Order The accused in M.F10/78 on the file of the Court of the III Metropolitan Magistrate, George Town, Madras, who were the appellants in Crl.A.No. 145/80 on the file of the VI Additional Sessions Judge, Madras, have directed this criminal revision challenging the legality, correctness and propriety of the judgment of the lower appellate Court confirming the judgment of the trial Court convicting the revision-petitioners under Sec.16(1)(a)(i) read with Secs.7(1) and 2(ia)(b) of the Prevention of Food Adulteration Act (hereinafter referred to as ‘the Act’) and sentencing them each to suffer simple imprisonment for six months and to pay a fine of Rs.1,000, in default to undergo simple imprisonment for three months. 2. Both the revision petitioners, who were arrayed as accused 1 and 2 before the trial Court, were tried for the aforesaid offences on the allegations that on 9th February, 1978 at about 11.05 a.m. at the Southern Railway Departmental Snack Stall situated in the Circulating area of the Central Railway Station, the first petitioner (accused 1) was found in possession of chocolate burfies and other sweet meats for sale to the Southern Railway Departmental Snack Stall and that the complainant, in the presence of P.W.2, purchased 42 pieces of the above said burfies weighing 1500 grams, on serving Ex.P1 the form VI notice, on the first petitioner for purposes of analysis, for a sum of Rs.25-20 under the acknowledge Ex.P2, after observing all the statutory formalities, and divided the food article into three equal parts put them in three clean and dry plastic bags sent one part to the Analyst and deposited the other two parts with the Divisional Medical Officer and Local (Health) Authority, Madras Division. On analysis, the Analyst found the food article to contain tin foil and he gave his opinion that the sample contained tin foil as part of the food and that it was an adulterant as defined in Sec.2(i) of the Act. On receipt of the analyst's report, Ex.P7, P.W.1 filed a complaint before the Court on 15th March, 1978 and immediately after the institution of the complaint, he served a notice as required under Sec.13(2) of the Act read withR.9-A of the Rules framed under the Act, on both the petitioners on 16th March, 1978. On receipt of the analyst's report, Ex.P7, P.W.1 filed a complaint before the Court on 15th March, 1978 and immediately after the institution of the complaint, he served a notice as required under Sec.13(2) of the Act read withR.9-A of the Rules framed under the Act, on both the petitioners on 16th March, 1978. It seems that this case was originally tried before the VIII Metropolitan Magistrate, George Town, Madras, who convicted and sentenced the petitioners, on their plea of guilt, but the convictions and sentences were set aside by the learned II Additional Sessions Judge, Madras, on an appeal preferred by the accused (petitioners herein), on the ground that both of them did not understand the language in which the questions put to them were couched and that they were not assisted by any counsel. Thereupon, the case was tried by the III Metropolitan Magistrate. On the side of the prosecution, P.Ws.1 to 3 were examined and Exs.P1 to P9(a) were filed and M.Os.1 and 2 were marked. On the side of the defence D.Ws.1 and 2 were examined and Exs.D1 to D11 were marked. 3. The first petitioner is stated to be an employee of the second petitioner who is a contractor for supply of food articles to the Southern Railway Departmental Snack Stall. The petitioners put forth various contentions, the main of which was that they were protected by the warranty in the form of the bill Ex.D1dated 28th January, 1978. The trial Magistrate rejected the defence case, found both the accused guilty and convicted them as aforementioned. Oh being aggrieved by the judgment of the trial Court, the petitioners preferred an appeal before the lower appellate Court. Before the lower appellate Court, P.W.1 was recalled and examined and one more witness on the side of the defence, viz., D.W.3 was examined. On the side of the prosecution before the lower appellate Court, Ex.P10 was marked. On the side of the defence, Exs.D1to D22 were marked. The appellate Judge, for the reasons assigned in his judgment, confirmed the judgment of the trial Court, upholding the convictions and sentences passed against these petitioners by the trial Magistrate. Hence this revision. 4. Mr.G.Gopalaswami, learned counsel appearing on behalf of the revision petitioners, submitted that the judgments of both the Courts suffer from the manifest illegality and as such the convictions and sentences cannot be sustained. Hence this revision. 