JUDGMENT - V.S. KOTWAL, J.:---The Food Inspector, one Shri Rane, attached to Bombay Municipal Corporation visited the retail grain grocery and provision shop belonging to the petitioner on June 4, 1975 at about 9.45 a.m. The shop is run in the name and style as Chhaya Stores, and is in Mazagaon area. This is a proprietary concern and is owned and run by the petitioner for which there is no dispute. At that time, a bag containing Tur Dal was lying in the shop and the Food Inspector desired to purchase certain quantity. On payment of requisite price, 750 grams of Tur Dal was purchased against payment of Rs. 2.25. A receipt to that effect was prepared and signed by the parties and this transaction was witnessed by an independent person Kalyanji who was taken specifically for that purpose. Further formalities were observed and the article was divided into three equal parts, one having been given to the petitioner and the other two retained by the Food Inspector. Certain other information was collected from the petitioner and his signature was obtained on the copy of Form No. VI. 2. In due course, one part of the sample that was retained by the complainant was forwarded to the Public Analyst along with a memorandum in Form No. VII and the specimen seal though separately. The Public Analyst in due course on analysis of the article opined that the sample contained metanil yellow which was a prohibited colour and as such the article was adulterated. The report is at Exhibit F. Requisite sanction was then obtained in his name by the complainant from his superior and ultimately he filed his complaint in the Court of the Metropolitan Magistrate, 26th Court, Mazagaon, which is the subject-matter of Case No. 49/AD/75. 3. Pleading not guilty to the charge, the petitioner raised several contentions contending that there has been breach of certain mandatory rules framed under the Food Adulteration Act, that the report of the Analyst was not duly proved and was not admissible and lastly it was contended that the petitioner was fully protected by a warranty under the bill. Exhibit No. 1, as he had purchased the commodity from one shah Vinaychand Chunilal Co. through broker, one Vasantji Nathji. Exhibit No. 1, as he had purchased the commodity from one shah Vinaychand Chunilal Co. through broker, one Vasantji Nathji. The learned trial Magistrate, however, rejected the defence contention on all points and held that there has been no breach of Rule 18 and the evidence of warranty was not satisfactory. According to the learned Magistrate, the complainants evidence indicated that the bag contained about 60 kg. of Tur Dal which would indicate that the bag was not received by the shop on the same day whereas the accused himself admits that he had received four bags under the said cash memo, Exhibit No. 1, at abbot 90 clock on the same morning. The learned trial Magistrate, therefore, by his order dated August 20, 1976 convicted the petitioner under section 16(1) (a) read with section 7(i) and 2(i)(j) of the Prevention of Food Aulteration Act and sentenced him to suffer R.I. for 6 months and to pay a fine of Rs. 1000/- in default further R.I. for three months. 4. The petitioner carried Criminal Appeal No. 432 of 1976 in the Court of the Additional Sessions Judge for Greater Bombay where he met with the same fate and the appeal was dismissed on September 26, 1979, which order is being impugned in this proceeding. 5. Shri Thakkar, the learned Counsel for the petitioner has taken me through the entire evidence and has urged that there is non-application of mind on some material aspects which necessitates interference even in revisional jurisdiction. In particular, he has submitted that the evidence as regards warranty has not been property considered at all. In effect, he has canvassed that there is breach of mandatory provisions contained in Rule 18 of the Prevention of Food Adulteration Rules inasmuch as the memorandum and the seal samples were not sent separately. His contention is that the Public Analysts report is not properly proved inasmuch as the person who carried analysis has not been examined and the one who has been examined has not carried the analysis. He has also relied on a statement in cross-examination in the evidence of the clerk from the Public Analysts office under which the witness stated that she could not definitely say as to whether the memorandum and the sample were received separately or at the same time. The last contention relates to the warranty covered under Exhibit No. 1. 6. He has also relied on a statement in cross-examination in the evidence of the clerk from the Public Analysts office under which the witness stated that she could not definitely say as to whether the memorandum and the sample were received separately or at the same time. The last contention relates to the warranty covered under Exhibit No. 1. 