JUDGMENT - M.D. KAMBLI, J.:---The applicant was one of the two accused in the trial Court and he was tried for an offence under section 7(i) and 7(v) of the Prevention of Food Adulteration Act, 1954, punishable under section 16(1)(a)(i) and 16(1)(a)(ii) of the Act on the allegation that he had sold the adulterated food namely gram (chana) which was found to be adulterated article of food and it was also alleged that the sale of the gram was in contravention of the Rule 44-A of the rules made under the said Act. 2. The story of the complainant Food Inspector Shri Patki was that he on 2-10-1973 visited the shop styled as M/s. Pravinkumar Shambudayal Sharma at Aurangabad when the present applicant Mishrilal was present. The case of the complainant is that the applicant sold 750 gms. of grams (chana) to him. The sample of the gram purchased from the applicant was divided in three parts. One of the parts was sent to the Chief Chemist, Public Health Laboratory at Aurangabad for analysis. The Chief Chemist sent a report of his analysis on 19th November, 1973, reporting that the sample was found adultered under section 2(i)(f) of the Prevention of Food Adulteration Act (hereinafter referred to as "the P.F. Act") and was in breach of Rule 44-A of the rules made under the said Act. 3. It appears that one Jagdish Manoharlal Sharma was said to be the owner of that shop. He was arranged as applicant No. 2 in the case. It appears from the judgment of the trial Court that the trial proceeded only against the present applicant as the accused No. 2 Jagdish Sharma was not traceable. The defence of the applicant was that he was not the servant in the shop of Jagdish Sharma, and that he was called by the Food Inspector as the owner was not there. The owner of the shop i.e. accused No. 2 did not come for a long time though he was sent for and hence the Food Inspector filed this complaint against the applicant. 4. It appears that after the evidence of the complainant Food Inspector was recorded, charge was framed against the applicant as per Exhibit 15. The owner of the shop i.e. accused No. 2 did not come for a long time though he was sent for and hence the Food Inspector filed this complaint against the applicant. 4. It appears that after the evidence of the complainant Food Inspector was recorded, charge was framed against the applicant as per Exhibit 15. The charge reads as follows :--- "That you on or about 2-10-1973 at about 3-30 p.m. was found to have stored for sale grain containing lakh grains in breach of Rule 44-A of the Rules under Prevention of Food Adulteration Act and thereby committed an offence under section 7(v) of the said Act punishable under section 16-A and also the said grains was found containing damaged grains as defined under section 2(i)(f) of the said Act and punishable under section 16(a)(i) of the said Act". 5. The complainant examined himself and other Food Inspector Shri Shelar. One more witness by name Govindlal was examined but he turned hostile. He was a panch witness to the panchanama Exhibit 22. He denied that the incident narrated in the panchanama Exhibit 22 had taken place in his presence. The prosecution upon the certificate of the Chief Chemist. He declared the result of the analysis to be as follows :--- -------------------------------------------------------------------------------------------------------------------- Serial Name and address Foreign Damaged Lakh No. of of Vendor. matter grains seeds. the (ingganic.) due to Sample. insefts. -------------------------------------------------------------------------------------------------------------------- PDP/4373-74 Shri Mishrilal 2.0 13.0 1.0 Vithaldas Jesoria Aurangabad. In his certificate the Chief Chemist opined that the sample was adulterated within the meaning of section 2(i)(f) of the P.F.A. Act, 1954. He also noted that the percentage of damaged grains (due to insects) was more than permissible limits. Similarly he noted that the sample contained 1.0% of lakh seeds of the sale of which was not permissible as per Rule 44-A of the Rules. Relying on the evidence of the complainant Food Inspector and another Food Inspector Shelar, and the documentary evidence in the case, the learned Magistrate held that the present applicant was in the employment of accused No. 2, on the day of the offence. The learned Magistrate further held that the applicant was proved to have sold the gram to the complainant Food Inspector as alleged and that the same was adulterated within the meaning of section 2(i)(f) of the P.F.A. Act. The learned Magistrate further held that the applicant was proved to have sold the gram to the complainant Food Inspector as alleged and that the same was adulterated within the meaning of section 2(i)(f) of the P.F.A. Act. The learned Magistrate sentenced the application to suffer rigorous imprisonment for one year on each count and to pay a fine of Rs. 2,000/- on each count. Being aggrieved the applicant preferred an appeal in the District Court at Aurangabad. 