JUDGMENT 1. - This revision is directed against the judgment dated 26th May, 1981 passed by the Sessions Judge, Pratapgarh, Camp Chittorgarh in Criminal Appeal No.28 of 1977. The Sessions Judge, while maintaining the conviction of the petitioner under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), has reduced the sentence awarded to him to six months 'rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine to undergo rigorous imprisonment for two months. 2. The petitioner carries on business as KIRANA merchant at Chittorgarh, On 19th August, 1974 Nakul Singh, PW-1, Food Inspector, Municipal Committee, Chittorgarh went to the shop of the petitioner and after giving him notice (Ex-P 1) purchased 450gm of DESHI GHEE after paying him Rs. 10.80 as price for the same. The said sample of DESHI GHEE was put in three separate bottles and on of the said bottles was sent for chemical examination to the Public Health Laboratory, Udaipur. The Public Analyst, in his report (Ex-P. 5) expressed the opinion that the sample of DESHI GHEE was adulterated. After obtaining the sanction of the Administrator, Municipal Council, the Food Inspector filed a complaint in the Court of Chief Judicial Magistrate, Chittorgarh. The complainant examined two witnesses-Nakul Singh, the Food Inspector, PW-1 and Kaluram, PW 2. The Chief Judicial Magistrate convicted the petitioner for the offence under Section 7/16 of the Act, and sentenced him to rigorous imprisonment for 7 years and to pay a fine of Rs. 2,000/- and in the event of non-payment of fine to further undergo one year's rigorous imprisonment. On appeal, the Sessions Judge, while maintaining the conviction of the petitioner under Section 7/16 of the Act, reduced the sentence to rigorous imprisonment for six months and a fine of Rs. 1,000/- and further directed that in the event of non-payment of fine, he will undergo two months' rigorous imprisonment. 3. I have heard the learned counsel for the petitioner in support of the revision and the learned Public Prosecutor. 4. 1,000/- and further directed that in the event of non-payment of fine, he will undergo two months' rigorous imprisonment. 3. I have heard the learned counsel for the petitioner in support of the revision and the learned Public Prosecutor. 4. The learned counsel for the petitioner has urged that on 19th August, 1974 when the sample of DESHI GHEE was taken Nakul Singh was not a Food Inspector and all proceedings that have taken place on the basis of the said sample were without authority of law and the petitioner cannot be convicted on the basis of the same. 5. In this connection, it may be mentioned that Nakulsingh, P.W.1 was appointed as Food Inspector by Notification of the Government of Rajasthan dated 4th July, 1974 which was published in the Rajasthan Gazette dated 21st November, 1974. Now, the question which requires consideration is whether the appointment of Shri Nakulsingh has to be treated as effective from the date of the Notification dated 4th July, 1974 or from 21st November, 1974 when the said Nonfiction was published in the Rajasthan Gazette. If the appointment of Nakul Singh is taken to be effective from 4th July, 1974 then there is no infirmity in the action of Nakulsingh in taking the sample of GHEE from the petitioner's shop on 19th August, 1974, but, if the appointment of Nakulsingh is treated to be effective from 21st November, 1974. his action cannot be treated as having been taken in exercise of his powers as a Food Inspector. 6. Section 9 (1) of the Act empowers the Central Government or the State Government, by Notification in the Official Gazette, to appoint such persons as it thinks fit having the prescribed qualifications for the post of Food Inspector as may be assigned to them by the Central Government or the State Government, as the case may be. The aforesaid provisions have been considered by this Court in Madholal v. State, 1980 RLW 55 . In that case, the Government Notification appointing Kirparam as Food Inspector was issued on 10th December, 1975 and it was published in Rajasthan Rajpatra dated 8th January, 1976. It was held that the appointment of Kirparam as Food Inspector under Section 9 (1) of the Act was effective from 8th January 1976, the date when the Notification was published in the Gazette. It was held that the appointment of Kirparam as Food Inspector under Section 9 (1) of the Act was effective from 8th January 1976, the date when the Notification was published in the Gazette. To the same effect are the decisions of other High Courts (2) 1964 (1) Cr.L.J. 605 and (2-A) 1983 Cr.L.J. 177. In view of the said decisions it must be held that Nakulsingh was appointed as Food Inspector on 21st November, 1974, the date of publication of the Notification dated 4th July, 1974 in the Gazette and on 19th August, 1974 he was not holding the office of the Food Inspector. 