6. Shri Parkar, the learned Public Prosecutor for the State, submitted that there is due compliance with the provisions contained in Rule 18 and there is no infirmity as regards the Analysts report. He has also submitted that the defence contention vis-a-vis the warranty has been rightly discarded. 7. In spite of this discussion, really the matter can be disposed of on a short premises which unfortunately has been considered by both the courts below. This Court has taken a consistent view in a series of decisions that breach of rule 17 is fatal to the prosecution and there should be strict compliance thereof and there also should be clear evidence about the compliance of the said provisions. If one observation the scheme of the Rules under the Act, it would be clear that a duty is cast at both ends at the senders end and for the Public Analyst. Under rule 17 the sender after taking the article in a container and after sealing it has to place it in an outer cover and has to seal the outer cover also and it is in that context that he has to forward it to the Public Analyst for analysis. Corresponding duty is cast on the Public Analyst under rule 7 that after receipt of the sample, he has to verify whether it was sent in an outer cover and a further duty cast on him is to verify whether the seal not only on the inner cover but also on the outer cover tallies with the specimen seal separately forwarded. Thus, reading the provisions contained in rules 7 and 17 of the said Rules, it would be clear that those have been prescribed for all purposes so as to ensure that there is no scope for tampering with the article. Admittedly nothing of the sort has been done in the present case and Shri Parkar, the learned Public Prosecutor for the State, has conceded this position, and submitted that there has obviously been breach of rule 17. 8. Admittedly nothing of the sort has been done in the present case and Shri Parkar, the learned Public Prosecutor for the State, has conceded this position, and submitted that there has obviously been breach of rule 17. 8. Evidence of Food Inspector, Shri Rane, not only does not show that any such procedure was followed but on the contrary positively indicates that no such procedure was followed. He has given the details about the steps taken by him and while describing the same, he has stated that he put the sample Tur Dal in three different equal parts and each part was sealed and in the same condition one packet was forwarded to the Public Analyst. It would thus be clear that the packet was never placed in the outer cover. The Public Analysts report, Exhibit F, also does not show that the article was received in an outer cover nor does nor does it show that the concerned authority had verified the tallying of the seal not only on the inner cover but also on the outer cover. In addition thereto, one Shri P.S. Joshi has been examined as P.W. 3 the Public Analyst as also one Smt. Sabnis (P.W. 4) a clerk has been examined from that office and both of them have not referred to this aspect at all. In my opinion, therefore, there is a clear breach of rule 17 and in view of the decision of this Court in Several cases, the prosecution must fail on this count alone. It would, therefore, be not necessary to go into the other parts though incidentally I would refer to the aspect of warranty which, in my opinion, has not been properly considered by both the courts below. 9. To appreciate that, it is necessary to consider some aspects Exhibit No. 1 is the bill issued by Shah Vinaychand Chunilal Co. in the name of the petitioner. It is issued and signed by the said shop and it is duly proved by D.W. 1 Govindji Lakhamshi, who was acting as a Mehtaji of the said shop. According to him, one Vasantji was the broker and this bill Exhibit No. 1 was issued by their concern and it was under this bill that four bags of Tur Dal were issued to the petitioner. The bill is in the name of Chhaya Stores which belongs to the petitioner. According to him, one Vasantji was the broker and this bill Exhibit No. 1 was issued by their concern and it was under this bill that four bags of Tur Dal were issued to the petitioner. The bill is in the name of Chhaya Stores which belongs to the petitioner. The defence have also examined one Vasantji Nagshi (D.W. 2) who is the broker and who has stated that he purchased the goods form the wholeseller on behalf of the customer and that is how he had purchased four bags of Tur Dal mentioned in Exhibit No. 1 on behalf of Chhaya Stores on 3rd June, 1975. It is thereafter that he had arranged to send the said four bags to Chhaya Stores. They have also examined one Sidhu Jakadi (P.W. 3) who is hand-cart-man and who has stated that he had actually delivered four bags of Tur Dal under Exhibit No.1 to the said shop. 10. Now, the most significant