JUDGMENT 1. - The accused-respondent was acquitted by the learned Sessions Judge, Alwar vide his judgment dated 5-12-72 in a case under section 7/16(1) of the Prevention of Food Adulteration Act (Act No. 37 of 1974t (hereinafter referred to as the Act). Hence this appeal by the Municipal Council, Alwar. 2. Briefly stated, the case of the prosecution is that Shambhu Dutt (PW 1) was posted as Food Inspector on September 29, 1966. On that day, he went to the business premises of M/s. Ganga Sahai Girraj Prashad, Kedalganj, Alwar, which deals in 'Deshi Ghee' also. At that time, Girraj Prasad accused-respondent was at the shop and Shambhu Dutt (PW 1), Food Inspector, purchased 450 Grams of 'Deshi Ghee' and paid its price Rs. 4.50 p. It was divided in three equal parts and was filled in clean bottles, each of which was wrapped, corked and sealed in accordance with the rules. One sample of 'Deshi Ghee' was sent to the Public Analyst who examined it vide its report (Ex. P. 3) and found as follows - 1. Butyro-refractometer reading at 400C- 41.8 2. Reichert Value 31.5 3. Free Fatty Acids Oleic Acid 3.75% 4. Moisture 1.39% 5. Sesame Oil Test Negative 6. Added colouring matter Nil In the opinion of the Public Analyst, the sample of 'Ghee' was adulterated, as it did not conform to the prescribed standards of purity. After obtaining the sanction of the Municipal Commissioner, Alwar, a complaint was filed against the accused-respondent. The learned Magistrate convicted the accused under section 7/16(1) of the Act, and sentenced him till the rising of the Court and to pay a fine of Rs. 500/-, or in default of payment of fine to further suffer two months simple imprisonment. The accused-respondent appealed to the Sessions Judge, Alwar, who accepted the appeal and acquitted the accused-respondent of the charge under section 7/16( i) of the Act. 3. We have heard the learned Advocate for the Municipal Council, Alwar, and the learned Advocate for the accused-respondent. As it is an appeal against acquittal, we also granted an opportunity to the learned Advocate for the respondent to support the judgment of acquittal on any other ground. 4. 3. We have heard the learned Advocate for the Municipal Council, Alwar, and the learned Advocate for the accused-respondent. As it is an appeal against acquittal, we also granted an opportunity to the learned Advocate for the respondent to support the judgment of acquittal on any other ground. 4. The submission of the learned Advocate for the appellant is that under section 114, illustration (e), of the Indian Evidence Act, there is a presumption that the Food Inspector had performed his official acts regularly, and, therefore, it can be said that he had died with R.I. 7 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). The learned Sessions Judge, therefore, wrongly held that in the absence of evidence to the effect that the seals of the bottles remained intact till they reached the Public Analyst, the same cannot be relied upon. He further submits that it should not have been held by the learned Sessions Judge that the belated examination of the sample resulted in the increase of moisture and free fatty acids. The learned Advocate for the respondent on the other hand, while supporting the judgment of the appellate court submits that no reasonable explanation has been given for the belated examination of the sample by the Public Analyst, and no evidence has been led that the sample of 'Ghee" was kept in dark away from sun light and moisture, and therefore, the increase in the moisture and fatty acids can also be reasonably attributed to the late examination of the sample in this case, and it being an appeal against acquittal, more so, after a lapse of about 17 years, this court should not interfere. 5. The learned Sessions Judge has acquitted the accused on two grounds. It has been held by him that there is no evidence to show that the seals, which were affixed by the Food Inspector at the time of taking the sample, remained intact when the samples were unsealed by the Public Analyst for examination and further that there is no mention of such specimen seals being intact on the sealed bottles by the Public Analyst in his report, nor is there any other evidence. He has also held that the sample was analysed on 15-12-66 after about three months of taking of the sample and the delay has not been explained by the prosecution. He has also held that the sample was analysed on 15-12-66 after about three months of taking of the sample and the delay has not been explained by the prosecution. Thus, the possibility cannot be ruled out that the moisture and fatty acids increased because of belated examination. 6. In holding that there is no evidence that the seals remained intact from the time of sending the sample till it was unsealed by the Public Analyst for examination, the learned Sessions Judge has placed reliance on Maheshwar Prasad v. State of Rajasthan, 1968 RLW 319 in which reliance was placed on Ratanlal v. The State, 1966 RLW 451 . We are of the opinion that the controversy now stands at rest by a pronouncement of their Lordships of the Supreme Court in Kasim Kunju Pookunju and another v. K. K. Ramakrishna Pillai and another, 1976 (2) FAC (Old Judgment) 68 . In that case, the only argument pressed before their lordships was that R.I. 18 of the rules, which provides that a copy of the memo and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post was not complied with. In that case, the High Court had repelled this very argument relying on the report of the Public Analyst, which was in Form III, as prescribed by the rules. Their lordships observed as follows:- "The High Court was not at all impressed with the contention based on R.I. 18.It relied on the report of the Public Analyst Ex. P.9, 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 mistily asafoetida marked No. C.2/65 for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The contention which was pressed and which has been reiterated before us is that specimen impression of the seal with the seal on the packet of the sample. The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under R.I. 7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under R.I. 7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered 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 with the seal on the container. We do not find any error in the decision of the High Court on the above point." 