4. Mr.G.Gopalaswami, learned counsel appearing on behalf of the revision petitioners, submitted that the judgments of both the Courts suffer from the manifest illegality and as such the convictions and sentences cannot be sustained. In support of the above submission, he raised the following contentions: (1) The convictions recorded by the trial Court, as confirmed by the appellate Court, cannot be sustained since the petitioners have satisfactorily established by leading sufficient evidence, both oral and documentary, proving that he sold the food article in the same state as he purchased it from Vijay Sales Corporation, manufacturers and suppliers of silver leaves, safran dry prints, jam and food products, Civil Line, Saharanpur, Uttar Pradesh, as could be seen from the bill Ex.D1issued by the said Sales Corporation in favour of Brijbasi Mithaiwallah, a partnership firm, consisting of two partners, viz., (1) Dwaraka Prasad, the second petitioner herein, and (2) one Ramesh Chandra Agarwal (D.W.1), which bill served as a warranty. (2) As the prosecution has not proved that the food article contained the metal viz.,tin in excess of the quantity specified in column 3 of the Tables given underR.57 of the Rules framed under the Act, showing that the said article contained more than 250 parts per million by weight, in which case alone the penal provisions of the Act would be attracted, both the Courts below were not correct in recording the convictions against both the revision petitioners. (3) As the charge framed as against these two accused, persons for the commission of the offence specified only Sec.2(ia)(b) , when it is admitted by P.W.3 himself that the definition of the offence would fall only under the definition clause coming under Sec.2(ia)(h), the convictions are liable to be set aside, on the ground that the charge is defective. (4) No proper notice in Form VI, as required under Sec.11(1)(a) of the Act has been served on the second petitioner, because his signature (marked as Ex.P1(a)) has been obtained only on 10th February, 1978 on Ex.P1 which has been prepared on 9th February, 1978, and on which the signature of the first petitioner has been obtained, especially when the article of food itself has been received by the Analyst even on 9th February, 1978. 5. Now let us examine the above contentions one by one. 6. 5. Now let us examine the above contentions one by one. 6. The accused petitioners have marked Ex.D1 bill dated 28th January, 1978, through P.W.1; the other three bills viz., Ex.D12, dated 13th August, 1977, Ex.D13, dated 12th July, 1977 and Ex.D14, dated 1st November, 1978, all issued by the Vijay Sales Corporation in favour of Brijbasi Mithaiwallah,iand some more letters, viz., Ex.D15 dated 8th July, 1978, Exs.D16, D17, D18 and D22, which are the correspondence between Brijbasi Mithaiwallah and Vijay Sales Corporation, for the purpose of showing that there were transactions between these two persons. Of these documents, Ex.D20 is a statement for the assessment years 1978-79 and 1979-80 Ex.D21 is the income-tax assessment order.Ex.D19 is the ledger of Brijbasi Mithaiwallah for the year 1977-78. (This document is in Hindi. Counsel Mr.Haridas, who is conversant with Hindi language, states that this document is filed for proving the transactions between Vijay Sales Corporation and Brijbasi Mithaiwallah and also for the purpose of showing that there are entries with regard to the purchase of these alleged silver leaves). Ex.D1, which is mainly relied on by the defence counsel, as I have stated already, is a cash bill issued by Vijay Sales Corporation, in which the particulars of the items sold by the Corporation to Brijbasi Mithaiwallah on 28th January, 1978, are mentioned under the column ‘particulars’, as “Pkts. Silver Leaves Spl”. In the rest of the bills marked at the appellate Court also, it is stated, “Silver leaves”. According to Mr.G. Gopalaswami, the second petitioner, who is one of the partners of Brijbasi Mithaiwallah, used to purchase from Vijay Sales Corporation, silver leaves for the purpose of decorating the sweets by affixing the alleged silver foils on the top, which foils, according to the prosecution, are not silver foils but tin foils, as borne out from the analysis made by the Analyst. He would further submit that the partnership firm of Brijbasi Mithaiwallah purchased this article, viz., the alleged silver foil, which is now stated to be tin foil, only from the Vijay Sales Corporation, who are manufacturers and dealers, under the bill, that the said article of food was properly stored and used by him in the same state as he purchased it from the manufacturers and that therefore the bills Ex.D1 issued at the end of the month of January, 1978, should be deemed to be a warranty as required under the Proviso to Sec.14 andR.12-A of the Rules. 