Judgment : N. ARUMUGHAM, J. ( 1 ) APPEAL is directed against the Judgment rendered by the Special Judge, essential Commodities Act, Madras Made in S. T. C. 53 of 1988 dated 4-10-1989 finding both the accused, who are the appellant herein, guilty for the offences under Sections 3 and 5 of the Tamil Nadu Scheduled Articles (Prescription of standard) Order, 1977 read with Section 7 (1) (a) (ii) of the Essential commodities Act, 1955 and sentencing them each to undergo rigorous imprisonment for a period of three months and also to pay a fine of rs. 1,000/- in default to suffer rigorous imprisonment for a further period of three months. ( 2 ) BOTH the accused are the appellants herein. The first accused rathinaswami is the proprietor of the petrol bunk, being run under the name and style, m/s. Kumar Brothers, at No. 40-41, Kamarajar Street, kancheepuram town and the second accused byname Selvaraj is an employee under him, working in the said petrol bunk. On information, the Inspector, c. I. D. , Civil Supplies, Kancheepuram had. visited the bunk at about 11. 30 a. m. on 1-4-1988. After informing the second accused who was present at that time, that he intended to take samples out of the entire stock of petrol stored and kept in the said bunk for sale, he took samples for that purpose, and he purchased petrol for Rs. 9/-in the presence of P. W. I Ravichandran and one another dhanasekaran. The second accused signed Ex. P-5, the bill for thepurpose of one litre petrol. The Inspector P. W. 5 packed the said petrol of one litre in three separate bottles of 375 ml. capacity equally, closed and sealed them in tact. After affixing his office seal Ex. P-6 on each bottle, he wrapped them with white cloth and tied them with twine. Then, he pasted labels on each one of the bottles noting the address of the petrol bunk, date and time etc. , after obtaining the signatures of the 2nd accused and the witnesses on each label. He also signed all the three bottles and then he prepared Ex. P-1 mahazar for having taken the samples of petrol for testing as attested by the second accused and other witnesses. He was seized the stock register, Ex. P-7 of the said petrol bunk. After furnishing copy of Ex. He also signed all the three bottles and then he prepared Ex. P-1 mahazar for having taken the samples of petrol for testing as attested by the second accused and other witnesses. He was seized the stock register, Ex. P-7 of the said petrol bunk. After furnishing copy of Ex. P-1 to the second accused under proper acknowledgment, one of the three samples so prepared was given to the second accused, on getting his signature in Ex. P-1. Then, the first information report ex. P-8 was prepared which was registered in Crime No. 15 of 1988 of Civil supplies C. I. D. under Sections 3 and 5 of the Tamil Nadu Scheduled Articles (Prescription of Standard) Order 1977 read with Section 7 (1) (a) (ii) of the essential Commodities Act, 1955, in the presence of witnesses P. W. 1 and one another. He sent a sample bottle along with Ex. P-2 requisition with the mahazar ex. P-1 for sending for chemical analysis. Accordingly, it was sent to the forensic laboratory, Madras-4 on 6-4-1988 through the police constable 2528 sambasivan along with the request of the Court, Ex. P-3, for the chemical analysis. The Forensic Science Assistant, P. W. 2 received the sample along with three letters at the Forensic Science Laboratory, Madras and conducted the chemical analysis and found out that it was an adulterated liquid containing petrol and kerosene and gave the report Ex. P-4. ( 3 ) THEN, P. W. 5 Inspector came to know that the first accused is the Proprietor of the said petrol bunk, from the licence itself. After completing the investigation, he filed the charge sheet against both the accused on 30-6-1987 for the offences under Sections 3 and 5 of the Tamil Nadu Scheduled Articles (Prescription of Standard) Order 1977 read with Section 7 (1) (a) (ii) of the essential Commodities Act, 1955. ( 4 ) WHEN both the accused were questioned under Section 313 of the Code of criminal Procedure, with reference to the incriminating circumstances found upon the evidence of the prosecution witnesses, both of them denied their complicity as a whole. Though they claimed to examine the witnesses on their side, no one was examined. ( 5 ) AFTER having recorded the oral testimony of five witnesses, P. Ws. l to 5, marked documents, Exs. Though they claimed to examine the witnesses on their side, no one was examined. ( 5 ) AFTER having recorded the oral testimony of five witnesses, P. Ws. l to 5, marked documents, Exs. P-1 to P-8 on behalf of the prosecution and considered the entire case, in the context of the specific plea of denial taken by and on behalf of the accused, the trial Court has come to the conclusion that the prosecution has established the guilt of both the accused beyond reasonable doubt and consequently found both of them guilty of the offences with which they were charged and convicted and sentenced them accordingly. Aggrieved at this, both the accused have canvassed this appeal for the correctness, legality and validity of the impugned judgment of conviction and sentence. Aggrieved at this, both the accused this appeal for the correctness, legality and validity of passed by the Trial Court. ( 6 ) THE present appeal was canvassed upon four points, by Mr. Habibullah basha, learned Senior counsel appearing for and on behalf of appellants, which vitiate the wole of the impugned judgment and which are as follows:-(i) the Trial Court has virtually and totally ignored the procedure laid down by the statute for taking the samples under the Tamil Nadu scheduled Articles (Prescription of Standard) Order, 1977 (hereinafter referred to as the Order) and also the procedure