State of Gujarat v. Khodaji Jinaji — 1980 DIGILAW 150 (GUJ)

JUDGMENT : R.C. Mankad, J. State of Gujarat has filed this appeal challenging the judgment and order dated July 31, 1978, passed by the learned Additional Sessions Judge, Court No. 13, Ahmedabad City, acquitting the Respondent No. 1 of offence punishable under section 16(1)(a)(i) read with Section 7(1) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). 2. Facts leading to this appeal may be briefly stated as under Respondent No. 2, who is Food Inspector of the Ahmedabad Municipal Corporation, purchased 700 ml. of cows milk for Rs. 1.05 P. from Respondent No. I on August 27, 1976 after giving due intimation in writing to him that milk was purchased for analysis by the Public Analyst. Milk was purchased in presence of peon Daud Gatur and panch Sukhalal Sohansinh. Milk purchased by the Food Inspector was taken in a tumbler and thereafter it was divided into three equal parts. Each part was poured in a clean dry bottle and preservative called formaline was added to it. Each bottle was duly sealed and wrapped in a thick brown paper. The ends of the paper were affixed by means of gum. Paper cover of each bottle was secured by means of twine and each packet containing bottle was duly sealed. One of the bottles containing sample of milk was sent to the Public Analyst for analysis. The Public Analyst by his report Exh. 9, gave opinion that the sample of cows milk sent to him for analysis did not conform to the standard laid down under the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules), framed under the Act. In the opinion of the Public Analyst the milk was adulterated. The Public Analyst detected addition of 28 per cent water in the milk. After obtaining necessary sanction, Respondent No. 2 filed complaint against Respondent No. 1 in the Court of the Metropolitan Magistrate, Sixth Court, Ahmedabad, alleging that the Respondent No. 1 had committed an offence punishable under Section 16(1)(a)(i) read with section 7(1) of the Act. 3. During the trial on the application made by Respondent No. 1, one of the sample bottles was sent to the Director of Central Food Laboratory for analysis. The certificate issued by the Director is at Exh. 2. The prosecution examined Food Inspector and peon Daud Gafur. 3. During the trial on the application made by Respondent No. 1, one of the sample bottles was sent to the Director of Central Food Laboratory for analysis. The certificate issued by the Director is at Exh. 2. The prosecution examined Food Inspector and peon Daud Gafur. It appears that the Public Analyst was called for cross-examination by Respondent No. 1 Panch Sukhalal Sohanlal could not be examined as his whereabouts were not known. On consideration of evidence led by the prosecution, the learned Magistrate by his judgment and order dated August 23, 1977, held Respondent No.1 guilty of offence with which he was charged. He, therefore, convicted him for offence under section 16(1)(a)(i) with section 7(1) of the Act and sentenced him to simple imprisonment for six months and a fine of Rs.1000/- or in default further simple imprisonment for four months. 4. Being aggrieved by the order of conviction and sentence passed by the learned Magistrate, Respondent No. 1 preferred appeal before the Court of Sessions of Ahmedabad City. Several contentions were raised before the learned Additional Sessions Judge. The learned Judge, however, rejected all the contentions, except one, namely that the prosecution had failed to prove that the Food Inspector had complied with the provisions of rule 16(d) of the Rules. Consequently, relying on a decision of this Court in Criminal Revision Application No. 627 of 1976, decided on December 12, 1977, he acquitted Respondent No. 1. The learned Judge held that the provisions of rule 16(d) were mandatory and non-compliance with these provisions was fatal to the prosecution case. In the result, the learned Judge by his impugned judgment and order acquitted Respondent No. 1. 5. Mr. J.M. Panchal, learned Public Prosecutor appearing for the State, submitted that the learned Judge was not right in reaching the conclusion that the Food Inspector had not complied with the requirements of rule 16(d). Mr. Panchal pointed out that according to the learned Judge only the last part of rule 16(d) was not complied with. In other words, it has been found that the knots of the twine or thread by which paper cover was secured were not covered by means of sealing wax bearing the impression of the seal of the sender. Mr. Panchal urged that there is no warrant for the conclusion reached by the learned Judge. In other words, it has been found that the knots of the twine or thread by which paper cover was secured were not covered by means of sealing wax bearing the impression of the seal of the sender. Mr. Panchal urged that there is no warrant for the conclusion reached by the learned Judge. In absence of any positive evidence, the learned Judge should have presumed that the Food Inspector had done all the acts which he was required to do under rule 16(d). In other words, submitted Mr. Panchal, presumption under section 114 of the Evidence Act should have been raised that the Food Inspector had covered all the knots of the twine or the thread by means of sealing wax bearing impression of his seal. Mr. Panchal submitted that therefore, even assuming that the provisions of rule 16(d) were mandatory, it should have been held that the Food Inspector had complied with the provisions. The learned Judge was, therefore, wrong in reaching the conclusion which he did and acquitting respondent No. 1. 