7. A look at the report (Ex. P. 3) of the Public Analyst will show that it is mentioned therein as follows:- "Received on the 30th day of September, 1966 from the Food Inspector C/o the Municipal Council, Alwar a sample of ghee S. No. 86/S belonging to Girraj Prasad for analysis properly sealed and fastened, and found the seal intact and unbroken." 8. It can, therefore, be said that in the facts and circumstances of this case, a presumption is to be raised that there was compliance of rules 7 and of the rules in this case. The learned Advocate for the accused-respondent has placed reliance on State of Rajasthan v. Ramsahai, 1979 Cri. L.R. 60. But, we are of the opinion that that ruling will not apply to the facts of the instant case, inasmuch as Form III of the Rules, which, came to be considered, was different then is under consideration before us, and the samples in those two cases were taken in the year 1975, after the prescribed form No. III was amended. Moreover, in that case, there was no evidence that the specimen impressions of the seal used to seal the packets of the sample were separately sent to the Public Analyst either by post or by hand. In the case before us, there is a clear statement of the Food Inspector Shri Shambu Dutt, that he had sent the memo with specimen impressions of the seal used to seal the sample separately. Therefore, the first ground on which the learned Sessions Judge has acquitted the accused does not survive. In the case before us, there is a clear statement of the Food Inspector Shri Shambu Dutt, that he had sent the memo with specimen impressions of the seal used to seal the sample separately. Therefore, the first ground on which the learned Sessions Judge has acquitted the accused does not survive. We may also observe here that the learned Sessions Judge has committed a factual error when he observed in para 4 of his judgment that there is no mention of specimen seal on the sealed bottles being intact, in the report of the Public Analyst. We have already reproduced the relevant extract from the report of the Public Analyst, and there is a clear mention that the sample received for analysis was properly sealed, fastened and the seal was found intact and unbroken. 9. Dealing with the second ground on which the judgment of acquittal is based, it is submitted by the learned counsel for the Municipal Council, Alwar that it is not necessary for the prosecution to lead evidence that the sample was kept in dark and precautions were taken that it is not exposed to light and air. According to him, it is to be presumed under section 114, illustration (e) of the Indian Evidence Act that the Food Inspector while performing official acts has acted in accordance with the rules Merely because the sample was examined late, it cannot be said in every case that the increase in moisture and fatty acids is because of the belated examination of the sample by the Public Analyst. In the instant case, the sample of 'Deshi Ghee' was taken on September 29, 1966. It reached the office of the Public Analyst on September 30, 1966. It was not mentioned in the report as to when the sample was actually analysed, a practice which is now being adopted, then only the date of the report was mentioned. Ex. P.3 is dated 15-12-1966. In the absence of any evidence as to when the sample was examined, we will assume for the disposal of this appeal that the sample was examined on 15-12-1966. But, the learned Sessions Judge Last only observed that there was delay of three months in examining the sample. As a matter of fact there appears to be a delay of about 2 months. But, the learned Sessions Judge Last only observed that there was delay of three months in examining the sample. As a matter of fact there appears to be a delay of about 2 months. The learned Advocate for the appellant has placed reliance on Chatnpalal v. The State of Rajasthan, 1977 (1) FAC 27 . In that case, the sample of the oil was taken on February 16, 1968 and was analysed by the Public Analyst as late as February 27, 1968. It was not stated by the Food Inspector in his statement that the sample of mustard oil was filled in clean and dry bottles and that the stoppers to the bottles were properly fastened. It was not even stated by him that the bottles were wrapped in thick papers and the ends of the papers were neatly folded and affixed by means of gum or some other adhesive, and that they were tied with thread in the manner provided by R.I. 16 of the Rules. The free fatty acid calculated as oleic acid were found 4.5%, the prescribed maximum for the oil being only 3%. It was contended that the microscopic increase in the free fatty acid contains should be attributed to exposure of sample to light and air during the interval of time between the taking of sample and its analysis. It was further submitted that edible oils are liable to increase in free fatty acids. The learned Sessions Judge repelled these arguments, and placing reliance on Kasim's case observed as follows:- "The presumption which arises under illustration (e) of section 114 of the Evidence Act is rebuttable, but the accused-petitioner has failed to do it. Neither in cross-examination of the prosecution witnesses nor in arguments