P. K. PRATAP, J. ( 1 ) THE petitioner was prosecuted under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'), on the allegation that he was selling articles, to wit : groundnut oil and Rahad dal which were adulterated and prohibited for sale for human consumption. The learned trying Magistrate found the petitioner guilty under the aforesaid provision, convicted him thereunder and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- with a defaulting sentence. The appeal preferred against the said conviction and sentence before the Sessions Judge ended in dismissal. Hence, this revision. ( 2 ) PROSECUTION case may be briefly stated. On 29-10-1990 at about 11 a. m. the Food Inspector of Bolangir district (P. W. 1) along with his peon P. W. 2 visited the shop of the petitioner at Jagannathpara, Bolangir. The petitioner was present and was in charge of the business. P. W. 1 after disclosing his identity made statutory purchase of groundnut oil and Rahad dal which he suspected to be adulterated. After complying with necessary formalities, the samples of ground-nut oil and Rahad dal were sent to the Public Analyst for analysis. On examination of the same, he reported both items to be adulterated. On receipt of the said report and after obtaining sanction from the competent authority, the petitioner was placed on trial which has ended in his conviction, as aforesaid. ( 3 ) THE petitioner denied the charge. In his statement recorded under Section 313 Cr. P. C. , he took specific plea that the Food Inspector took samples from his godown without any notice. ( 4 ) PROSECUTION examined three witnesses on its behalf. P. W. 1 is the Food Inspector, P. W. 3 is the peon attached to the office of the Chief District Medical Officer. He had accompanied P. W. 1 at the time of his inspection of the petitioner's shop. P. W. 3 is a witness to the seizure who was called by P. W. 1 to the shop of the petitioner. ( 5 ) SHRI Mohanty, learned counsel for the petitioner, contended that the reports of the Public Analyst are defective and cannot form the basis for holding that the Rahad dal and ground-nut oil were adulterated. P. W. 3 is a witness to the seizure who was called by P. W. 1 to the shop of the petitioner. ( 5 ) SHRI Mohanty, learned counsel for the petitioner, contended that the reports of the Public Analyst are defective and cannot form the basis for holding that the Rahad dal and ground-nut oil were adulterated. He also submitted that these articles were ept in the godown and were not meant for immediate sale and the Food Inspector should not have taken samples from the godown. ( 6 ) EXT. 16 is the report of the Public Analyst in respect of Rahad dal. The Public Analyst has opined that the article was a mixture of Rahad dal and a small amount of dal, sale of which is prohibited under the Act. The case of the petitioner is that samples were taken not from the shop room but from the godown. In view of such plea, let me therefore examine the evidence on record on this point. P. W. 2 deposed that on the date of occurrence, he visited the wholesale grocery shop of the petitioner. He called on Ram Narayan Satpathy, 'an outsider witness', to the shop. Ram Narayan Satpathy was examined as P. W. 2 who stated that on being called by the Food Inspector, he went to the shop of the petitioner. He stated that the Food Inspector took sample of Rahad dal which was heaped in the godown of the petitioner. This statement of P. W. 2 is not consistent with the version of P. W. 2 who deposed that sample was taken from the shop. P. W. 2 was not declared hostile by the prosecution. In cross-examination, he stated that the labourers of the petitioner were winnowing Rahad dal when the Food Inspector inspected the godown and the petitioner told him that he used to sell Rahad dal after proper winnowing. He further deposed that the Food Inspector forcibly took sample from the bag which was not winnowed despite the refusal of the petitioner to give sample from the said bag. This evidence of P. W. 2 who is an independent witness strikes at the root of the prosecution case. His evidence clearly suggests that the petitioner used to sell Rahad dal after winnowing but the Food Inspector took sample from the bag which was not winnowed. This evidence of P. W. 2 who is an independent witness strikes at the root of the prosecution case. His evidence clearly suggests that the petitioner used to sell Rahad dal after winnowing but the Food Inspector took sample from the bag which was not winnowed. In the case of each evidence, I am inclined to hold that the Food Inspector took sample of Rahad dal from the bags lying in the godown which were not meant for sale and the prosecution has failed to establish its case so far as it relates to 'rahad dal'. ( 7 ) GROUND-NUT oil :shri Mohanty contended that the report of the Public Analyst relating to ground-nut oil is vague and incomplete inasmuch as it did not specify whether the said value was eleic said or not and, as such, prosecution cannot press it into service against the petitioner. Ext. 17 is the report of the Public Analyst. The relevant part of the report is extracted hereunder :"i further certify that I have caused to be analyzed the aforementioned sample, and declare the result of the analysis to be as follows :1 to 4. . . . . . . . . 