6. Mr. B.K. Amin, learned Advocate for Respondent No. 1 on the other hand submitted that the provisions contained in rule 16(d) were mandatory and no aid of presumption under section 114 of the Evidence Act can be taken to hold that the requirements of such a mandatory rules were complied with. Mr. Amin pointed out that the Food Inspector had stated in details the manner in which he collected sample, poured in three different bottles after dividing it equally and the manner in which he packed and sealed the bottles. Nowhere in his evidence, has he stated that he covered the knots of the twine or thread which he used to secure paper cover by means of sealing wax bearing his seal. The evidence of the Food Inspector, therefore, proves beyond doubt that he had not complied with the provisions of rule 16(d). These provisions being mandatory, they were required to be strictly complied with and as the Food Inspector had failed to comply with them, respondent No. 1 was in any case entitled to benefit of reasonable doubt. 7. In order to appreciate the contention raised before us, it is necessary to read the entire rule 16, which reads as under :- "16. 7. In order to appreciate the contention raised before us, it is necessary to read the entire rule 16, which reads as under :- "16. Manner of packing and sealing the samples : All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely :- (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit; (b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive; (c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression; Provided that in case, the person from whom the sample has been taken refuse to affix his signature or thumb impression; the signature or thumb impression of the witness shall be taken in the same manner. (d) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container and this twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender." 8. The provisions contained in rule 16 with regard to the manner of packing and sealing the samples, are obviously made to prevent tampering with the samples taken for analysis. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender." 8. The provisions contained in rule 16 with regard to the manner of packing and sealing the samples, are obviously made to prevent tampering with the samples taken for analysis. These provisions are of great significance in view of the provisions contained in sub-section (5) of section 13 of the Act whereunder the report made by the Public Analyst and the certificate sent by the Director of Central Food Laboratory (hereinafter referred to as the "Director") may be used as evidence of the facts stated therein in any proceedings under the Act, or under sections 272 to 276 of the Indian Penal Code. The fate of the person accused of an offence punishable under the Act depends on the report of the Public Analyst or the certificate issued by the Director, which are not open to challenge by the accused in any manner whatsoever. Once the Director issues a certificate that the food sample sent to him was adulterated, as observed by the Division Bench of this Court in Shriram Hari Chand v. State, 17 G.L.R. 434, fate of the accused is sealed. It is not open to him even to ask the Court to get back the food sample analysed by the Director for further analysis by his own expert. When the final and conclusive character attributed to the certificate issued by the Director produces such a far-reaching consequence, there is no doubt that all provisions of law which relate to it and which confer even the smallest safeguard on the accused must be construed strictly and not liberally. As pointed out above, the provisions contained in rule 16 are made to prevent tampering with the samples taken for analysis. These provisions therefore, confer safeguard on the accused. Therefore, for the reasons stated by this Court in Shriram's case (supra) with which we respectfully agree, the provisions contained in rule 16 must be held to be mandatory. In Jethala Lallubhai v. Baroda Municipal Corporation, 1979 (II) FAC 83 , D.P.Desai, J. held that the provisions contained in rule 16 (b) and rule 16 (c) regarding manner of packing were mandatory. In Jethala Lallubhai v. Baroda Municipal Corporation, 1979 (II) FAC 83 , D.P.Desai, J. held that the provisions contained in rule 16 (b) and rule 16 (c) regarding manner of packing were mandatory. We agree with the view taken by D.P.Desai, J. For the same reasons provisions of clause (d) of rule 16 also must be held to be mandatory and must be strictly complied with. 9. Clause (d) of rule 16 provides that the paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and this twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top, one at the bottom and the other two on the body of the packet. Then comes the provision which is not alleged to have been strictly complied with by the Food Inspector. Further provision of clause (d) which is said to have been violated lays down : "The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender". It was urged on behalf of respondent No. 1 that under this last requirement the knots of the twine or thread have to be covered by means of sealing wax bearing the impression of the seal of the sender and this obviously means that the knots of twine or thread have to be