JUDGMENT - C.T. DIGHE, J.:---This is an application in revision by the original accused against their conviction under section 7(a) read with section 16(1)(a)(i) with Rule 44(b) read with Rule 7(5) and section 16(1)(a)(2) of Prevention of Food Adulteration Act. Each of them was sentenced to suffer R.I. for six months and to pay a fine of Rs. 100/- and in default of payment of fine to suffer R.I. for two months. That sentence was confirmed in appeal by the Additional Sessions Judge, Aurangabad. 2. According to the case of the prosecution, 1st petitioner happened to be owner of Shri. Sham Dairy and the 2nd petitioner was a servant engaged by him. On September 26, 1976 at about 9 a.m., Food Inspector visited the shop and collected a sample of milk. The sample was divided in three parts and according to the Food Inspector panchanama was made. After observing the formalities prescribed by law, the sample was sent to the Public Analyst. The report of the Public Analyst, Exh. 23, shows the total solids was 10.7% milk fat was 4.6% and solids not fat was 5.1%. Below the tabulation the Public Analyst while giving his opinion says that the sample contains 32.2 added water and does not conform to the standards of Buffalo Milk. 3. Mr. Agarwal appearing on behalf of the accused makes out a case that there is breach of Rule 17 as much the certificate is defective and the offence could not be taken to be falling under section 2(i)(c) of the Prevention of Food Adulteration Act, but that it would be under section 2(i)(l) of that Act. If his first contention is accepted the conviction will have to be quashed. If the second contention is to be accepted, then it would be in the discretion of this Court to give appropriate punishment. 4. For proving the breach of Rule 17, the learned Advocate relies upon the evidence of Food Inspector Narayan Satwaji Narwane (P.W. 1). According to him after he made the sample in three parts, he gave one bottle to accused No. 2. He obtained the signature of accused No. 2, on form No. 6. He also obtained the bill. He then drew up the panchanama. He further says that out of the remaining two sample bottles, one bottle and Form No. 7 were forwarded to the Public Analyst, Aurangabad, for which receipt Exh. He obtained the signature of accused No. 2, on form No. 6. He also obtained the bill. He then drew up the panchanama. He further says that out of the remaining two sample bottles, one bottle and Form No. 7 were forwarded to the Public Analyst, Aurangabad, for which receipt Exh. 20 is produced. According to him, after half an hour, he handed over duplicate copy of Form No. 7 along with specimen impression of seal separately and he obtained receipt, Exh. 21. In substance, therefore, he speaks of his forwarding sealed bottle together with original Form No. 7. He also speaks of his separately sending a duplicate copy of Form No. 7, and specimen impression. However, Rule 17, requires that the sample bottle has to be sent to the Public Analyst in a sealed packet enclosed together with memorandum in Form No. 7 in an outer cover addressed to the Public Analyst. No where in his deposition, the Food Inspector has referred to his sending the memorandum in an outer cover. Question for consideration is whether when this formality is not complied with, it could be said that there is the mandatory Rule. 5. It is not disputed that Rule 7 is mandatory. This is the ratio of the decision in (Laxmandas Sarvottamdas Doshi v. The State of Maharashtra)1, 77 Bom.L.R. 408. 6. In (The State of Maharashtra v. Trilokchand Bhivraj Jain)2, 1978 U.C.R. (Bom.) 244. I was concerned with a similar point where the Food Inspector had not spoken of his sending original Form No. 7 in an outer cover in sealed packet. In that case, the Food Inspector in addition had not spoken of sending Form No. 7 but on the topic in discussion, I had come to the conclusion that then these formalities were necessary to be performed, it was incumbent upon the Food Inspector to speak about their observance. Simply because certain statements are found in the printed Form No. III prepared by the Public Analyst at the time of sending his report, no presumption could be drawn that in fact these formalities were complied with. My observations in this connection are as follows : "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. My observations in this connection are as follows : "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, for 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." 