K. P. MOHAPATRA, J. ( 1 ) THE order of the learned Additional Sessions Judge, Berhampur, upholding the conviction and sentence of the petitioner under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act (for short, 'the Act') is under challenge. ( 2 ) SHORN of unnecessary details the prosecution case stated in brief is that the petitioner owns a grocery shop at Kalingia in Phulbani district. On 18-2-1978, Food Inspector, Phulbani (P. W. 2) inspected the grocery shop and suspected common salt exposed for sale for human consumption to be adulterated. Therefore, he made statutory purchase of 750 grams of that commodity on payment of price and after observance of the formalities according to rules, divided the same into three equal parts and kept each part separately in dry clean bottles, sealed and labelled them and sent one of the samples for examination by the public analyst. The public analyst reported in his report (Ext. 5) that the sample of common salt was adulterated. After obtaining the consent of the Chief District Medical Officer, Phulbani, prosecution was launched against the petitioner. ( 3 ) THE plea of the petitioner was a denial of the entire episode connected with the prosecution case, but the learned Judicial Magistrate, who held the trial and the learned Additional Sessions Judge, who heard the appeal, held concurrently that the Food Inspector (P. W. 2) had purchased common salt from the grocery shop of the petitioner which was found to have been adulterated after chemical examination by the public analyst in his report, Ext. 5. Therefore, the petitioner was convicted for the offence under S. 16 (1) (a) (i) of the Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-, in default to undergo rigorous imprisonment for a further period of one month. ( 4 ) MR. U. C. Panda, learned counsel appearing for the petitioner, strenuously urged that the trial was vitiated for non-compliance of the mandatory provisions of Ss. 10 (7), 13 (2) and 20 of the Act and R. 18 of the Prevention of Food Adulteration Rules (for short, 'the Rules' ). The legal argument requires careful analysis. ( 5 ) THE first point for consideration is whether the mandatory provisions of S. 10 (7) have been complied with by the prosecution or not. 10 (7), 13 (2) and 20 of the Act and R. 18 of the Prevention of Food Adulteration Rules (for short, 'the Rules' ). The legal argument requires careful analysis. ( 5 ) THE first point for consideration is whether the mandatory provisions of S. 10 (7) have been complied with by the prosecution or not. At the outset, in this connection, I would quote the following from a decision of this Court in Criminal Revn. No. 403 on 1982 (Bhagirathi Das v. State of Orissa) for elucidating the principle relating to the mandatory character of S. 10 (7) of the Act : Reported in (1986) 2 Orissa LR 691. "the second contention relates to noncompliance of mandatory provisions of S. 10 (7) of the Act according to which the Food Inspector shall at the time of inspection, collection and seizure of samples from any shop premises call one or more persons to be present and take his or their signature (s ). In this connection reference has been made to three decisions, such as AIR 1974 SC 789 , Ram Labhaya v. Municipal Corporation of Delhi, (1986) 62 Cut LT 426, Bijoy Kumar Singh v. State of Orissa and (1986) 62 Cut LT 480, Kedar Prasad Gupta v. State, in all these cases it has been held that S. 10 (7) of the Act is mandatory. The Food Inspector must draw and secure the presence of one or more independent persons when he takes action under any of the provisions mentioned in sub-sec. (7) of Section 10. But as he cannot compel their presence and if such witnesses when called do not come forward to remain present, then the prosecution must be relieved of its obligation under the provisions and in such cases non-compliance of S. 10 (7) shall not vitiate the trial. In such cases if the evidence of the Food Inspector is found to be truthful, reliable and credible, there is no impediment cast on the court not to believe his evidence so as to base the conviction. " (Also see Criminal Revn. No. 9 of 1982 (Mangulu Sahu v. State of Orissa) decided on 21st Nov. , 1986 ). In such cases if the evidence of the Food Inspector is found to be truthful, reliable and credible, there is no impediment cast on the court not to believe his evidence so as to base the conviction. " (Also see Criminal Revn. No. 9 of 1982 (Mangulu Sahu v. State of Orissa) decided on 21st Nov. , 1986 ). ( 6 ) NOW coming to the facts of the case, the Food Inspector (P. W. 2) has stated in his evidence that at the time of his inspection of the shop of the petitioner, three to four persons were present, but they were reluctant to be witnesses. Therefore, in the presence of P. W. 1, the sample of