separately or distinctly sealed. The argument was that besides four seals, which are required to be affixed on the top, bottom and body of the packet, there must be a separate seal on the knots of the twine or thread. We are not inclined to accept this argument. What clause (d) requires is that there should be at least four seals, one on the top, one on the bottom and other two on the body of the packet. It does not contemplate a separate or distinct seal on the knots as urged on behalf of Respondent No. 1. One of the aforesaid four seals may also cover the knots of twine or thread, and if that is done, the requirement of clause (d) would be met. It does not contemplate a separate or distinct seal on the knots as urged on behalf of Respondent No. 1. One of the aforesaid four seals may also cover the knots of twine or thread, and if that is done, the requirement of clause (d) would be met. Knots of the twine or thread could be separately covered also by means of sealing wax bearing the impressions of the seal of the sender, but we do not agree that unless there is a separate or distinct seal covering the knots, the requirements of clause (d) of rule 16 could not be said to have been complied with. In the instant case, the Food Inspector has deposed that after dividing the sample in three equal parts, he poured each part in a clean dry bottle and cork of each bottle was duly sealed. Each bottle was then packed in a brown paper, ends of which were affixed by means of gum. The paper cover containing each bottle was secured by means of thread and seals were affixed on all the four sides of each packet. It was urged by Mr. Panchal that the evidence of the Food Inspector, therefore, proves that the requirements of clause (d) of rule 16 were complied with. In any case, presumption under section 114 of the Evidence Act must be drawn that the Food Inspector performed all the acts which he was required to perform under the said clause regularly and properly. It was further urged that Respondent No. 1 had failed to rebut this presumption. 10. In light of what is discussed above, the important question which arises for our consideration is whether presumption under section 114 of the Evidence Act could be drawn as urged by Mr. Panchal. The question whether the Public Analyst could be presumed to have performed his acts regularly under Section 114 of the Evidence Act came up for consideration before the Supreme Court in Kassim Kunju Pookunju and another v. K.K. Ramkrishna Pillai and another, 1976 (II) F. A.C. (old judg.) 68. The Supreme Court approved the view taken by the Kerala High Court that it must be presumed that the Public Analyst acted in accordance with the rules and must have compared the specimen impression received by him with the seal on the container. The Supreme Court approved the view taken by the Kerala High Court that it must be presumed that the Public Analyst acted in accordance with the rules and must have compared the specimen impression received by him with the seal on the container. It was contended on behalf of the appellant in that case that the rules framed under the Act has not been complied with inasmuch as it had not been proved that the specimen impression of the seal used had been sent to the Public Analyst. Rule 18 of the Rules provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post. Under rule 7, the Public Analyst has to compare the seals on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for analysis. The contention which was pressed before the High Court and which was reiterated before the Supreme Court was that it was nowhere stated in the report that the Public Analyst had compared the specimen impression of the seal with the seals on the packet of the sample. In rejecting this contention, the High Court relied on the report of the Public Analyst which was in form III as prescribed by the Rules, in which it was stated, inter alia, that the Public Analyst had received from the Food Inspector a sample of compounded misky asafoetida for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The High Court invoked the principle that official acts must be presumed to have been regularly performed and held that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him separately with the seals on the container and the outer cover. The Supreme Court approved the view taken by the High Court observing as follows :- "We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied." 11. The Supreme Court approved the view taken by the High Court observing as follows :- "We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied." 11. The question whether presumption under section 114 of the Evidence Act applies to the report of the Public Analyst, came up for consideration before the Full Bench of the Madhya Pradesh High Court in State v. Chhotekhan, 1973 FAC 282. In that case, the evidence did not disclose that the specimen of the seal was sent separately to the Public Analyst as required by rule 18 of the Rules or that he bad compared the seal on the container with the one separately sent to him as required by rule 7 of the Rules. The question which arose before the Full Bench was whether there is, in view of illustration (e) under section 114 of the Evidence Act, a rebuttable presumption that official acts like sending a specimen seal separately and the comparison of the seal on the container with that seal as sent were properly performed. The Full Bench of the Madhya Pradesh High Court, after referring to the decision of the Supreme Court in K.K. Pookunju v. K.K. Ramkrishna Pillai (supra) observed as follows :- "The principle embodied in illustration (e) under section 114 of the Evidence Act is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity have been complied with what purports to be report signed by a Public Analyst is, without any other proof, admissible in evidence and the presumption arising under Section 114 of the Evidence Act to the regular performance of official acts also applied to it. The accused is not thereby prejudiced. He may rebut the presumption by cross-examining prosecution witnesses or leading other evidence." Delhi High Court has taken a similar view in Ram Parkash v. The State, 1977 (I) F.A.C. 33. 