J. P. DESAI, J. ( 1 ) MR. D. F. Amin learned advocate appears for. Mr. B. K. Amin for the petitioner in this Revision Application. while the learned Additional Public Prosecutor Mr. S. R. Divetia appears for the State. The learned advocate Mr. N. M. Amin appears for Mr. S. N. Shelat for respondent No. 1 the original complainant. ( 2 ) NOW so far as the first point is concerned there does not appeal to be any substance in that contention. This point has been covered by a decision of the Full Bench of the Kerala High Court reported in State of Kerela v. Parameswaran Pillai 1975 Criminal Law Journal 97. It appears from the facts stated in the judgment of the Kerala High Court that the sample was first analysed by the Public Analyst and thereafter it was analysed by the Director of Central Food Laboratory and the report of the Director Central Food Laboratory also showed that the article was adulterated. It Was contended on behalf of the accused that it was a case of marginal difference and therefore the accused was entitled to be acquitted. That contention found favour With the learned Sub-divisional Magistrate who acquitted the accused. The matter was taken in appeal by the State of Kerala and it Was heard by a Pull Bench of that Court. While disagreeing with the view of the learned Sub-Divisional Magistrate the Full Bench has made the following observations at paras. 14 15 16 and 17 of the report:"14 The Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. It does not provide for aggravation of offence based on the extent of contamination. The offence and payment are the same whether the adulteration is great or small. Food pollution even it it be only to he slightest extent if continued in practice would adversely affect the health of every man woman and child in the country. Hence even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them the maxim De Minimis Non Curat ex law does not concern itself about trifles) does not apply to them. 15 The standard fixed under the Act is one that is certain. Hence even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them the maxim De Minimis Non Curat ex law does not concern itself about trifles) does not apply to them. 15 The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard The disadvantages of the resulting unpredictability uncertainty and impossibility of arriving at fair and consistent decisions are great. 16 The Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act. 17 The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and alter consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore the conclusion is that for an article of food when a standard has been fixed under the Act it has to be observed in every detail". The observations made by the Full Bench in the above case clearly go to show that once a standard has been prescribed by law for an article of food and on analysis it is found that it does not conform to the standard so prescribed he sale of such article of food contravenes the provisions of the Act and is an offence punishable thereunder. The observations made at para. 17 clearly go to show that the Government have fixed the standards after due deliberation and after consulting a Committee of competent men and ii is 70r them to give due allowance for probable errors before fixing a standard and they may have done it also and there is no reason to assume otherwise. With respect. I fully agree with the law laid down by the Kerala High Court in the above case. With respect. I fully agree with the law laid down by the Kerala High Court in the above case. ( 3 ) THIS decision came to be referred to before the Supreme Court in the case or Municipal Committee Amritsar v. Hazara Singh 1975 Criminal Law Journal 998 and the Supreme Court has also approved the ratio of the decision of the Kerala High Court. The Supreme Court has reproduced the observations of the Kerala High Court at para. 15 at para. 4 of its judgment. ( 4 ) IN view of the above Full Bench decision of the Kerala High Court with which I am fully in agreement which is again approved by the Supreme Court the submission made by Mr. D. F. Amin that there being marginal difference the accused is entitled to benefit of doubt deserves to be rejected. ( 5 ) IT was contended before the learned Additional City Sessions Judge that there was breach of the mandatory provisions of Rule 16 (d) of the Rules in that the seal used for seal the sample and the outer cover was of the Municipal Corporation and not of the complainant. This contention has been rejected by the learned Additional City Sessions Judge after discussing the relevant rule and the evidence on that point. The relevant discussion is made by the learned Additional City Session Judge at paras. 12 to 16 of his judgment. The learned advocate Mr. D. F. Amin has not urged that the view taken by the learned Additional Sessions Judge so far as this aspect is concerned is in and way in correct. ( 6 ) THE first contention raised by him is that even though the sample was taken in the presence of a panch according to the complainant the panch has not been examined and therefore it cannot be said to have been proved that the sample was taken in the presence of a panch as provided by sec. 10 (7) of the Act and. therefore. there is breach of the provisions of sec. 10 and therefore also the prosecution must fail. Now this contention was urged before the learned Metropolitan Magistrate. It was also raised in the memo of appeal but not pressed. The petitioner is. therefore. not entitled to raise the same in this petition. I however propose to consider the same looking to the importance thereof. 