7. Countering the above argument, the learned Additional Public Prosecutor submitted that the petitioners cannot claim this bill as a warranty for the simple reason that the particulars given in the bill read only as ‘silver leaves’, whereas the prosecution has proved that the burfy contained only tin foil and therefore it cannot be said or deemed to have stored and used only the food article in the same state as they purchased it under Ex.D1. 8. Since the accused have taken a specific defence that Ex.D1 serves as a warranty, the burden of proof lies on the accused who are the vendors. Sub-sec.(2) of Sec.19 states that the vendor shall not be deemed to have committed an offence pertaining to any sale of adulterated or misbranded article of food, if he proves that he purchased the article of food under a written warranty and stored it in the same state as he purchased it. Hypothetically saying, a person ‘B’may purchase from the manufacturer or dealer ‘A’ a food article of a specific standard and quality and substitute in its place some other misbranded or adulterated article and sell the same to his purchaser ‘C’ and may cunningly use the bill issued to him by ‘A’ from whom he originally purchased the standard article of food, as a warranty. Similarly ‘B’ may purchase an article of food from ‘A’ under a bona fide belief that the said article of food is of the same standard and quality as described in the bill without being aware of the deception perpetrated by ‘A’ and in that case, if ‘B’ in turn sells the article of food to ‘C’, the innocent ‘B’ would also become liable under the Act because of the fraud played by ‘A’ and in such circumstances only the bill issued by ‘A’ would serve as a warranty. Therefore, we have to examine the facts and circumstances of each case and find out whether the vendor has sold the article of food to his purchaser in the same state as he purchased it from the manufacturer or dealer, as envisaged under Sec.19(2)(b) of the Act or whether he, after having purchased a food article of a particular quality, has substituted the same by some other misbranded or adulterated food in its place and is deceptively claiming protection under the bill issued by the manufacturer or dealer by using it as a warranty as contemplated under the Proviso to Sec.14 of the Act orR.12-A ofthe Rules from thereunder. 9. Now, let us examine the development of the law under the Act relating to warranty, Mr.Gopalaswami took me through the provisions of the Prevention of Food Adulteration Act as it stood in the year 1955 and also the subsequent amendments introduced to the relevant provisions relating to warranty. The Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) came into effect from 1st June, 1955. The Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) came into effect from 1st June, 1955. Sec. 19(2) as enacted in 1955, read as follows: “A vendor shall not be deemed to have committed an offence if he proves; (i) that the article of food was purchased by him as the same in nature, substance and quality as that demanded by the purchaser and with a written warranty in the prescribed form,”if any, to the effect that it was of such nature, substance and quality; (ii) that he had no reason to believe at the time when he sold it that the food was not of such nature, substance and quality; and (iii) that he sold it in the same state as he purchased it; Provided that such defence be open to the vendor only if he has submitted to the Food Inspector or the local authority a copy of the warranty with a written notice stating that he intends to rely on it and specifying the name and address of the person from whom he received it, and has also sent a like notice of his intention to that person. Provided further that the warranty given by a person resident in any area in which this Act is not in force, shall be a defence to the vendor only if the vendor proves to the satisfaction of the Court that he had taken responsible steps to ascertain and did in fact believe in the accuracy of the statement in the warranty’. Subsequently, by Sec.2 of Act 49 of 1964,thcabovc sub-section was substituted by the following Sub-sec, (2), which came into force with effect from 1st March, 1965: “A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves- (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licenced manufacturer, distributor or dealer; (ii) in any other cases, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stated and that he sold it in the same state as he purchased it.” In this connection, I would like to refer to the Proviso which has been added to Sec.14 of the Act by the amendment