common salt was collected. This aspect of the case had been examined both by the learned Judicial Magistrate, as well as the learned Additional Sessions Judge who found that there was no violation of the provisions of S. 10 (7) of the Act. On the ratio of the principle enunciated above, the Food Inspector (P. W. 2) could not compel the presence of independent persons as witnesses although he had made an attempt for it. So in the facts and circumstances of the case, it must be found that the prosecution was relieved of its obligation for securing presence of independent witnesses at the time of making statutory purchase of the sample of common salt. This apart, there are no other materials to show that the statutory purchase was of doubtful character or that the Food Inspector (P. W. 2) never made any such purchase. Therefore, I cannot but arrive at the conclusion that there was no infraction of the mandatory provisions of S. 10 (7) of the Act. ( 7 ) THE second contention is non-compliance of the provisions of S. 13 (2) of the Act having the effect of vitiating the trial in its entirety, as well as causing grave prejudice to the petitioner. ( 7 ) THE second contention is non-compliance of the provisions of S. 13 (2) of the Act having the effect of vitiating the trial in its entirety, as well as causing grave prejudice to the petitioner. According to sub-section (2), on receipt of the report of the result of the analysis from the public analyst to the effect that the article of food is adulterated, the local health authority (in this case the Chief District Medical Officer, Phulbani) shall, after institution of the prosecution against the person from whom the sample of the article of food had been taken, forward in the prescribed manner a copy of the report of the result of the analysis to such person informing him that if it is so desired he may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. In Criminal Revn. No. 403 of 1983 (supra), Section 13 (2) of the Act was held to be of mandatory character. (Also see (1986) 1 Orissa LR 421, State of Orissa v. Jeeban Lal, and Criminal Revn. No. 297 of 1982, Khiralal Khuntia v. State of Orissa decided on 27-10-1986 ). ( 8 ) SURPRISINGLY, the prosecution did not adduce any documentary evidence to establish that a copy of the report of the public analyst (Ext. 5) was delivered to the petitioner in the manner prescribed in R. 9-A of the Rules. The office copy of the forwarding letter was neither produced nor proved according to law. No document in the shape of a receipt was either produced or proved indicating the petitioner had received a copy of Ext. 5. The learned Additional Standing Counsel drew my attention to Ext. 6, a postal receipt, and urged that a copy of Ext. 5 was delivered at the post office and in due course it must have reached the destination so as to be delivered to the petitioner. The postal receipt, Ext. 6, does not prove anything beyond the fact that some article was delivered at the post office and a receipt was granted. 5 was delivered at the post office and in due course it must have reached the destination so as to be delivered to the petitioner. The postal receipt, Ext. 6, does not prove anything beyond the fact that some article was delivered at the post office and a receipt was granted. It does not prove as to what was contained in the article which was delivered at the post office, much less the fact that the article contained a copy of the report of the public analyst (Ext. 5) along with the forwarding letter of the local health authority. In other words, on the basis of the postal receipt and without specific proof, no inference can be drawn that a copy of the report of the public analyst (Ext. 5) was delivered to the petitioner. I am therefore bound to conclude that a copy of the report of the public analyst (Ext. 5) was not delivered to the petitioner for compliance of the mandatory provisions of S. 13 (2) of the Act read with R. 9-A of the Rules. ( 9 ) THE third contention of Mr. Panda is that there was non-compliance of the provisions of S. 20 of the Act which lays down that no prosecution for an offence under the Act, not being an offence under S. 14 or S. 14-A, shall be instituted except by, or with the written consent of the Central Government or the State Government, or a person authorised in this behalf. According to him, before giving consent, there must be application of mind by the authority giving the consent. ( 10 ) IN AIR 1961 SC 1 (State of Bombay (Now Gujarat) v. Parshottam Kanaiyalal), Hidayatullah, J. (as he then was) spoke for the Court and held :"in the first place, the reason of the rule could not suggest or imply such a condition. The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecution against traders. It therefore provides that the complaint