6. The learned Sessions Judge found that the applicant was required to meet the charge for the offence of storing adultered articles of food containing seeds of lakh and not the charge for the offence of selling adultered articles of food or grain. The learned Appellate Judge was of the view that serious prejudice was caused to the applicant as he had been convicted for having sold adultered article of food and lakh although there was no specific charge to that effect. The learned Sessions Judge, however rejected the contention, raised on behalf of the applicant that he was entitled to acquittal on that ground. He was of the view that this was a fit case in which "a remand is indispensable". He, therefore, allowed the appeal partly, and sent back the case to the trial Magistrate with a direction that he should frame a fresh charge against the applicant stating therein that the applicant stating therein that the applicant had sold an adultered article of food and lakh in contravention of the relevant provisions under section P.F.A. Act, 1954 and the Rules framed there under. He further directed the Magistrate to record the plea of the accused thereafter and to proceed with the trial in accordance with law. 7. Being aggrieved by the order of remand the applicant has preferred this revision application. Mr. R.M. Agarwal, the learned Advocate for the applicant, contended that the applicant was entitled to acquittal on the ground that the charge framed against him was defective. He pointed out that the charge framed against him was defective. He pointed out that the incident namely the alleged purchase of the article from the applicant was of the date on 2nd October, 1973; that the complaint was filed on 5th February, 1974 and the trial Court delivered the judgment on 19th December, 1978. He also pointed out that the Appellate Court decided the matter on 31st July, 1979. He pointed out that the incident namely the alleged purchase of the article from the applicant was of the date on 2nd October, 1973; that the complaint was filed on 5th February, 1974 and the trial Court delivered the judgment on 19th December, 1978. He also pointed out that the Appellate Court decided the matter on 31st July, 1979. The learned Counsel, therefore, submitted that the sword of the prosecution is hanging over the head of the applicant for more than 6 years. That also according to the learned Counsel was the ground for acquitting the accused. Reliance was placed upon the judgment of a Single Judge of this Court reported in (Mohd. Ismail Hasan Mir another v. State of Maharashtra another)1, 1976 U.C.R. (Bom.) 114. That was a case where the accused were prosecuted under section 7 read with section 16, of the Prevention of Food Adulteration Act on the basis of the report of Public Analyst but was convicted on the basis of the report of the Director of the Central Food Laboratory who had found that the sample contained lakh dal. Inspite of the report of the Director of the Central Food Laboratory there was no amendment of the charge and no questions were asked under section 342 on the basis of the certificates of the Director. It was held that the conviction of the accused was bad as they were convicted of an offence for which they were not charged; and that the irregularity could not be cured at the stage of revision. Relying upon this decision, Mr. Agarwal submitted that the application should be acquitted and that the learned Appellate Judge was not justified in remanding the matter. 8. Mr. Agarwal also submitted that the owner of the shop namely accused No. 2 was not proceeded against on the ground that he was not traced and that the present applicant was made a scapegoat. I am not much impressed by the argument that the applicant should have been acquitted on the ground that the charge was defective. It is true in the case of Mohd. Ismail v. State of Maharashtra (supra), the accused was acquitted because of the defective charge. However, the facts there were different. In this case, the irregularity in the charge was sought to be cured at the stage of appeal. It is true in the case of Mohd. Ismail v. State of Maharashtra (supra), the accused was acquitted because of the defective charge. However, the facts there were different. In this case, the irregularity in the charge was sought to be cured at the stage of appeal. The appellate Judge was, therefore, having regard to the circumstances of the case pleased to set aside the order of conviction and order fresh trial after the remand. Mr. Agarwal, however, pointed out that the conviction of the applicant was challenged before the learned Appellate Judge even on merits that the Appellate Judge was not inclined to enter into the merits of the case, observing that the remand was unavoidable in this case. It does appear from the judgment of the learned Additional Sessions Judge that the declined to go into the merits of the case holding that the remand is indisensible. Now one of the infirmities pointed out to me by Mr. Agarwal is that there was no compliance with the mandatory provisions of Rule 17 of the P.F.A. Rules. So far as the material part of Rule 17 is concerned, is in the following terms. "17. The containers of the samples shall be despatched in the following manner, namely: (a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means. (b) The sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means." 