Act 34 of 1976. The said Proviso to Sec.14, which came into effect from 20th March, 1976, reads as follows: “Provided that a bill, cash memorandum or invoice in respect of the sale of any articleof food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section”. Rule 12-A which was inserted by S.R.O.2755, dated 24th January, 1956, and substituted by G.S.R. 1533, dated 6th July, 1968 reads as follows: “Every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form VIA”. Rule 12-A which was inserted by S.R.O.2755, dated 24th January, 1956, and substituted by G.S.R. 1533, dated 6th July, 1968 reads as follows: “Every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or label, a warranty in Form VIA”. As I have stated supra, the Proviso to Sec.14 which came into force from 20th March, 1976, is subsequent to the introduction ofR.12-A and as per this Proviso to Scc.14, “a bill, cash memorandum or invoice, in respect of the sale of any article of food given by a manufacturer, distributor of or dealer in, such article to the vendor thereof shall be deemed to be a warranty.” In other words, such a bill can be deemed to be a warranty as given in Form VI-A. The reason and object for introducing this proviso as stated in the Joint Committee Report, is as follows: “Sec.14 of the Principal Act imposed obligations on every manufacturer, distributor or dealer to give a warranty in writting in respect of the nature and quality of every article of food sold by him to a vendor. During the course of evidence tendered before the committee representatives of the retailers represented that the requirement of the law was not being followed by the manufacturers or dealers, as a result of which the vendors had to suffer. The Committee has remedied the situation by inserting a proviso to the section to the effect that a bill, cash memo or invoice given by a manufacturer, distributor or dealer in respect of any article of food purchased by the vendor shall be deemed to be a warranty.” Thus, we can find from the various provisions extracted above that there has been a development in the law with regard to warran ty and subsequently the above Proviso to Scc.14 was introduced for the reasons mentioned in the report of the Joint Committee. In this connection, I would like to refer to the decision in Chanduri Gopalakrishna Murthi v. State (1978) MLJ.(Crl) 529, wherein a learned single Judge of the Andhra Pradesh High Court, before whom the Proviso to Sec.14 came up for interpretation, observed as follows: “A reading of the proviso shows that a bill, cash memo or invoice in respect of the sale of any article of food given by the manufacturer or distributor or dealer in such article to the vendor thereof shall be deemed to be a warranty given by the manufacturer, distributor or dealer under that section”. In this case, it is found that the cash bill Ex.D1 was given to the accused by the manufacturer of the peppermint. If so, it would be deemed to be a warranty in writing in the prescribed form given by the manufacturer under Sec.14. If he had produced a warranty, there is no question of penalising him…….The Proviso does not say that the cash bill should be in accordance withR.12-A. If a bill is given in terms ofR.12-A then that itself is the warranty and there is no question of deeming it to be a warranty under the proviso to Sec.14. On the other hand, the Proviso to Sec. 14 makes it clear that if a bill is given for the sale of an article, by the manufacturer, it would be deemed to be a warranty given by the manufacturer.” The Supreme Court in B.P.Andre v. The Superintendent, Central Jail (1975) S.C.C(Crl) 70:(1975)1 S.C.C. 392:(1975) Crl.L.J. 182: A.I.R. 1975 S.C. 164, has defined the term “deeming” while interpreting Sec.484 of the Criminal Procedure Code, 1973 (Act 2 of 1974). The relevant portion of the judgment reads as follows; “Sentence of imprisonment and fine passed against the petitioner under the provisions of the old Code of Criminal Procedure must, therefore, be deemed to have been passed under the corresponding provisions of the new Code of Criminal Procedure. It is now well-settled that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion”. Following the above interpretation, we have to hold in the present case that when the proviso states that a bill or cash memo, etc., should be deemed to be a warranty, it must be given full effect as a warranty as contemplated inR.12-A. 10. Following the above interpretation, we have to hold in the present case that when the proviso states that a bill or cash memo, etc., should be deemed to be a warranty, it must be given full effect as a warranty as contemplated inR.12-A. 10. Now, let me examine whether the accused have proved