7. Both the Courts below have proceeded on the basis that even if Nakulsingh was not a Food Inspector on 19th August, 1974, the sample of DESHI GHEE taken by him from the shop of the petitioner on 19th August, 1974 can be regarded as purchase of GHEE by him as a private individual under Section 12 of the Act and if it is found on chemical examination that the sample of GHEE taken from the shop of the petitioner was adulterated, it was permissible for Nakulsingh to file the complaint under Section 20 of the Act and that the petitioner must be held guilty of the offence punishable under Section 7/16 of the Act. 8. The learned counsel for the petitioner has submitted that the Courts below have erred in taking this view. His submission is that the sample which was taken from the shop of the petitioner on 19th August, 1974 was not in his private capacity but was taken in his capacity as Food Inspector and further that the complaint which was filed Nakulsingh as Food Inspector was not in his capacity as a private individual but as Food Inspector and the said complaint was treated as a complaint filed by the Food Inspector and tried as such. The submission of the learned counsel is that the action of Nakulsingh in taking the sample of DESHI GHEE from the shop of the petitioner on 19th August, 1974 could no. be treated as taking of sample by a private person as contemplated by Section 12 of the Act. In support of his contention, the learned counsel has relied on the decision of it Division Bench of the Punjab & Haryana High Court in State of Punjab v. Shersingh, 1984 (1) FAC 140. 9. be treated as taking of sample by a private person as contemplated by Section 12 of the Act. In support of his contention, the learned counsel has relied on the decision of it Division Bench of the Punjab & Haryana High Court in State of Punjab v. Shersingh, 1984 (1) FAC 140. 9. The learned Public Prosecutor, on the other hand, has supported the view taken by the Court below and has submitted that even if it is held that Naknl Singh was not a Food Inspector on 19th August, 1974, his action in obtaining the sample of DESHI GHEE from the shop of the petitioner on 19th August, 1974 was a purchase by him as a private individual and it was covered by Section 12 of the Act and since the said sample was found to be adulterated, the petitioner has been rightly convicted of the offence under Section 7/16 of the Act. In support of the aforesaid contention, the learned Public Prosecutor has pieced reliance on State of Maharashtra v. Tukaram, 1974 FAC 10 Municipal Corporation, Delhi v. Chandulal 1974 FAC 507 , State of Gujarat v. Natvarlal Pitambardas Shah 1984(l) FAC 98. 10. The question for consideration is as to whether obtaining of 450 gm. of GHEE from the shop of the petitioner by Nakulsingh PW-1 on 19th August, 1974 can be regarded as purchase covered by Section 12 of the Act. This matter has been considered by the High Court of Punjab & Haryana in State of Punjab v. Shersingh . In that case, it was found that a sample of milk which had been found to be adulterated was taken by a senior medical officer who could not have acted as Food Inspector. It was urged that the complainant should be taken to be a private purchaser under Section 12 of the Act. The said contention was rejected by the High Court and it was observed as under : "By virtue of Section 12 of the said Act two categories were made of the persons who could take action and it says that nothing contained in the Act shall be held to prevent a purchaser of any article of food other than a Food Inspector for having such article analysed from the Public Analyst. The complainant has specifically acted in the present case as a Food Inspector and not as an ordinary purchaser. The complainant has specifically acted in the present case as a Food Inspector and not as an ordinary purchaser. We do not consider it proper that after the complainant has failed to show himself as a Food Inspector the proceedings should still be held to be valid by considering him to be a purchaser. If such a view as canvassed by the learned State counsel were to be taken, the provision contained in Section 20 of the Act in relation to the cognizance of the offence would lose all meaning." The learned Judges have drawn a distinction between a case where the Food Inspector purchases anything in his private capacity as an ordinary purchaser and a case where the Food Inspector, in the purported exercise of his power acts as a Food Inspector. 