should be filed, either by a named or specified authority or with the written consent of such authority. The rule has undoubtedly been designed to prevent the launching of frivolous or harassing prosecution against traders. It therefore provides that the complaint should be filed, either by a named or specified authority or with the written consent of such authority. To read by implication that before granting a written consent, the authority competent to initiate a prosecution should apply its mind to the facts of the case and satisfy itself that a prima facie case exists for the alleged offender being put up before a Court appears reasonable, but the further implication that the complainant must be named in the written consent does not, in our opinion, follow. "in a later decision reported in AIR 1970 SC 318 (Dhian Singh v. Municipal Board, Saharanpur), it was held as follows :"under S. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question. "apparently, (different view was taken giving an impression that under S. 20 no question of applying one's mind to the facts of the case before the institution of complaint arises. But it has to be remembered that the pointed question before their Lordships was whether the Municipal Board could be regarded as the complainant for the purpose of S. 471 (3) of the Cr. P. C. That apart, the earlier decision referred to above was not noticed. Therefore, it can at best be said that their Lordships decided the case on the facts of its own without laying down a general principle that under Section 20 of the Act the question of application of mind of the authority giving consent does not at all arise. In (1973) 1 Cut WR 48: 1973 FAC 57, (Sanatan Sahu v. The Puri Municipality) this Court held that the written consent required under S. 20 of the Act is not an empty formality. In (1973) 1 Cut WR 48: 1973 FAC 57, (Sanatan Sahu v. The Puri Municipality) this Court held that the written consent required under S. 20 of the Act is not an empty formality. It should indicate that the authority or the person giving the written consent was himself satisfied about the correctness of the allegations against the accused. So, the Court before proceeding with the case must be satisfied that the authority or the competent person, as per S. 20 of the Act, has actually applied its mind and has given the consent required under that section. So long the Court does not find any such written consent to support the prosecution report, it cannot take cognisance of an offence under the Act and consequently cannot proceed with the trial of an offender for an offence thereunder. The ratio of this decision was relied upon by the Madras High Court in a case reported in (1986) 2 FAC 187 (State v. Appuswami ). After review of a large number of decisions of different High Courts, the Gauhati High Court laid down an identical principle in (1986) 2 FAC 301 (Kamala Prashad Agarwal v. Sarat Chandra Bora) and held that written consent or sanction under Section 20 of the Act must be specific and is not an empty formality. The sanction must show that the authority giving the sanction had applied his mind to the alleged commission of an offence by the accused who has to be prosecuted for the said offence. An identical view was also taken in a later decision of this Court in Criminal Appeal No. 262 of 1981 (Gourahari Panda v. Paramananda Agarwalla), decided on 18-4-1986. It is, therefore, abundantly clear and consensus of judicial opinion is unanimous that before giving the written consent for prosecution, the authority must apply its mind to the facts of the prosecution case. ( 11 ) IN the present case the order of the Chief District Medical Officer, Phulbani giving consent to the prosecution has not been proved according to law. The written consent does not appear to have been separately given. ( 11 ) IN the present case the order of the Chief District Medical Officer, Phulbani giving consent to the prosecution has not been proved according to law. The written consent does not appear to have been separately given. But in column 16 of the prosecution report submitted in Court, the Chief District Medical Officer, Phulbani appears to have given his consent as under :-"i had applied my mind to the alleged offence and came to conclusion that Sriram Chandra Sahu has committed offence and as such liable for prosecution. Hence prosecution sanctioned. "the written consent does not actually reveal application of mind to the facts of the prosecution case and the documents relied upon by it except stating so. It has not also been specifically proved according to law. ( 12 ) IN view of the above, it is difficult to hold that there was compliance of S. 20 of the Act. That being so, the prosecution of the petitioner is vitiated from the very outset. The learned