9. Mr. Agarwal the learned Counsel appearing for the petitioner submitted that there is no evidence in the case to show that the container of sample for analysis was sent in a sealed packet. He invited any attention to the deposition of Food Inspector Patki in which he said. "On 4-10-1973, I made 3 copies of Form No. VII. I delivered one of the copies along with one sample of the Public Health Laboratory, Aurangabad against a receipt which I produce. He invited any attention to the deposition of Food Inspector Patki in which he said. "On 4-10-1973, I made 3 copies of Form No. VII. I delivered one of the copies along with one sample of the Public Health Laboratory, Aurangabad against a receipt which I produce. On the same day the other copy and specimen of seal was separately give to the said Laboratory by me." It was pointed out by Mr. Agarwal that the Food Inspector did not state in his deposition that the container of sample was sent in a sealed packet. He submitted that the provisions of Rule 17 are held to be mandatory by series of decisions of this Court. He pointed out to some of the decisions. 10. Even though the Food Inspector did not state that the container of sample was sent in a sealed packet, the report of the Public Analyst would have thrown light on the question whether the container of sample was sent in a sealed packet. That report however simply states that he had received a sample of Chana for analysis properly sealed and packet and he found the seal in tact and unbroken. Mr. Agarwal submitted that the seal found to be in tact and unbroken by the Public Analyst was the seal contemplated by Rule 16 of the Rules. Rule 16 enjoins that the bottle, jar or other container has to be completely wrapped in fairly strong thick paper that the twine of thread shall then to be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impression of the seal of the sender. Mr. Agarwal rightly submitted that the container of the sample which is duly sealed as required by Rule 16 has again to be put in a sealed packet and that seald packet together with a memorandum in Form VII in a paper cover has to be addressed to the Public Analyst. Neither from English deposition, nor Marathi deposition of the Food Inspector it can be found that the container of sample was thus put in a sealed packet. The report of the Public Analyst in Form III does not refer to any such sealed packet. It is, therefore, clear that the complainant has not shown that the complied with one of the mandatory provisions in Rule 17 of the Rules. The report of the Public Analyst in Form III does not refer to any such sealed packet. It is, therefore, clear that the complainant has not shown that the complied with one of the mandatory provisions in Rule 17 of the Rules. The applicant is entitled to urged that the analysis of the sample by the Public Analyst and his subsequent conviction is vitiated for non-compliance of mandtory provisions in Rule 17. 11. The learned Public Prosecutor for the State submitted that the two courts below have not gone into the points as regards the non compliance of Rule 17 and that, therefore, this Court sitting in revision has no jurisdiction to interfere in revision. I am unable to accept this submission. As held by this Court in a number of decisions the provisions in Rule 17 of the Rules have to be strictly observed and non compliance with those provisions would result in serious infirmity in the prosecution case. Having regard to the infirmity discussed above namely the non-compliance of the mandtory provisions of Rule 17, I am inclined to hold that no useful purpose will be served by remanding the matter, as ordered by the learned Appellate Judge. The applicant, therefore, is entitled to acquittal. 12. In the result, this revision application is allowed. The order or conviction and sentence recorded against the petitioner by the learned trial Magistrate and the order of remand made by the learned Additional Sessions Judge, are set aside. 13. The petitioner is acquitted of all the charges levelled against him. The fine if paid by him shall be refunded to him. Rule absolute. The bail bond stands cancelled. -----