11. In State of Maharashtra v. Tukaram, 1974 FAC 10. the Bombay High Court was dealing with a case where it has found that the Food Inspector, who had taken the sample, was not qualified to act as a Food Inspector and it was held that merely because there was an element of compulsion in the act of Food Inspector in taking the ample by representing as Food Inspector it could not be held that he is not a purchaser within the meaning of Section 12 of the Act. The question that was examined by the High Court was as to whether the element of compulsion means that the transaction falls within the meaning of Section 12 of the Act and cannot be taken out of it. It was held that in spite of such an element of compulsion, the transaction is a sale. 12. Similarly, in Municipal Corporation Delhi v. Chandulal 1974 FAC 507 , it was found that the Food Inspector, who had taken the sample, had financial interest in the sale of food products and was disqualified to act as Food Inspector. The Delhi High Court held that the purchase made by the Food Inspector could be regarded as a purchase under Section 11 of the Act. 13. In State of Gujarat v. Natwarlal Pitambar Shah 1984 (1)FAC 98 the question for consideration was as to whether the prosecution could be launched by the person who could not validly be appointed as a Food Inspector. 13. In State of Gujarat v. Natwarlal Pitambar Shah 1984 (1)FAC 98 the question for consideration was as to whether the prosecution could be launched by the person who could not validly be appointed as a Food Inspector. It was held that a person who is duly authorised to launch prosecution under Section 20 is competent to launch prosecution and the question as to whether he has validly been appointed as a Food Inspector is irrelevant factor and the prosecution will not fail even if the appointment of the complainant is invalid. In that context, it has been observed that, as purchaser under Section 12 of the Act, the complainant had the authority to launch prosecution against the accused. 14. In my opinion, a distinction has to be made between the taking of a sample under Section 10 of the Act and a private purchase made under Section 12 of the Act. The Food Inspector, who takes the sample in exercise of or in the purported exercise of his powers under Section 10 of the Act, cannot be regarded as purchase under Section 12 of the Act. In order that a purchase by Food Inspector may be treated as a purchase under Section 12 of the Act it is necessary that the said purchase should have been made by the Food Inspector as a private person and not by exercise of his statutory authority. I am therefore, in agreement with the view of the High Court of Punjab & Haryana in State of Punjab v. Shersingh, 1984(1)FAC 140. 15. If the facts of the prosecution are examined in this light, it will be found that before taking the sample Nakulsingh PW-1 gave a notice (Ex-P. 1) in the Form VI prescribed under Rule 12 of the Prevention of Food Adulteration Rules 1955 (hereinafter referred to as the Rules'). Rule 12 of the Rules prescribes that when a Food Inspector takes a sample of an article for the purpose of analysis, he shall give a notice of his intention to do so in writing in Form-VI. This shows that Nakulsingh PW 1 had taken the sample of DESHI GHEE from the shop of the petitioner by issuing a notice Ex.P. 1 under Form VI in his official capacity as Food Inspector and not in his private or individual capacity. The receipt (Ex. This shows that Nakulsingh PW 1 had taken the sample of DESHI GHEE from the shop of the petitioner by issuing a notice Ex.P. 1 under Form VI in his official capacity as Food Inspector and not in his private or individual capacity. The receipt (Ex. 2) which was issued is also in favour of the Health/Sanitary/Food Inspector and is not in favour of Nakulsingh personally. The complaint was filed by Nakulsingh after obtaining the sanction of the Administrator, Municipal Council, Chittorgarh and was in his capacity as Food Inspector. If the complaint had been filed by Nakulsingh in his private capacity, no sanction was required under Section 20 of the Act. The said complaint was treated as complaint by the Food Inspector-under Section 20 of the Net and was tried as such and has not been treated as a private complaint filed by Nakulsingh personally in his private capacity. 16. Taking into consideration the facts and circumstances referred to above, I am of the view that the action of Nakulsingh PW 1 in taking the sample of DESHI GHEE from the ship of the petitioner on 19th August, 1974 was done in the purported exercise of his powers as a Food Inspector and the said action was not in his private capacity as purchaser. Once it is held that on 19th August, 1974 Nakulsingh was not entitled to exercise his powers of Food Inspector as his appointment as Food Inspector could be effective only from the date the Government Notification was published in the Official Gazette, the action of Nakulsingh in taking the sample on 19th August, 1974 could not be treated as a sample taken under the provisions of the Act and no prosecution could be based on it. 17. For the reasons aforesaid, the conviction of the petitioner for the offences under Section 7/16 of the Act cannot be sustained. The revision is, therefore allowed. The conviction of the petitioner for the offences under Section 7/16 of the Prevention of Food Adulteration Act, 1954 and the sentence imposed upon him for the same are set aside. The petitioner is already on bail. He need not surrender. The bail bonds shall stand discharged.Revision allowed. *******