Judicial Magistrate should not have taken cognisance thereof in the absence of a valid written consent. ( 13 ) THE last contention of Mr. Panda is that there was contravention of Rr. 7 (1) and 18 of the Rules which are of mandatory character. Rule 7 (1) if quoted below :-"7. Duties of public analyst- (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the public analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. "rule 18 is also quoted :"18. Memorandum and impression of seal to be sent separately - 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 registered post or delivered to him or to any person authorised by him. "according to these rules, a copy of the memorandum and a specimen impression of the seal shall be sent to the public analyst separately, so that the public analyst shall be in a position to compare the seals on the container and the outer cover with the specimen impression received separately as is the mandate under R. 7 (1) of the Rules. In AIR 1968 Mys 196 (Belgaum Borough Municipality v. Shridhar Shankar Kundri) and 1971 Cri LJ 129 (Pat) (Daitari Mehto v. State), the Division Benches of the Mysore High Court and the Patna High Court respectively have held that Rr. 7 and 18 of the Rules are mandatory in character and non-compliance of these rules vitiates the conviction of the accused. In 1976 Cri LJ 1837 (Enayat Ali Nazar Ali Bhori v. State of Maharashtra), a Division Bench of the Bombay High Court held as follows :-"the provisions of Rule 18 in so far as they provide for the manner of delivery, that is to say, by registered post or in any other manner so that the contents would be delivered to the public analyst or to any person authorised by him cannot be said to be mandatory. But so far as the first part is concerned, which relates to the sending of the memorandum separately, there can be no doubt that it is of a mandatory character". The Punjab and Haryana High Court in two decisions reported in (1982) 1 FAC 8 (Gian Chand v. State of Haryana) and (1982) 1 FAC 292 (Guranditta Mai v. State of Haryana) held that Rule 18 is of mandatory character. The Rajasthan High Court took an identical view in a case reported in (1983) 2 Crimes 975 (Shiv Bhagwan v. State of Rajasthan ). In 1985 Cri LJ 110 (Mohinder Singh v State of Himachal Pradesh), the Himachal Pradesh High Court took the view that the provisions of Rules 7 and 18 are mandatory in nature. Non-compliance with these rules would vitiate the conviction. ( 14 ) THIS High Court in two decisions reported in 1979 Cut LR (Cri) 238 (Nagendra Kumar Behera v. State) and 1982 Cut LR 92 (Cri) (Babaji Charan Sahu v. State) has not gone so far as to lay down that Rr. 7 (1) and 18 of the Rules are of mandatory nature. It was held in these two decisions that they were directory. But more importantly it was emphasized that the persons concerned should spare no pains to follow the provisions of these rules as best as possible. With great respect I am unable to agree with the view expressed in these decisions. But nevertheless according to rules of precedent I am bound to follow the same. But more importantly it was emphasized that the persons concerned should spare no pains to follow the provisions of these rules as best as possible. With great respect I am unable to agree with the view expressed in these decisions. But nevertheless according to rules of precedent I am bound to follow the same. The difference in view, however, does not very much affect the case in hand, because on facts it can be held that for non-compliance of Rule 18 the trial and conviction were vitiated. I do not consider that this is an appropriate occasion to make a reference to a larger Bench which can be done in future in an appropriate case should occasion arise. ( 15 ) NOW reverting to the facts of the case, the Food Inspector (P. W. 2) admitted in his evidence, ''i sent one bottle to Public Analyst for chemical examination together with the memorandum containing specimen impression of the seal used in packing those samples. Ext. 4 is the office copy of that memorandum prepared by me". The aforesaid statement conclusively proves that the specimen impression of the seal, as contemplated in Rule 18, was not sent separately, but was sent along with the copy of the memorandum. Therefore, there was violation of Rule 18 to the letter which vitiated the conviction of the petitioner. ( 16 ) IN the ultimate analysis, in view of the infraction of the specific provisions of law discussed above, the order of conviction and sentence of the petitioner cannot be supported. ( 17 ) IN the result, therefore, the revision is allowed and the order of conviction and sentence is set aside. The petitioner is acquitted and is set at liberty. Fine, if realised, should be refunded. Bail bond is cancelled. Revision allowed. .