JUDGMENT M.M. Gupta, J. - This appeal has been filed by Nagar Swasthya Adhikari, Agra against the acquittal of Babu Khan respondent under section 7 read with section 16 of the Prevention of Food Adulteration Act. 2. The prosecution case, as it emerges from the record, is that on 14th June, 1972 at about 8 P.M. in Hariom Gali Rauki Mandi within the police circle of Shahganj and limits of Nagar Mahapalika, Agra Shri M.P. Jain, Food Inspector, found the respondent selling milk in a balti which had no label. The Food Inspector Shri M.P. Jain purchased 660 millilitres of milk from respondent Babu Khan and paid him its price of 75 paise. The milk was divided into three parts and each one of these parts were sealed in separate containers. One of the samples was sent to the Public Analyst for analysis of its constituents. The other was retained by the Nagar Swasthya Adhikari while the third bottle was handed over to the respondent. The Public Analyst reported that the sample of the milk was without label and was in a condition fit for analysis. He had found that the sample contained 3.4% fat and non-fatty solids 6.7%. He was of the opinion that the sample was deficient in fat contents by 43% and was also deficient in non-fatty solids. No change had taken place in the constituents which would have interfered with the analysis. The sample was judged on the basis of statutory conditions of buffalo's milk. It may be stated here that although the Public Analyst judged the sample of the milk according to the standard provided for buffalo milk but it was also deficient even if we treat it as cow's milk according to the percentage of fat and non-fatty solids prescribed under the Prevention of Food Adulteration Rules. 3. The respondent asserted that he was selling cow's milk. He had purchased it for his child. He denied that any notice as required by the Prevention of Food Adulteration Act or its rules was not given to him. The sample was forcibly taken from him. No price was paid. His thumb impression was forcibly taken. He also denied that any formalin was added for preserving the milk in his presence. He denied that any notice as required by the Prevention of Food Adulteration Act or its rules was not given to him. The sample was forcibly taken from him. No price was paid. His thumb impression was forcibly taken. He also denied that any formalin was added for preserving the milk in his presence. At the trial the prosecution case was supported by P.W. 1 Mahendra Prakash Jain, Food Inspector, P.W. 2 Suraj Bal Ram Malik and Chetan Das P.W. 4. Out of these witnesses Chetan Das P.W. 4 did not support the prosecution case. P.W 3 Mahesh Chandra is a formal witness, a clerk in the office of the Nagar Mahapalika, who proved that the respondent had a licence for sale of milk between 22nd August, 1972 and 31st March, 1973. Respondent had also examined one Bedi Lal in his defence. The learned Magistrate who tried the respondent came to the conclusion that the prosecution had failed to prove that formalin w?rs added to the sample as required by Rule 20 or Rule 21. Since the observance of Rule 21 was mandatory he was of the opinion that the conviction could not be sustained. He accordingly acquitted the respondent. 4. The learned counsel for the Nagar Swasthya Adhikari has assailed the findings of the learned Magistrate and has claimed that he was not justified in acquitting the respondent. Shri M.P. Jain the Food Inspector has admitted in the course of his statement on oath that he did not mention in the label quantity of formalin added by him to the sample. The report of the Public Analyst Ex. Ka 5 mentions that the sample of milk was without label. It is, therefore, obvious that from the sample that was sent to the Public Analyst it could not be known that any quantity of formalin was added to the sample. The Food Inspector Shri Jain had, however, asserted in his statement on oath that he had added 18 drops of formalin to the sample as preservative but this statement has not been relied upon by the learned Magistrate and I do not see any reason to differ from his conclusion. The Food Inspector Shri Jain had, however, asserted in his statement on oath that he had added 18 drops of formalin to the sample as preservative but this statement has not been relied upon by the learned Magistrate and I do not see any reason to differ from his conclusion. If the Food Inspector had added formalin to the sample in compliance of the provisions of Rule 21 of the Prevention of Food Adulteration Rules there is no reason why he would not have mentioned this fact in the label which should have been attached to the bottle. He did not even attach any such label to the sample bottle. The Public Analyst has, however, reported that the sample was in a condition fit for analysis. The learned counsel for the Nagar Swasthya Adhikari has, therefore, contended that if the sample was in a condition fit for analysis adding or not adding of formalin to the sample in compliance of the provisions of rule 21 would be immaterial. For this reason the learned Magistrate was wholly unjustified in acquitting the respondent. Further, if the respondent was dissatisfied with the report of the Public Analyst it was open to him to have sent the sample in his possession to the Director, Central Food Laboratory, for further analysis and in that case his report would have been final and would have superseded the report of the Public Analyst. Rule 20 requires that in case of samples of milk, chaina, cream, ice cream, candy, dahi, khoa and gur 40% formalin that is to say liquid containing about 40% of formaldehyde in aqueous solution in the proportion of .01 ml. for 25 ml. or 25 grams would be added. Rule 21 requires that whenever preservative is added to a sample the nature and quantity of the preservative added shall be clearly noted on the label to be affixed to the container. Rule 20 clearly requires the adding of preservative in a particular quantity but it does not give the option to the Food Inspector to do away completely with the adding of the preservative. This rule may be directory to this extent that a small deviation in adding the preservative may not matter if the sample is found fit for analysis but if no preservative is added it would be difficult to rely on the report of the Public Analyst. This rule may be directory to this extent that a small deviation in adding the preservative may not matter if the sample is found fit for analysis but if no preservative is added it would be difficult to rely on the report of the Public Analyst. So far as rule 21 is concerned it appears to be mandatory and it requires the Food Inspector to note down on the label of the sample the nature and quantity of the preservative added. Nothing of these particulars in the sample aids the Public Analyst about knowing the condition of the preservative. In Ganga Saran v. State, 1979 (II) FAC 42 it was held "Under this rule it is imperative on the part of the person taking the sample that if he adds any preservative to it he must clearly note on the label to be affixed to the container the nature and quantity of the preservative." 5. In the instant case the Public Analyst had reported that no change had taken place in the constituents but in view of the non-observance of Rule 21 which is mandatory in character the conviction cannot be upheld. The same view was taken by our High Court in Babboo v. State 1973 FAC 40. It was held that where the prosecution failed to establish that the necessary preservative was added to the sample it could not be said as to what may have happened to the sample by the time it was examined by the Public Analyst and no reliance on the result of the analysis by the Public Analyst can be placed for sustaining the conviction, There are two direct authorities on the question involved in this case. The learned counsel for the appellant has, however, cited Amar Singh v. State, 1979 (1) FAC 42 in which the learned Single Judge of our High Court had held that where no preservative has been added to the sample of Imarti but the Public Analyst certified fit for analysis his report should be accepted. The learned counsel for the appellant has, however, cited Amar Singh v. State, 1979 (1) FAC 42 in which the learned Single Judge of our High Court had held that where no preservative has been added to the sample of Imarti but the Public Analyst certified fit for analysis his report should be accepted. However, so far as this case is concerned it has no application to the facts of the present case as the learned counsel for the appellant has not been able to point out that under any rule framed under the Prevention of Food Adulteration Act any preservative is prescribed for being added to the sample of Imarti, This case, has therefore, no application to the facts of the present case. The other cases cited are of other High Courts and I do not think that in view of the views taken in the cases cited above they can apply to the facts of this case. The learned Magistrate was fully justified in acquitting the respondent. The appeal is therefore, dismissed.