12. Similar question with reference to the provisions contained in clause (b) of rule 16 had come up for consideration before a Division Bench of this Court in Criminal Appeals Nos. 12. Similar question with reference to the provisions contained in clause (b) of rule 16 had come up for consideration before a Division Bench of this Court in Criminal Appeals Nos. 64 and 65 of 1977, which were disposed of by a common Judgment on October 3, 1979. It was contended before the Division Bench that as the Food Inspector had not complied with the provisions of rule 16 (b), the prosecution must fail. The evidence disclosed that the Food Inspector had not neatly folded in and affixed the ends of the paper, in which the sample bottles were wrapped, by means of gum or adhesive. It was, however, urged on behalf of the prosecution that the official acts should be presumed to have been done properly or regularly under Section 114 of the Evidence Act. The Division Bench after referring to various decisions including the decision of the Supreme Court in K.K. Pookunju (supra) held that in case where duty is cast upon the Food Inspector to do a particular thing, presumption under Section 114 of the Evidence Act would arise and it can be safely held that he had done official act in regular course of business. The Division Bench, however, after discussing the evidence of the Food Inspector observed that neither in his examination-in-chief nor in his cross-examination he had referred to his having affixed the ends of the wrapper of the bottle by means of gum or any other adhesive and in view of this clear evidence of the Food Inspector, it was difficult to hold that he had affixed the wrapper by means of gum or adhesive. It was having regard to the state of evidence in that case that the Division Bench concluded that the requirement of rule 16 (b) was not complied with. It would, therefore, appear that the decision of the Division Bench turns on the facts in that case. Mr. B.K. min learned Advocate for Respondent No. 1, who cited the above decision of the Division Bench is, therefore, not right in contending that the decision supports the view which he is canvassing before us, namely that in a case in which the question arises whether the mandatory provisions of law are complied with, no presumption under section 114 of the Evidence Act could be drawn. In our opinion, application of section 114 does not depend upon the mandatory character or otherwise of the provisions of law which are required to be considered while deciding whether the particular official act has or has not been done. It is immaterial whether the official acts are to be done under directory provisions or mandatory provisions. In either case, once the acts are proved, presumption can be drawn that they are regularly or properly done. In other words, the mandatory character of provisions of law has no bearing on the question of application of section 114 of the Evidence Act. It is true that presumption is optional or in other words, the Court is not bound to make it. The provisions contained in rule 16 (d) are undoubtedly mandatory as held by us above, but we see no force in the argument that aid of presumption under section 114 and illustration (e) thereunder, cannot be taken in presuming that the acts required to be done or performed under the said provisions have been properly or regularly done. The acts which the Food Inspector was required to do under rule 16 (d) were indisputably official acts. In our opinion, in absence of positive evidence to show that he had not performed such acts properly or regularly, there would be a presumption that he had performed these acts properly or regularly under section 114 of the evidence Act. 13. There is no evidence on record to show that the Food Inspector had not done the acts which he was required to do under rule 16 (d) properly or regularly. The learned Judge was, therefore, wrong in not presuming that he had complied with the provisions of rule 16 (d). 