5. Acid value - 7. 46 and 7. . . and as of opinion that the quality of the sample falls below the prescribed standard in respect of acid value and it is therefore adulterated. "the aforesaid argument of the learned counsel was based on the repealed provision of A. 17. 03 of Appendix B of the Prevention of Food Adulteration Rules, 1955 (hereinafter called 'the Rules') which provided that ground-nut oil should conform to, inter alia, free fatty acid as eleic not more than 3 per cent. At the time of occurrence, the provision A. 17. 03 stipulated that acid value of the ground-nut oil should not be more than 6. 0 per cent. In the present case, the Public Analyst had found the said value at 7. 4. It being more than the prescribed standard, no exception can be taken to the opinion of the Public Analyst given in Ext. 17. Shri Mohanty after coming to know about the legal position fairly did not press this point. ( 8 ) IT was next contended that as there was noncompliance of rules 7, 17 and 18 of the Rules, the petitioner is entitled to acquittal. 17. Shri Mohanty after coming to know about the legal position fairly did not press this point. ( 8 ) IT was next contended that as there was noncompliance of rules 7, 17 and 18 of the Rules, the petitioner is entitled to acquittal. Rule 17 provides the manner of despatching containers of samples. It requires, inter alia, that one part of the sample duly packed and sealed accompanied by a copy of the memorandum in form VII shall be sent to the Public Analyst in a sealed packet. Rule 18 requires that a copy of the memorandum (in Form VII) and specimen impression of the seal used to seal the packet shall be sent in a sealed packet separately to the Public Analyst by any suitable means. Rule 7 which deals with the duties of the Public Analyst provides that on receipt of the packet containing sample for analysis, 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. On a combined reading of the aforesaid rules, there is no doubt that the memorandum and the specimen impression of the seal should be sent to the Public Analyst in a sealed packet separate from the sealed packet containing the sample. The Supreme Court in State of Maharashtra v. Raj Karan, 1988 SCC (Crl) 47 has observed that the provision contained in Rule 18 is mandatory and its non-compliance effects the prosecution. Shri Mohanty relying on decision of this Court in Srinibas Pradhan v. State of Orissa, (1990) 70 CLT 164 and Prafulla Kumar Mohanty v. State of Orissa, 1991 (4) OCR 489 submitted that in the present case there was noncompliance of the provision in as much as the Food Inspector did not send the memorandum and the specimen impression of the seal to the Public Analyst separately. On careful examination of the evidence on record I am satisfied that the submission of the learned counsel on this score is not factually correct. On careful examination of the evidence on record I am satisfied that the submission of the learned counsel on this score is not factually correct. The Food Inspector (P. W. 1) deposed that on 30-10-1990 he sent one part of sample bottle of groundnut oil and Rahad dal to the Public Analyst along with copy of memorandum accompanied by the sample in one registered parcel with sealed cover and on the same date he also sent the specimen impressions of the seals along with copy of the memorandum of each sample by registered post with A/d to the Public Analyst separately in a sealed packet for comparison. Ext. 6 is the office copy of the memorandum in respect of groundnut oil and Ext. 7 is the office copy of the memorandum in respect of Rahad dal. On perusal of Exts. 6 and 7 it transpires that by memo no. 425 dated 30-10-1990 the Food Inspector sent the sample of groundnut oil to the Public Analyst and by memo no. 426 of the same date he sent copy of memo no. 425 and specimen impression of the seal to the Public Analyst separately by post. Similarly as memo no. 428 dated 30-10-1990 he sent sample of Rahad dal and by memo no. 429, copy of memo no. 428 and specimen impression of the seal were sent separately by post to the Public Analyst. This is thus not a case where samples and specimen impressions of the seals were sent together in one sealed packet. It is a case where two distinct samples, i. e. , ground-nut oil and Rahad dal were sent in one packet and memoranda and specimen impressions of the seals were separately sent in another sealed packet. In my considered opinion, what law requires is that copy of the memorandum and specimen impression of seal should not be sent together with the sample packet and if two or more samples are sent in one packet and specimen impressions of the seals are sent separately in another sealed packet, there can be no contravention of the provision of rule 18. ( 