10 and therefore also the prosecution must fail. Now this contention was urged before the learned Metropolitan Magistrate. It was also raised in the memo of appeal but not pressed. The petitioner is. therefore. not entitled to raise the same in this petition. I however propose to consider the same looking to the importance thereof. The learned Metropolitan Magistrate relying upon a decision of this Court in Manka Hari v. State of Gujarat 8 G. L. R. 588 has taken the view thai though it was necessary as per sec. 10 (7) of the Act that the Food Inspector should keep one or more persons present at the time of taking the sample at was not necessary that the panch should be examined before the Court. This view of the learned Metropolitan Magistrate with respect does not appear to be a correct one. The provisions of sec. 10 (7) regarding keeping one or more persons present at the time of taking the sample would be rendered illusory if it is taken that the Food Inspector is not bound to examine that person as a witness at the trial. It seems that the learned Metropolitan Magistrate with respect to him. has not carefully read the judgment of this Court upon which he has relied because it appears from the facts of that case that the panch witness was examined but he did not support the prosecution story. That is a different aspect altogether. If a panch is examined and does not support the prosecution then in a given case conviction can be based on the sole testimony of the Food Inspector also. But the prosecution cannot say that even though the sample was taken in the presence of a panch they will not examine him and rest contented with examining the complainant. Prima facie. therefore one would find much substance in the submission of Mr. D. F. Amin that the prosecution must fail because the panch has not been examined. But in the present case it is pertinent to note that the record and proceedings of the Courts below show that efforts were made to trace the panch but he was not available and it was in these circumstances that the panch was not examined. D. F. Amin that the prosecution must fail because the panch has not been examined. But in the present case it is pertinent to note that the record and proceedings of the Courts below show that efforts were made to trace the panch but he was not available and it was in these circumstances that the panch was not examined. If the prosecution had dropped the panch without making any effort to trace him then it can be said that the prosecution without any reason whatsoever failed to examine the panch. When here it appears that efforts were made more than once to trace the panch and the panch could mat be traced then it cannot be said that the prosecution must fail simply because the panch is not examined. The learned Metropolitan Magistrate has relied upon the evidence of the complainant and I would like to mention here even at the cost of repetition that the learned advocate who appeared for the appellant before the Appellate Court did not advance any argument so far as this aspect is concerned. This shows that this contention was not even pressed before the learned Additional City Sessions Judge. We may not say that simply because that contention was not pressed before the Appellate Courts the petitioner should not be allowed to raise that contention in this petition but when the learned Metropolitan Magistrate has relied upon the evidence of the Food Inspector and that finding is not disturbed by the learned Additional City Sessions Judge as no request was made to him to disturb that finding. I do not think that it will be proper for this Court to take the view that because the panch is not examined in the present case in the above circumstances the prosecution must fail. It is difficult to accept the contention of Mr. Amin that because the Panch is not examined the prosecution cannot be said to have established that the sample was taken in presence of the panch. The evidence of the Food Inspector which is accepted by the learned Metropolitan Magistrate and not sought to be disturbed in appeal establishes this fact. Hence I am inclined to reject this submission advanced on behalf of the petitioner. ( 7 ) THE Revision Petition is therefore dismissed. The evidence of the Food Inspector which is accepted by the learned Metropolitan Magistrate and not sought to be disturbed in appeal establishes this fact. Hence I am inclined to reject this submission advanced on behalf of the petitioner. ( 7 ) THE Revision Petition is therefore dismissed. The bail bonds executed by the petitioner are hereby cancelled and the petitioner is directed to surrender before the Trial Court within four weeks from today. He should surrender before the Court on 22/03/1985 (PAP) petition dismissed .