14. As pointed out above, the Food Inspector has deposed that he had applied seals on all the four sides of each packet containing the sample bottle. It was urged that since the Food Inspector had affixed only four seals, it would indicate that he had not sealed the knots of the twine or thread as required by last part of rule 16 (d). As already observed by us, the rule does not require separate or distinct seal on the knots of the twine or thread. One of the four seals required to be affixed on the top, bottom and body of the packet could cover knots of the twine or thread. As already observed by us, the rule does not require separate or distinct seal on the knots of the twine or thread. One of the four seals required to be affixed on the top, bottom and body of the packet could cover knots of the twine or thread. What rule requires is that there should be at least four seals affixed on the packet. The Food Inspector had affixed four seals on the packet. There is no reason to hold that the knots of twine or thread used by the Food Inspector in fastening the paper cover or wrapper were not covered by one of these seals. It is not disputed that the Food Inspector had fastened the twine or thread by means of sealing wax bearing impressions of his seal, while sealing the packet as stated above. Therefore, though the Food Inspector had not specifically stated that the knots of twine or thread used by him were covered by means of sealing wax, bearing the impression of his seal, it must be presumed that he must have so covered the knots of the twine or thread used by him. As held by us above, this presumption could be made under illustration (e) under section 114 of the Evidence Act. The Public Analyst by his letter Ex. 6 dated August 27, 1976 acknowledged the receipt of the sample of milk received by him for analysis. In this letter, the Public Analyst stated:-"I compared the seals and signature on the outer cover and on the container of the sample bottle along with the seal impression and specimen of signature received separately and they tallied with each other and I also found the seals on the outer cover and on the container intact and in an unbroken condition and the samples were in a condition fit for analysis." In the report Exh. 9 dated August 27, 1976, the Public Analyst stated inter alia that the sample of cows milk received from the Food Inspector for analysis was properly sealed and fastened and that he had found the seal intact and unbroken. The report further stated that the seal on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and that the sample was in a condition fit for analysis. The report further stated that the seal on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and that the sample was in a condition fit for analysis. Under sub-section (5) of Section 13 of the Act, any document purporting to be a report signed by a Public Analyst, may be used as evidence of the facts stated therein. It is true that such use of the report can not be made if it is superseded under sub-section (3). In other words, if the report of the Public Analyst is not consistent with the certificate issued by the Director, it shall stand superseded to the extent it is inconsistent with the certificate. It is not correct to say that once the certificate is issued by the Director, the report of the Public Analyst stands replaced or set aside or it cannot be used for any purpose. In our opinion, when the certificate of the Director is received, the report will not stand eschewed in its entirety, it however, cannot be gainsaid that the report cannot be read as evidence in so fat as it is not consistent with the certificate, in other words, the certificate of the Director will supersede the report only in respect of those different from the one expressed in the report is case, therefore , though the Director has issued a certificate, in our opinion, the report of the Public Analyst cannot be ignored or discarded. The certificate of the Director will undoubtedly prevail in so far as there is difference of opinion between the Director and the Public Analyst. For example, in his report Exh. 9 the Public Analyst has declared the results of analysis as follows:- Milk solids non fat 6.1% Milk fat 5.0% The Director has in his certificate given the percentage of milk fat and milk solids non fat as follows: Milk fat 5.7% Milk solids non fat 6.4% The Director has, however, confirmed the opinion of the Public Analyst that the sample of milk was adulterated. In our opinion, the report of the Public Analyst stands superseded by the certificate of the Director in so far as the percentages of milk fat are concerned. In our opinion, the report of the Public Analyst stands superseded by the certificate of the Director in so far as the percentages of milk fat are concerned. However, the statement to the effect that the sample of milk sent by the Food Inspector for analysis was properly sealed and fastened and seals were found intact and unbroken contained in the report of the Public Analyst, does not stand effaced on the account of the certificate issued by the Director. In other words, this statement can be read as evidence under sub-section (5) of section 13 of the Act. The statement of the Public Analyst that the sample was properly sealed and fastened, could only mean that it was properly sealed and fastened in accordance with rule 16. Therefore besides the evidence of the Food Inspector, we have evidence in the shape of the report of the Public Analyst which shows that the provisions of rule 16 (d) were complied with. In this connection, it is also important to refer to the application dated September 30, 1976 made by respondent No. 1 to the learned Magistrate to send the sample bottle to the Director for analysis and the order passed below this application. In the order dated September 30, 1976 passed below this application, the learned Magistrate observed that the sample bottle was properly sealed and that it was in good condition. This statement contained in the order of the learned Magistrate also goes to show that the sample bottle was properly sealed. Therefore, apart from the presumption which could be legitimately drawn, there is evidence to establish that the provisions of rule 16 (d) were complied with by the Food Inspector. The finding of the learned Judge to the contrary, therefore, deserves to be set aside. 