before the trial court or the appellate court it was contended that the bottles containing the sample were not properly packed or fastened or that the sample bottle sent to the Public Analyst for analysis was exposed to air and sun. Now, it is too late in the day for him 10 raise this controversy. If the accused really wanted to R.I. on the defect of packing of the sample bottle, he ought to have produced his own bottle, and cross-examine the Food Inspector (PW 1) Bhanwarlal regarding the defects in packing. Now, it is too late in the day for him 10 raise this controversy. If the accused really wanted to R.I. on the defect of packing of the sample bottle, he ought to have produced his own bottle, and cross-examine the Food Inspector (PW 1) Bhanwarlal regarding the defects in packing. Since, he did nothing of the sort at the right time, it only means that it is an after thought." 10. Part V of the Rules deals with sealing, fastening and despatch of samples by the Food Inspector. Under R.I. 14 the manner of sending the samples for analysis is given, Under this rule, the 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 of moisture and shall be carefully sealed. The manner of packing and sealing the samples is given in R.I. 16. 11. We are of the opinion that rules 14 and 16 of the Rules provide sufficient safeguards to prevent decomposition of the sample of 'ghee' or of oil, as the case may be. It shall be presumed under section 144, illustration (e) of the Indian Evidence Act that the Food Inspector has performed his official acts regularly and has complied with the rules 14 and 16. But, this presumption is rebuttable, and it would, however, be always open to an accused in any case to bring on record material by cross-examination or otherwise and to show that the bottles and jars were not clean, they were not closed sufficiently tight to prevent leakage of evaporation, entrance of moisture and the packing was so inadequate or defective that it would not have prevented air and light affecting the sample, ghee or oil, as the case may be, contained in the bottle. The learned Advocate for the accused-respondent has placed reliance on the Municipal Board, Kanpur v. Hanuman Prasad, 1979 (I) FAC 248 . In that case, the Public Analyst found the sample of 'ghee' to contain free fatty acids (as oleic acid) 11.2%, but the moisture (water content) was within permissible limit. In that case, analysis was done after about two months of the taking of the sample. In that case, the Public Analyst found the sample of 'ghee' to contain free fatty acids (as oleic acid) 11.2%, but the moisture (water content) was within permissible limit. In that case, analysis was done after about two months of the taking of the sample. Placing reliance on the results of certain tests, contained in the book "Butter-fat (ghee)" by N.N. Godhole and Sadgopal, published by the department of Industrial Chemistry, Benaras Hindu University in the year 1939, it was observed that it can be said as a result of experiments conducted that the presence of moisture increases the said contents, and if there is moisture coupled with light, the action is accelerated. To our mind, the question of applicability of results of various experiments conducted in connection with 'Deshi ghee' to a particular sample will only arise if the factual foundation is Laid, because the experiments are conducted under certain conditions and circumstances and unless in a given case the same circumstances are brought out on record, the result of examination in a laboratory, to our mind, will hardly be applicable to such a case. Unless there is material on record, how the sample was dealt with after being taken, hardly a case for the applicability of the result of any of the experiments conducted in the laboratory can arise. In the instant case, we have said above that there is a presumption, though rebuttable that in taking the sample and sending it to the Public Analyst, the Food Inspector while performing his official act has acted in accordance with the rules. We may also say that in this case presumption does not stand rebutted. Moreover, in this case, not only the free fatty acids (oleic acid) increased by 0.75%, but the moisture was found to be 1.39%, when the prescribed standard is maximum .03%. It increased about four times. We are, therefore, unable to say, in the facts of this case, that the moisture content and the free fatty acid increased because of the belated examination of the sample. The learned Advocate has placed reliance on Radheylal v. State, 1979 (I) FAC 252 . It increased about four times. We are, therefore, unable to say, in the facts of this case, that the moisture content and the free fatty acid increased because of the belated examination of the sample. The learned Advocate has placed reliance on Radheylal v. State, 1979 (I) FAC 252 . In that case, it was found as a fact that moisture in excess of the standard was present in the sample and under those circumstances it was held that the presence of .03% of moisture in excess of the standard may very well have been created during the interval between the taking of the sample and its chemical examination one month later. The facts of that case will not apply to the instant case. 12. In the result, we are of the opinion that the acquittal of the accused by the appellate court cannot be sustained. We, therefore, accept the appeal of Municipal Council, Alwar, set aside the judgment of the learned Sessions Judge acquitting the accused of the offence under section 7/16(1) of the Act. We restore the judgment of the trial court which convicted the accused-respondent under section 7/16(1) of the Act, and sentence him to imprisonment till the rising of the Court and to a fine of Rs. 600/-, or in default to undergo two months simple imprisonment.Appeal accepted. *******