; the definition itself indicates that to call it a case of misbranding something more than mere coating has to be alleged and proved. It was pointed out that to make it an offence, the coating should have been either for concealing the fact" that the article was damaged or for giving the article an appearance of better Or of a greater value than it really was. Neither in the complaint nor in the evidence of pw.1 nor even in Ext. P-7 report of the Analyst there was any mention that the; coating was for the purpose of concealing any damage or for giving the dhall an appearance of better or of greater value than it really was; thus the evidence adduced by the prosecution fell short of the requirement of the definition contained in S.2 (ix) (d) of the Act to constitute the. offence of misbranding. 5. The counsel for the respondent, Calicut Corporation, submitted that once the Public Analyst declared that the sample was misbranded as per S.2(ix)(d) of the Act, the court is bound to accept that position, without going behind the result declared in as much as under S.114(c) of the Indian Evidence Act the presumption is that official acts, have been regularly performed. Reliance was placed by him on the ruling of the Full Bench of this Court in State of Kerala v. Mammu Musaliar (1974 KLT. 792 FB.), Para.6 at page 799, wherein it Was held that it was not necessary for the Court to go behind the result declared by the analyst, enquiring into the correctness of the technical processes involved or the methods adopted during the course of the analysis by the analyst. 792 FB.), Para.6 at page 799, wherein it Was held that it was not necessary for the Court to go behind the result declared by the analyst, enquiring into the correctness of the technical processes involved or the methods adopted during the course of the analysis by the analyst. No doubt, it is not ordinarily necessary for the Court to go behind the certificate issued by the analyst in Form III in conformity with the requirements of S.13 and R.7; and that is true particularly with the technical processes involved or the methods adopted during the course of the analysis, In the present case the result of the analysis, or the data collected, is that the sample was coated with talc. The Court may accept that part of the report which declares that the analysis yielded the result that the dhall was found to have been coated with talc. This does not, however, mean that the Court is precluded from examining as to whether the opinion of the analyst that the sample was misbranded is correct or not. The Court has a right and also a duty to examine whether the opinion expressed by the analyst is borne out by the data on which it is purported to have been based. In this case the only data expressly relied on by the analyst in support of his opinion that the sample is misbranded is that it was found to have been coated with talc. We have already found that to constitute an offence of misbranding, something more than the mere coating with a foreign element is necessary. It has to be shown further that it was done either for the purpose of concealing any damage to the article or for giving the article an appearance of better or of greater value than it really was. The submission of the counsel for the respondent corporation is that the analyst has stated that there was misbranding as per S.2(ix)(d) of the Act, and that implies that the coating was done either for the purpose of concealing damage to the article or for giving an appearance of better or of a greater value than what it really was. The submission of the counsel for the respondent corporation is that the analyst has stated that there was misbranding as per S.2(ix)(d) of the Act, and that implies that the coating was done either for the purpose of concealing damage to the article or for giving an appearance of better or of a greater value than what it really was. In this case the prosecution has not informed the accused as to what, according to it, was the definite purpose with which the coating of the dhall was done', whether it was for concealing damage, if any, or forgiving the dhall an appearance of better or of greater value than it really was, which he was entitled to know while defending the case. This being the position, it has to be held that the opinion of the Public Analyst, leaving the Court to guess the definite purpose of coating the dhall with talc, contained in Ext. P-7 report, that the sample was misbranded cannot be treated as conclusive evidence of the offence as defined in S.2(ix)(d) of the Act. 6. One other contention raised by the counsel for the petitioner relates to non compliance with the mandatory provision contained in S.10(7) of the Act. It is submitted by the counsel that only two witnesses were examined, and out of them pw.1 was the Food Inspector and pw. 2 was the Sanitary Maistry subordinate to him. No independent person who witnessed the action taken by the Food Inspector was examined. The counsel for the respondent Corporation submitted that Ext. P-5 mahazar would go to show that it was signed not only by pws.1 and 2, but also by the accused and one I. Kuttayi. The counsel for the petitioner pointed out that the said I. Kuttayi was only a scribe of the mahazar, not a witness to the taking of the sample. The said Kuttayi was not examined in court; and if the prosecution had any pretention that he was a witness to the taking of the sample, no explanation has been offered as to why he was not cited and examined as a witness instead of resting content with the examination of pws. I and 2 who are officials of the department. I and 2 who are officials of the department. In as much as he had only written the mahazar without claiming to have witnessed the taking of the sample, it is doubtful whether even his examination in Court could have cured the defect of not calling one or more independent persons to witness the action taken by the Food Inspector in accordance with S.10(7) of the Act in its true spirit as explained by the Supreme Court in Ram Labhaya v. Delhi Municipality (AIR. 1974 SC. 789). I am, therefore, of the view that this prosecution is bad for non compliance with the mandatory provision contained in S.10(7) of the Act also. For the foregoing reasons the revision is allowed, the conviction and sentence passed by the trial court, confirmed by the appellate court, are set aside and the petitioner is acquitted. Amount, if any, paid towards fine shall be refunded to the petitioner. Allowed.