15. This disposes of the contention which found favour with the learned Judge in acquitting respondent No. 1. Mr.Amin, however, pressed other contentions which were raised before the learned Judge but were rejected by him. One of such contentions was that there was no evidence to prove that the requirements of rule 4 (3) were satisfied. The learned Judge rejected the contention relying on section 114 of the Evidence Act. We are unable to appreciate logic of the learned Judge in not applying section 114 to rule 16 (d) while applying it to rule 4 (3). The learned Judge rejected the contention relying on section 114 of the Evidence Act. We are unable to appreciate logic of the learned Judge in not applying section 114 to rule 16 (d) while applying it to rule 4 (3). However, in our opinion, the learned Judge has not erred in invoking the provisions of section 114 of the Evidence Act and holding that it should be presumed that the requirements of rule 4 (3) have been satisfied. As pointed out above, this Court in Shriram Harichand's case (supra), held that the provisions contained in rule 4 (3) are mandatory and therefore, they are required to be strictly complied with. There is absolutely no evidence on record to hold that they have not been complied with. In other words, the presumption raised under section 114 of the Evidence Act has not been rebutted by Respondent No. 1. But apart from that, we find that there is sufficient material on record to hold that the provisions of rule 4 (1) have been complied with. In Memorandum dated October 5, 1976 addressed to the Director the learned Magistrate has, while forwarding the sample of the cows milk for analysis, stated : "A Copy of the memorandum and specimen of the impression of the seal used to seal the container and the cover are sent separately by registered post." What rule 4 (3) requires is that a copy of the memorandum and specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. In view of the statement referred to above made in the memorandum, sent by the learned Magistrate to the Director, it would appear that the provisions of rule 4 (3) have been duly complied with. It was, however, urged that the receipts in respect of payment of registration charges for sending the sample and the memorandum of specimen signature separately are not produced on the record. It was further urged that there was no postal acknowledgment also to show that the sample and the memorandum of the specimen of seal were sent separately by registered post. We are not impressed by this argument. In his judgment, the learned Magistrate has also made a reference to the manner in which the sample of milk and copy of the memorandum and specimen of seals were sent to the Director. We are not impressed by this argument. In his judgment, the learned Magistrate has also made a reference to the manner in which the sample of milk and copy of the memorandum and specimen of seals were sent to the Director. It was observed by the learned Magistrate that the sealed packet containing the sample bottle and copy of the memorandum and the specimen of seal were sent separately by registered post. In our opinion, therefore, there is sufficient material on record to come to the conclusion that the provisions of rule 4 (3) were duly complied with. 16. The next contention which was raised on behalf of Respondent No. 1 was that there is no evidence to prove that the tumbler in which the Food Inspector collected sample of cows milk from Respondent No. 1 was clean and dry. It was urged that in absence of such evidence, it must be held that the provisions of rule 14 were not complied with. In support of this contention, reliance was placed on the decisions of this Court in Criminal Revision Application No. 447 of 1979 decided on February 8, 1979 and Criminal Appeal No. 977 of 1977 decided on April 15, 1980. 17. Rule 14 on which reliance is placed by Mr. Amin in support of his above contention reads as under :- "Manner of sending samples for analysis :- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance or moisture and shall be carefully sealed." It was urged that the provisions of this rule have been held to be mandatory by the Division Bench of this Court in Criminal Appeal No. 977 of 1977 and, therefore, non-compliance with these provisions will be fatal in the prosecution. It was further urged that in the said decision of the Division Bench argument advanced on behalf of the prosecution that rule 14 applies only to bottles or jars or other containers in which sample is collected for sending it for analysis and not to the container or vessel in which the food article is first collected, was negatived. It was further urged that in the said decision of the Division Bench argument advanced on behalf of the prosecution that rule 14 applies only to bottles or jars or other containers in which sample is collected for sending it for analysis and not to the container or vessel in which the food article is first collected, was negatived. Therefore, the tumbler in which the Food Inspector first received the cows milk from Respondent No. 1 was required to be clean and dry. There being no evidence to prove that it was clean and dry, the prosecution must fail. It is true