7. In fact, in this particular case, the material for basing such a presumption if it can be drawn is also defective. If one looks to the prescribed Form III at present it contains the words showing that there was an outer cover and there was a seal on it. The form which is used by the Public Analyst, Ex. 23, which is an old form does not contain such words. It is, therefore, not possible to gather even by reading this form that the Public Analyst had received the outer cover with the seal on it as required by the rule. To that extent, there is no basis for drawing the presumption also. If this is so, there is breach of Rule 17 and the result will be that the accused are entitled to an acquittal. 8. In view of it, the other point should be cursorily looked into. According to Mr. Agarwal, the Public Analyst has only given an opinion that the sample contained 32.2% added water and hence the sample did not conform with the Prevention of Food Adulteration Rules. He high lights the position that in the tabulation where he has to declare the result, the Public Analyst has not said anything about the water contents. The analysis speaks only of milk fat, solids not fat and total solids. It is, therefore, said that the opinion portion which is not based on the result of analysis or statement of that analysis cannot be looked into to hold that water was added to milk. According to Mr. Agarwal, it is the function of the Court to find out which section of the Prevention of Food Adulteration Act, applies and that has to be done by looking to the statements of analysis incorporated in the tabulated form. According to Mr. Agarwal, it is the function of the Court to find out which section of the Prevention of Food Adulteration Act, applies and that has to be done by looking to the statements of analysis incorporated in the tabulated form. If this line of reasoning is accepted, there would be no material to hold that water was therefore, nothing to show injury to the health and obviously the offence would not be covered by section 2(i)(c) but would be covered by section 2(i)(l) so that the Court would be free to consider the circumstances on record to give the lenient punishment. 9. In order to show that the opinion portion in the report of the Public Analyst is not binding, the learned Counsel relied upon the judgment of Justice, Naik, delivered in (Naji Rai Chheda v. The State of Maharashtra)3, Cri. Rev. Appl. No. 225/1977, dt. 14-3-78, the relevant observations are, "It is true that the Public Analyst has opined that the sample is adulterated under section 2(i)(a) read with Rule 44(e), but then what is admissible is not his opinion but the date furnished by him. There is nothing in the date furnished by him to show that it is a case of breach of Rule 45(e)". In view of these observations, Mr. Agarwal would be able to make good his point. He also relied upon the unreported cases of 1977, case No. 597 where Justice Vaidya while dealing with the question whether mixture of gram dal and Vatan dal was proved, referred to the relied upon the absence in the Public Analysts report, showing in what proportion the two commodities were mixed and has remarked that in its absence, the Court cannot surrender its judgment merely to the opinion of a Chief Chemist. Mr. Agarwal has further relied upon the judgment of Justice Naik in (Criminal Appeal No. 897 of 1975)4, which was a similar case where 44.4% water was alleged to have been added to milk. In concluding that it is not an offence under section 2(i)(c), the learned Judge observed as follows :---- "It is true that the charge is framed under section 16(1)(a)(i) read with section 2(i)(1) of the Prevention of Food Adulteration Act. But I really fail to see how the addition of water by 44.1% could be said to be an offence under section 2(i)(c). But I really fail to see how the addition of water by 44.1% could be said to be an offence under section 2(i)(c). It is clearly a case of adulteration under section 2(i)(1) and, therefore, the proviso to section 16 is attracted." 10. In view of these judgments, it could be said that the offence even if proved, would have been held under section 2(i)(1) of the Food Adulteration Act and a lenient sentence could have been given. Circumstances relied upon are that both accused are poor persons. Accused No. 1 is a chronic patient of Heart and accused No. 2 is only an employee of accused No. 1. It is said that they had already undergone about 15 days sentence. These circumstances could have been taken into consideration for giving a lenient sentence. However, since I have come to the conclusion that Rule 17 is not complied with, I pass the following order : 11. The Rule is made absolute. The accused are not found guilty with the offence with which they are charged. They are set at liberty. Bail bonds shall stand cancelled. Fine if paid to be refunded. -----