that they stored and sold only the article of food purchased from Vijay Sales Corporation in the same state as they purchased it or whether they substituted some other food in the place of the alleged silver leaves described in the bill Ex.D1. The following are the points in favour of the accused-petitioners: (1) It is not in dispute that Ex.D1 is not the bill issued by Vijay Sales Corporation. (2) Similar to the bill Ex.D1 the accused have exhibited Exs.D12 to D15 showing that even in the years 1977and 1978,i.e.,before the alleged date of the offence and afterwards, the accused have been purchasing silver foils from Vijay Sales Corporation. (3) The ledger Ex.D19, which is in Hindi, contains, as stated by Mr.Haridas, learned counsel appearing on behalf of the petitioner, an entry showing that the accused purchased silver foil from Vijay Sales Corporation. Under the column “trial balance” of the statement of account for the assessment year 1979-80, there is an entry in the name of Vijay Sales Corporation, showing that there were transactions between these two. There are also number of letters exchanged, showing that there were transactions between Brijbasi Mithaiwallah, of which the second petitioner and another are partners and Vijay Sales Corporation. (4) It is not the case of the prosecution that the second accused or the partnership firm is dealing in the preparation of silver foils or tin foils. (5) The case of the prosecution is that the second petitioner is only a contractor for supply of sweetmeats and savouries to the Southern Railway Departmental Snack Stall. (6) The partnership firm was not searched by the Food Inspector and there is no evidence that the revision petitioners were dealing in tin foils. (7) D.W3 examined before the appellate Court has given evidence that the purchased the alleged silver foils from Vijay Sales Corporation and stored and used them as a decorative by affixing the foil on the burfies in the same state as they purchased them from Vijay Sales Corporation.” 11. (7) D.W3 examined before the appellate Court has given evidence that the purchased the alleged silver foils from Vijay Sales Corporation and stored and used them as a decorative by affixing the foil on the burfies in the same state as they purchased them from Vijay Sales Corporation.” 11. All the above points which stand in favour of the defence case, when considered would show that the preponderance of probability is only in favour of the accused. Under these circumstances, in the absence of any other contrary evidence on the side of the prosecution, one cannot jump to the conclusion that the petitioners have substituted tin foil in the place of the silver foil and that they have not stated the food article purchased from Vijay Sales Corporation in the same state as they purchased it. Therefore, the bill Ex.D1 can be deemed to be a warranty in the present case as contemplated under the Proviso to Sec. 14 of the Act. 12. Now, I shall pass on to the next submission. According to the prosecution, the food article was affixed with the tin foil as a decorative. The allegation in the complaint on this aspect reads thus: “The result of analysis revealed that the metal foil covering the sample is found to be of tin and not silver and the Public Analyst is of the opinion that the sample contain tin foil as part of the food and it is an adulterant as defined under Sec.2(i) of the P.F.A. Act, 1954.” Under the column “Analysis done” in Ex.P7, the Analyst's report, it is stated: “Examination of the metal foil covering the sample”. Under the column “Results”, it is stated: “The foil is found to be of tin and not silver”. Under the column ”Remarks“ it is mentioned:” Only Silver leaf, food grade is permitted to be used“. Finally the Analyst has given his opinion that the sample contained tin foil as part of the food and that it is an adulterant as defined under Sec.2(i). Under the column ”Remarks“ it is mentioned:” Only Silver leaf, food grade is permitted to be used“. Finally the Analyst has given his opinion that the sample contained tin foil as part of the food and that it is an adulterant as defined under Sec.2(i). What the Analyst who has been examined as P.W.3, would depose is that only silver leaf food grade is permitted to be used as food and not the leaf of any other metal and that the adulterant was present not as free metal but as a soluable metallic salt in this case, that tin is poisonous to health and that the quantity of tin in metallic salts allowed in an article of food as perR.57(2) under item 4, is mentioned as 250 parts per million by weight, i.e., 250 mg. that is to say, one-fourth of a gram in a kilogram of an article of food. In the cross-examination, P.W.3 