feature is that even though these witnesses were cross-examined on behalf of the prosecution, there is not even a whisper echoed in the said cross-examination against the genuineness of the bill, Exhibit No. 1. In other words, it is not even suggested to any of these witnesses and in particular to Mehtaji of the said shop, Shah Vinaychand Chunilal Co., that this bill was manufactures subsequently just to oblige the petitioner. The cross-examination is directed only to find out as to when exactly the four bags under the bill were transported to the shop of the petitioner. It is true that the witnesses are unable to give the exact time though they are very firm that those where despatched under the bill, Exhibit No. 1, and, therefore, must have been on the 3rd evening or on the 4th morning at the latest. The Hand cartmans version that it was on the 4th morning is beyond any controversy in view of the statement of the accused that he had received those four bags just prior to the arrival of the Food inspector. We would, therefore, have to proceed on the basis that the bill, Exhibit No. 1, is a genuine document. It bore that date as the 3rd June, 1975 and, therefore, it would be further legitimate to observe that bags must have been received by the said shop as contended by the petitioner on the 4th morning. We would, therefore, have to proceed on the basis that the bill, Exhibit No. 1, is a genuine document. It bore that date as the 3rd June, 1975 and, therefore, it would be further legitimate to observe that bags must have been received by the said shop as contended by the petitioner on the 4th morning. The bill refers to four Tur Dal bags and the accused states in his statement that he did receive four Tur Dal bags under the said bill. 11. The Food Inspector unfortunately was not prepared to give out the whole truth and took a covenant stand of loss of memory in order to avoid an inconvenient situation. When asked, he stated that he did not remember if there were more than one bags seen by him in the shop. Now, the controversy relates to the contents of the bag in question. According to the defence, the bag was opened in the presence of Food Inspector at the same time whereas according to the Food Inspector it was already opened and there was shortage of 40 kg. On the basis of the evidence of Food Inspector, the courts below have adopted a reasoning that in as much as the bag contained 60 kg. of the commodity, it could not have been received by the shop on the 4th morning and, therefore, by logical corollary this bag had nothing to do with the bill, Exhibit No. 1. In order to draw such an inference against the petitioner, there should be satisfactory evidence. As against this, we find that beyond the bald word of the Food Inspector there is not an iota of evidence to substantiate the same. The Food Inspector was accompanied by an independent person, P.W. 2 Kalyanji Shamji, who has a shop nearby. He has not supported the Food Inspector and has stated that in his presence nothing was done. Even though certain leading questions were put to him, still I find that surprisingly no question was asked to him as to whether only one bag was seen by him in the shop, though he admits that he had actually visited the shop in question. Significantly enough, no panchnama was drawn by the Food Inspector nor any contemporaneous record was made at the relevant time to substantiate his claim that as a matter of fact the bag in question contained only 60 kg. Significantly enough, no panchnama was drawn by the Food Inspector nor any contemporaneous record was made at the relevant time to substantiate his claim that as a matter of fact the bag in question contained only 60 kg. of Tur Dal. I have also gone through the complaint, Exhibit H, and even that document also does not refer to this aspect at all. In my opinion, therefore, in the absence of any other evidence which could have been available to the prosecution and in the absence of the recitals having been incorporated in the complaint and in the absence of a panchanama, it is not safe to accept the uncorroborated word of the Food Inspector that the bag contained 60 kg. of Tur Dal. As stated earlier, this witness was not prepared to give out the entire truth when he feigned loss of memory as to whether there was more than one bag in the shop or otherwise he could have stated that there was only one bag in the shop which would have been contrary to the receipt Exhibit, No. 1. 12. As against this, under circumstances, the defence appears to be more probable. The prosecution have not come out with the positive case that any other bags were found which could not have covered under the bill, Exhibit No. 1. Under the circumstances, it sounds more probable that four bags of Tur Dal were received by the petitioner on the same morning from Shah Vinaychand Chunilal Co. under the bill, Exhibit No. 1, and it is out of the said lot that one bag was opened out of which sample was taken by the Food Inspector. 