that in both the decisions referred to above, view has been taken that the bottle, jar or other container in which sample is taken for analysis must be clean and dry and if they are not proved to be so, the prosecution would fail. The Division Bench in its judgment in Criminal Appeal No. 977 of 1977 has further held that rule 14 not only applies to the bottles, jars and other containers in which samples of food are collected for sending them for analysis but it also applies to the vessel or container in which the article of food is first collected. In view of this decision, respondent No. 1 is right in contending that the tumbler in which the Food Inspector first received the sample of cows milk from respondent No. 1 is required to be dry and clean. Rule 14 has been held to be mandatory and therefore, it was required to be duly complied with. We, however, find that in one of the two cases section 114 of the Evidence Act was applied. No argument based on section 114 of the Evidence Act was advanced before the Court. Therefore, the aforesaid decisions are no authority for the proposition that section 114 of the Evidence Act has no application to rule 14. In our opinion, presumption under section 114 of the Evidence Act can be raised for deciding whether rule 14 has been complied with. There is no positive evidence on record to prove that the tumbler used by the Food Inspector while receiving the sample of cows milk from respondent No. 1 was not dry and clean. In absence of such evidence, in our opinion, it should be presumed that the tumbler was dry and clean. There is no positive evidence on record to prove that the tumbler used by the Food Inspector while receiving the sample of cows milk from respondent No. 1 was not dry and clean. In absence of such evidence, in our opinion, it should be presumed that the tumbler was dry and clean. We, therefore, hold that the provisions of rule 14 were also duly complied with. 18. The last contention which was urged by Mr. Amin was that the milk is a primary food and as Respondent No. 1 was not proved to have done anything to affect its constituents, he cannot be held guilty of the offence with which he is charged. Mr. Amin, pointed out that under proviso to sub-clause (m) of section 2(ia) of the Act, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of sub-clause (m). We do not find any substance in this contention. Under Section 105 of the Evidence Act when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within the special exceptions or proviso contained in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Respondent No. 1 is charged for offence under section 16(1)(a)(i) of the Act. It is the prosecution case that he sold an article of food which was adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 of the Act. While considering the question whether Respondent No. 1 committed the offence with which he is charged, definition of the word "adulterated" defined in clause (ia) of section 2 along with sub-clause (m) has to be read in section 16(1)(a)(i) of the Act. Therefore, as laid down in section 105 of the Evidence Act it was for respondent No. 1 to prove that his case falls under proviso to sub-clause (m) of section 2(ia). In our opinion, respondent No. 1 has failed to bring his case within the said proviso. Therefore, as laid down in section 105 of the Evidence Act it was for respondent No. 1 to prove that his case falls under proviso to sub-clause (m) of section 2(ia). In our opinion, respondent No. 1 has failed to bring his case within the said proviso. There is no evidence on record to prove that the cows milk of which sample was taken by the Food Inspector was primary food. It is held by a Division Bench of this Court in Natverlal C. Shah v. Prabhatbhai Punjabhai, 1980 (I) FAC 489 that milk is not primary food within the meaning of clause (xiia) of section 2, unless the accused proves that milk was drawn from cow, which was reared on the soil and which got its substance therefrom and was in its natural form before it was adulterated. There is also no evidence to prove that the quality or purity of the cows milk in question had fallen below the prescribed standards or its constituents were present in quantities not within the prescribed limits of variability solely due to natural causes and beyond the control of human agency. We, therefore, reject the last contention of Mr. Amin. 19. In the result, this appeal must succeed. We, therefore, set aside the order of acquittal passed by the learned Additional Sessions Judge, Court No. 13, Ahmedabad. Respondent No. 1 is held guilty and convicted of offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. The learned Metropolitan Magistrate, 6th Court, Ahmedabad had sentenced Respondent No. 1 to six months simple imprisonment and fine of Rs. 1000/- or in default four months simple imprisonment for the said offence. Six months imprisonment is minimum prescribed by law. We propose to restore order of sentence passed by the learned Magistrate and since the sentence passed by the learned Magistrate is minimum prescribed by law, it is not necessary for us to hear Respondent No. 1 on the question of sentence. We accordingly sentence Respondent No. 1 to six months simple imprisonment and fine of Rs. 1000/- or in default four months further simple imprisonment for offence under Section 16(1)(a)(i) read with section 7(1) of the Act. 20. Respondent No. 1 is to surrender within four weeks. Appeal allowed.