has admitted that he did not analyse the sample personally and that the same was analysed by one Govindarajuly, Junior Analyst under the personal direction of Mr.M.V. Narayanan, Deputy Government Analyst, that he was present when the analysis was done and that he did not weigh the foil, because it was not necessary to do so. Then he would state as follows: “The whole sample was analysed. There was no separate requisition for analysis of the foil on the burfi. The foil was analysed separately. The foil was taken out from the burfi and analused…R.57(1) classifies tin as a poisonous metal and therefore the presence of tin in the sample contravenes Sec.2(ia) clause (h) andR.57(1) of the Prevention of Food Adulteration Rules, “I have recommended prosecution under Sec2(ia) of the P.F.A. Act I do not know whether the prosecution is under Sec.2(ia)(h) of the said Act, I have not recommended the prosecution under Clause (h) of the Act. Cooking vessels are coated with tin. I did not weigh the metal foil as it was an intimate admixture with the sample. It could not be quantitatively sharped…..The analysis of the sample was qualitive and not quantitative”. Nowhere in the analyst's report it is stated that the analysis was only the analysis of the burfi admixtured with the metal foil. But, on the other hand, the report states that the metal covering the food article was analysed. It could not be quantitatively sharped…..The analysis of the sample was qualitive and not quantitative”. Nowhere in the analyst's report it is stated that the analysis was only the analysis of the burfi admixtured with the metal foil. But, on the other hand, the report states that the metal covering the food article was analysed. As I have pointed out supra, the averments in the complaint also read to that effect. Presumably since the report does not give the data, the Analyst has now come forward with the case that the metal foil was so intimately admixtured with the burfi and that the metal was not free but was there as a soluble metallic salt.R.57(1) reads that the chemicals described in monographs of the Indian Pharmacopoeia when used in foods, shall not contain poisonous metals beyond the limits specified in the appropriate monographs of the Indian Pharmacopoeia for the time being in force.R.57(2), which is relevant for our purpose, reads thus: “Notwithstanding the provisions of Sub-rule (1), no article of food specified in Column 2 of the table below shall contain any metal specified in excess of the quantity specified in Column 3 of the said table:” Item 4 under column (1) (Name of the poisonous metal), is “Tin”. Under column (2), viz., ‘Article of food’, against item 4, it is mentioned as “Foods not specified” as sub-item (ii). Burfi would come under this heading ‘foods not specified’. In that case, the parts per million by weight should not exceed 250, as seen from the particulars mentioned under column (3) against this item. In the present case, the Analyst's report does not give the data as to whether the article of food contained more than 250 parts per million by weight of tin or less than that. As per the rule, the article of food should not contain more than 250 parts per million by weight of tin metal. Only in case of an article of food contains more than 250 parts per million by weight of tin, it would attract the operation of the provisions of the Act. If it is not more than 250 parts per million, then it would not be an offences within the provisions of the Act or the Rules. 13. Only in case of an article of food contains more than 250 parts per million by weight of tin, it would attract the operation of the provisions of the Act. If it is not more than 250 parts per million, then it would not be an offences within the provisions of the Act or the Rules. 13. In this connection, I would like to refer to the judgment of a Division Bench of the Kerala High Court in State of Kerala v. Narayanan Nair (1969) MLJ. (Crl.) 761, wherein it has been held as follows: “It has repeatedly been laid down that the certificate of the Analyst should contain the actual data and not merely his opinion as to what the data indicated about the nature of the article.” The facts of the case which came up before the Kerala High Court in the above decision were that no data had been furnished by the Director in his certificate and that the analysis relied on by the Director was neither qualitative nor quantitative as was seen from the certificate. In those circumstances, it was further observed that the purpose of chemical analysis is to determine the composition of the substance and that of qualitative analysis is to identify the element and that of quantiative analysis is to determine the