13. Exhibit No . 1 is not a bill by itself, but in terms contains a warranty as contemplated by section 14 of the Act. It tallies with the prescribed form and complies with all the requisites. This is duly proved by D.W. 1 Govindji and D.W. 2 Vasantji, and there is no challenge to the genuineness thereof. It is true that D.W. 1 Govindji has admitted that the article in question could not have been the one supplied by his shop and the basis for this opinion is that according to the witness, the article supplied by him was not adulterated. Unfortunately both courts below have accepted that position though it was untenable. It is true that D.W. 1 Govindji has admitted that the article in question could not have been the one supplied by his shop and the basis for this opinion is that according to the witness, the article supplied by him was not adulterated. Unfortunately both courts below have accepted that position though it was untenable. The witness in his own interest is bound to say that the article supplied by him was not adulterated. In my opinion, therefore, the so called admission of the witness which found favour with the courts below has no serious repercussion against the defence. 14. It is also with interest to note that the learned Additional Sessions Judge has almost indulged in conjecture when he observed that it was possible under the circumstances that the colour was mixed up at a later stage by the appellant. I find absolutely no basis for this conjecture especially when a serious inference is sought to be drawn against the accused. 15. It is then contended on behalf of the prosecution that the bill, Exhibit No. 1, had not been shown by the petitioner immediately to the Food Inspector. For that purpose also we have to fall back on the bare word of the Food Inspector, inasmuch as the accused has positively stated that he did show the said bill to the Food Inspector. That the bill was in existence at the relevant time is beyond any controversy. That the bill referred to four bags of Tur Dal is also beyond any controversy. That four bags of Tur Dal were transported to the shop of the accused at least on the 4th morning is borne out by the record and it is further legitimate to infer that the sample was taken out of the said lot. That the commodity was thus covered by a warranty under bill, Exhibit No. 1, is also beyond any matter of doubt. Therefore, once the genuineness of the document is established, then it stands to reason more to accept the defence contention that the bill was actually shown by the accused to the Food Inspector and the denial of the Food Inspector carries no conviction. The reasoning adopted by the learned trial Magistrate as also the learned Additional Sessions Judge, in my opinion, is not very sound and, on the contrary, is not in consonance with the evidence. The reasoning adopted by the learned trial Magistrate as also the learned Additional Sessions Judge, in my opinion, is not very sound and, on the contrary, is not in consonance with the evidence. In view of this position, I am of the opinion that the accused is also protected by the warranty under bill, Exhibit No. 1 and therefore, his conviction is not maintainable on that count also. 16. In view of these findings, the order of conviction is unsustainable Shri Thakkar, the learned Counsel, submitted that there is a breach of Rule 18, though I am not in agreement with the said contention in view of the positive statement of the witnesses in question. The prosecution have tendered the evidence of Shri P.S. Joshi (P.W. 3), the Public Analyst and Smt. Sabnis (P.W. 4), the clerk. It is true that Food Inspector Rane says that the sample was sent with the peon and the said peon has not been examined. It is equally true that the said clerk Smt. Sabnis has made certain entry in the Chemical Register. However, I am not attaching much importance to it. As regards the further contention that the Assistant to Public Analyst who made the analysis has not been examined need not be probed into further. Shri Joshi has stated that the analysis was carried by the Assistant under his supervision and surprisingly the defence themselves have got produced the notes of analysis. However, in view of my findings on other points, I am not called upon to decide that question as it is not necessary to do so. In this view of the matter, the order of conviction is manifestly wrong. 17. In the result, the rule is made absolute, the order of conviction and sentence recorded by the trial Magistrate and confirmed in appeal by the Sessions Court is set aside and the petitioner is acquitted of the charges levelled against him. Fine, if paid, be refunded and his bail-bonds stand cancelled. -----