JUDGMENT : L. Rath, J. - The Petitioner having been convicted u/s 16 (1) (a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act') and sentenced to undergo R. I. for six months and pay fine of Rs. 1000/- in default to undergo R. I. for one month more also confirmed in appeal has preferred this revision. 2. The accusations against the Petitioner are that he is the owner, of a grocery shop at Keonjhar which was visited in his presence by the Food Inspector (p.w. 1) along with p.w. 2. the Peon of the Health Department on 7-8-1981 while the accused No. 2, the nephew of the Petitioner who has since been acquitted was present. After inspecting the stock, p.w. 1 suspected the mustard oil to be adulterated and served a notice on the accused No. 2 at the spot who refused to accept it. He thereafter purchased 750 grams of mustard oil and paid Rs. 12.35 paise in lieu of price thereof. The oil so purchased was divided into three equal parts for the purpose of samples and each part was kept in dean bottles and after packing, sealing and labelling the samples, he sent one of he bottles to the Public Analyst along with the specimen .impression of the seal separately. On receipt of the Public Analyst's report that the sample mustard oil was adulterated, the Food Inspector submitted the prosecution report after obtaining sanction from the Chief District Medical Officer, Keonjhar. 3. Mr. Misra, learned, counsel appearing for the Petitioner has urged two questions in assailing the conviction, firstly, that the provisions of Section 10 (7) of the Act were not followed while collecting the samples and secondly, in sending the samples to 'the Public Analyst the provisions of Rule 18 of the Rules framed under the Act were violated. 4. So far as Section 10 (7) of the Act is concerned, it is the contention of Mr. Misra that where a Food Inspector takes action u/s 10 (1) (a) of the Act to take samples of any articles of food from any person selling such articles, he has the obligation to call one or more persons to be present at the time when the action is taken and also to take his or their signatures. The submission is in terms of the provisions of the section itself. The submission is in terms of the provisions of the section itself. The requirement to call one or more persons was interpreted in Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another as calling of independent persons and casting a duty on the Food Inspector to try and secure the presence of one or more such persons though however it was observed that' when he makes the effort but none are willing to co-operate, he could not certainly compel their presence and that the prosecution would be relieved of its obligation if such a fact is shown. The decision has also been followed by this Court in Sitaram Thirani Vs. State of Orissa and also in Chatiram Chandwani v. State ; wherein 48 (1979) C.L.T. 583it was observed that the prosecution in order to prove that the seizure of the food stuff was done in the manner prescribed under the law, must show by adducing convincing evidence that the peremptory formalities were followed or that those could not be fonowed due to certain reasons. 5. Analysing the evidence adduced it is seen, that though p.w. 1 the Food Inspector 'in his examination-in-chief did not state anything regarding calling of any independent witness yet stated in the cross-examination that the neighbouring shops were closed while he was inspecting the shop of the Petitioner, 'that there were two to three outsiders in the shop who refused to be witnesses and left the shop. Such statement of p.w. 1 does not inspire confidence when compared with that of p.w. 2, the Peon, who was accompanying him and had stated that after issuing the notice to the accused who refused to take the same, p.w. 1 took the sample of 750 grams of mustard oil paying the price of Rs. 12.35 paise therefor and divided the same into three parts, kept them in bottles and sealed them in his presence and that there were some outsiders in the shop but they left the shop while p.w. 1 who inspecting the shop. In the cross-examination he clarified again saying that when P.Ws. 1 & 2 reached the shop, the outsiders present left the shop and the neighbouring shopkeepers did not come to the spot and further stated that he did not call any other outsider. In the cross-examination he clarified again saying that when P.Ws. 1 & 2 reached the shop, the outsiders present left the shop and the neighbouring shopkeepers did not come to the spot and further stated that he did not call any other outsider. It was also his admission that the market remains crowded from 7 a. m. to 7 p. m. From such evidence it is clear that by the time P.Ws. 1 & 2 reached the shop the outsiders had left and no attempt had been made by p.w. 1 either to request them to remain as witnesses or make any effort to secure the presence of any independent persons even though the market remained crowded. To view of such fact the submission of Mr. Misra must be held to have been substantiated. 6. The second contention refers to non-observance of Rule 16 of the Rule's which requires that while' one part of the sample and a memorandum prepared under Form No. VII is to be sent to the Public Analyst in the separate packet under Rule 17, another copy of the memorandum and the specimen impression of the seal is to be sent to the Public Analyst separately in a packet by registered post delivered to him Or any person authorised by him. The rule thus contemplates that the sealed packet containing the sample and the memorandum sent under Rule 17 would be different than the packet sent under Rule 16 in which another copy of the memorandum and the specimen impression of the seal affixed to the packet under Rule 17 is to be sent. The evidence purpose is to safeguard any manipulation with the sample sent and ward off any possible objection that the sample sent was not the sample collected from the shop. In State Vs. Satyabadi Jena the provision was held to be directory but nevertheless it was held that keeping in view of the object of the rules no pain should be spared to follow the provisions of those rules as best as possible and the prosecution was quashed since because of the unsatisfactory feature of the evidence it became difficult to hold beyond reasonable doubt that the sample analysed was actually a portion of the food-stuff seized. The decision was followed in Nagendra Kumar Behera v. State through Saroj Kumar Patnaik. Food Inspector, Cuttack Municipality 48 (1979) C.L.T. 122. The decision was followed in Nagendra Kumar Behera v. State through Saroj Kumar Patnaik. Food Inspector, Cuttack Municipality 48 (1979) C.L.T. 122. and again in Babaji Charan Sahu and Anr. v. State 1982 C.L.R. 92, the same view reiterated. 7. Reference to the evidence p.w. 1 shows his saying of having sent one bottle to the Public Analyst under Ext. 3 with the specimen impression of the seal used to seal the sample packet. The statement rather establishes the fact that the impression of the seal along with a copy of the memorandum was not separately sent as required under Rule 18 but that the was sent along with the sample itself, which is a direct contravention of the Rules. Sending of the, impression of the seal along with the sample is also evident from Ext. 3 which is the memorandum in Form No. VII. It shows a writing in hand of the impression seal being also enclosed to it even though in the Form the printed words read of such seal being sent separately aut in view of the very writing on the body of the memorandum, such printed matter cannot have any significance,. Mr. M. R. Mohanty learned Additional Standing Counsel appearing for the State, has tried to contend replying on Ext. 4, the report of the Public Analyst that the impression of the seal and the memorandum were sent in a separate packet. Support, on such contention is sought to be derived from the printed words in Form No. III, the report of the Public, Analyst that the seal fixed on the container and 01) the outer over of the sample tallied with the specimen impression of the seal, separately sent by. Food Inspector, but such printed words would not have any nullifying effect so for as the substantive evidence of p.w. 3 and the intrinsic evidence of Ext. 3 are concerned. Food Inspector, but such printed words would not have any nullifying effect so for as the substantive evidence of p.w. 3 and the intrinsic evidence of Ext. 3 are concerned. The sample and the impression of the seal having not been separately, but sent in one packet, the fact would lead to the conclusion that there is doubt as to whether the sample collected and the sample sent to the Public Analyst were the same and under such circumstances it must be held that the prosecution has not been able to establish its case against the Petitioner beyond reasobale doubt, for which reason, the order of conviction and the sentence cannot be sustained and are quashed. 8. In the result, the revision is allowed. Final Result : Allowed