precise amount of elements. As there was no indication about the composition of the substance or the identification of the elements or the precise amount of elements, the Bench held that the expert should have put before the Court the materials which induced him to come to his conclusion that the Court might form its own conclusion so that the Court might form its own conclusion on those materials. As in the above case, in the present case also no data worth the name has been furnished by the Analyst in the certificate. It is not mentioned in the certificate whether the analysis was qualitatively or quantitatively made. This Analyst, in my view, has tried to justify his report by saying that the metallic foil had intimately got admixtured with the article of food, which too is not revealed in the certificate Ex.P7 and that the food was analysed in his presence by a junior analyst under the directions of the Deputy Government Analyst and it was done qualitatively. Whatever may be the reasons given by the Analyst, as the certificate Ex.P7 does not give the data, this Court is not in a position to find out whether the tin metal exceeded 250 parts per million toy weight in the article of food analysed or whether it contained only less than 250 parts per million. Further, there is no proof that the article of food contained more than 250 parts per million by weight of tin metal. Therefore, on this ground also the prosecution has to fail as not having satisfactorily proved that the quantity of tin metal than what is specified in the table given underR.57. 14. The next submission is with regard to the defect in the charge. As per the charge both the accused stood charged for an offence punishable under Secs.7(1) and 16(1)(a)(i) read with 2(1) and 2(ia)(b). According to the Analyst, the proper section of the charge ought to have been Sec.2(ia)(h) and not Sec.2(ia)(b) , because, according to Sec.2(ia)(b) an article of food would be adulterated if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof. According to Cl.(h), an article of food would be deemed to be adulterated if the article contains any poisonous or other ingredient which renders it injurious to health. Of course, a case need not fall merely on the ground that the charge is defective, and if an accused is not shown to have been prejudiced in any way by the defective charge, the Court can rectify the charge at any stage of the proceedings and sustain the conviction. However, I feel that it is not necessary to go into this revision on the conclusions arrived at by me on the first and second contentions of the petitioners. 15. The last contention is that no proper notice as required under Sec.11(1)(a) of the Act has been served on the second petitioner. The service of Form VI notice on the servant would have been sufficient as a notice to the owner of the shop; but in the present case though the Food Inspector P.W.1 has taken the sample on the 9th February, 1978, and sent the same to the Analyst on the same day, as seen from ExP7 itself. The service of Form VI notice on the servant would have been sufficient as a notice to the owner of the shop; but in the present case though the Food Inspector P.W.1 has taken the sample on the 9th February, 1978, and sent the same to the Analyst on the same day, as seen from ExP7 itself. P.W.1 has taken the signature of the second petitioner on 10th February, 1978, on the reverse of Form VI when the latter had been to his office, thereby intimating that the article of food purchased from the first petitioner was for analysis. As I have pointed out supra, even without obtaining the signature of the second petitioner, who is the owner of the article of food, in Form VI, the article could have been sent for analysis and the second petitioner would also then make himself liable to be punished since the first petitioner, through whom the article of food was sold by the second petitioner, has been served with Form VI notice. Therefore, this submission does not assume much significance. 16. In the result, as I have come to the conclusion that Ex.D1 serves as a warranty and as the report of the Analyst does not contain the data helping this Court to arrive at a conclusion that the article of food contained tin foil in excess of the permitted limit of 250 parts per million by weight, I am of the view that the prosecution has to fail. Both the Courts below have not approached the case on this legal aspect in the proper perspective, which has resulted in causing injustice to the petitioners. 17. Accordingly, this revision is allowed, the convictions and sentences are set aside and both the petitioners are acquitted. Fine amounts, if paid, are directed to be refunded to them.