9 ) LET me now examine the two decisions cited by Shri Mohanty in this connection. ( 9 ) LET me now examine the two decisions cited by Shri Mohanty in this connection. In Srinibas Pradhan (1990) 70 Cut LT 164 (supra), the prosecution claimed to have sent two food articles by registered post and their memoranda and impressions of seals by two separate registered packets. The Court found that there was no evidence adduced by the prosecution that the memoranda and impressions of seals were sent separately from the packet of samples and prosecution merely relied on the report of the Public Analyst which was in a printed form containing a sentence that the memo and specimen impression of the seal used to seal the packet of sample is being sent separately. In absence of any evidence of separate despatch of memoranda and specimen impression of seals, the Court held that the mandatory provision of rule 18 was not complied with. In Prafulla Kumar Mohanty (1991 (4) OCR 489) (supra), the Court found that there was no acceptable evidence on behalf of the prosecution relating to separate sending of memorandum and the specimen impression of the seals. As already indicated, in the instant case, there are intrinsic and contemporaneous documents which prove that the memoranda and the specimen impressions of the seals were sent separately and not with the packet of samples. Proof of compliance of rule 12, namely, sending of the memorandum and the specimen impression of the seal in a sealed packet separately from the sealed packet of the sample differs from case to case depending upon facts of each case and accordingly the cases of Srinibas Pradhan and Prafulla Kumar Mohanty (supra) are of little assistance to the petitioner. ( 10 ) SHRI Mohanty next contended that there was no oral evidence to show that copies of the reports of the Public Analyst were sent to the petitioner and, as such, there is violation of the mandatory provision contained in Section 13 (2) of the Act. The Food Inspector (P. W. 1) in his deposition stated that after filing of the prosecution report, the Additional Chief District Medical Officer sent copies of the reports of the Public Analyst in respect of both the articles along with forwarding letter by registered post with A/d. Ext. 22 is the postal receipt indicating despatch of the letter. Ext. 21 is the copy of the forwarding letter sent to the petitioner. 22 is the postal receipt indicating despatch of the letter. Ext. 21 is the copy of the forwarding letter sent to the petitioner. In his cross-examination, P. W. 1 further disclosed that both the reports of the Public Analyst were sent to the petitioner in one single letter and when the A/d did not return, they made correspondence with post office regarding service of letter on the petitioner. The Superintendent of Post-offices in his letter Ext. 23 reported that the letter in question was delivered to the petitioner on 10-1- 1991. In view of the aforesaid documantary evidence, I have no hesitation to hold that copies of the reports of the Public Analyst were duly despatched to the petitioner which he received on 10-1-1991. In the circumstances, I am satisfied that there is no violation of the provision contained in Section 13 (2) of the Act. ( 11 ) SHRI Mohanty lastly contended that the two tins of ground-nut oil from which the sample was taken were not meant for sale and the petitioner was about to return them. In this connection, he has referred to the evidence of P. W. 2 who was called by the Food Inspector to be a witness of taking samples. The witness deposed that the Food Inspector collected samples from two tins in spite of the protest of by petitioner. In his cross-examination, he testified that the petitioner told the Food Inspector that he had kept two tins of oil in order to return and not for sale and there were 200 to 300 tins separately kept for sale. The said witness was not declared hostile by the prosecution. P. W. 1, the Food Inspector denied the suggestion that the petitioner kept the articles in his godown which were not for sale. This is a case where there is oath against oath. P. W. 2 being an independent witness and having been not declared hostile by the prosecution, there is no reason as to why his evidence should not be accepted. In the circumstances, the plea of the petitioner that the two tins from which sample was taken were to be returned and not meant for sale cannot be disbelieved. Consequently, it cannot be said that the prosecution has been able to prove this part of the case beyond reasonable doubt. In the circumstances, the plea of the petitioner that the two tins from which sample was taken were to be returned and not meant for sale cannot be disbelieved. Consequently, it cannot be said that the prosecution has been able to prove this part of the case beyond reasonable doubt. ( 12 ) IN the ultimate analysis, the conviction and sentence of the petitioner cannot be upheld which are set aside. He is acquitted of the charge. The revision is accordingly allowed. Revision allowed. .