laid down under the food Adulteration Act and rules and the taking of samples of petrol by p. W. 5 in the instant case is not in accordance with the procedure laid down; (ii) the so-called samples claimed to have been taken by P. W. 5 have not been subjected to chemical analysis immediately and so, the samples have not been analysed properly and therefore, the conviction of the accused on the basis of mere opinion cannot at all be accepted under the principles of law; (iii) even the report of the chemical examiner had not been served upon the appellants/accused which caused every prejudice to the accused to choose their stand of specific defence; and (iv) the non-compliance of the mandatory procedures in this case vitiated the whole prosecution. Basing on these points, learned trial Judge has virtually over-looked and ignored the above mandatory procedure to be complied with by the Investigating Officer which shakes the fabric of the prosecution case. ( 7 ) CONTROVERTING all the above contentions, Mr. Basing on these points, learned trial Judge has virtually over-looked and ignored the above mandatory procedure to be complied with by the Investigating Officer which shakes the fabric of the prosecution case. ( 7 ) CONTROVERTING all the above contentions, Mr. A. N. Rajan, Learned government Advocate would contend that in this case, while taking the samples of petrol, P. W. 5 has complied with all the formalities laid down in the procedures and that therefore, it is not correct to say that the conviction based on the report of the chemical analysis is vitiated and that the chemical analysis done by P. W. 2 is corroborated by her oral evidence besides the report Ex. P-4 and if the said aspect is taken into consideration, it could be seen that the "conclusion arrived at by the learned the Judge is correct and can be accepted without any demur. Then, learned Government Advocate would further submit that the report of the public analysis need not necessarily be served in this case for the mere reasoning that the same has not been spelt out or no mandatory conditions prevail for launching the prosecution. ( 8 ) IN the context of the said contention and positions, I have to see the observations and conclusions of the learned Trial Judge as could be gathered from the impugned Judgment. Learned Trial Judge seems to have accepted the evidence of P. W. 2 mainly to base conviction as well as the evidence of P. W. 5, by adverting to the relevant provisions of the Order and the Act which are being challenged in this appeal. Item-4 to Schedule II annexed to Tamil Nadu scheduled Articles (prescription of Standards) Order, 1977 shows that the kerosene, petrol and diesel are the commodities, standard of which shall be the same as in the specifications prescribed by the Bureau of Indian Standards. Having found the sample adulterated under the said specifications prescribed for kerosene, petrol and diesel, the charge under the Tamil Nadu Scheduled articles (Prescription of Standards) Order was projected against the accused section 3 of the Order reads like this:- "no dealer or any person employed by him, shall (produce, supply or sell)any scheduled article which is not according to the standard prescribed in schedule II to this order. " Section 4 (1) of the Order reads as follows:-"no dealer or any person employed by him shall keep or possess either in the place of business or elsewhere any deleterious substance, colouring agent impurity or foreign matter which may be used as an adulterant to any scheduled articles. " Section 4 (2) of the Order reads as follows:-"where in any trial of an offence punishable for contravention of sub-clause (i), it is proved that the accused person is found in possession of any of the materials specified in the said sub-clause, it shall be presumed, until the contrary is proved, that the accused has contravened the provisions of sub-clause (1)". Section 5 of the Order reads as follows:-"any dealer or any person employed by him who attempts to contravene, or abets or attempts to abet, or does any act preparatory to a contravention of the provisions of Clause 3 or Clause 4 shall be deemed to have contravened Clause 3 or Clause 4 as the case may be. " Section 6 of the Order assumes most significance in this case, which is extracted as hereunder:-"the Competent Officer or any Officer authorised by him in this behalf, shall exercise the same powers and discharge the same duties as those of a Food Inspector under Section 10 and Section 11 of the Prevention of Food adulteration Act, 1954 (Central Act XXXVII of 1954 ). " Section 7 of the Order so provides power of entry, seizure, search etc. , for such competent Officer, vested with powers under Section 6 of the above Order. Sub-section (3) (b) of Section 7 has become relevant in the case, as pointed out and placed reliance upon the same by learned Government Advocate, which runs like this:-"the provisions of Sections 10 and 11 of the Prevention of Food adulteration Act, 1954 (Central Act XXXVII of 1954) and the Rules hereunder relating to the analysis of food sample, shall so far as may be applied to search and seizure and to the analysis of scheduled articles and adulterants referred to in sub-clause (1) of Clauses 4 respectively under this clause. Provided that the provisions contained in sub-section (1) of Section 100 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), in so far as they relate to the production of warrant shall not apply whenever the officer conducting the search has reasonable grounds of believing that such search with warrant cannot be made without any delay and such officer may, after recording his grounds of belief, enter and search without a warrant. " Thus, a mere casual reading of the above sections would clearly clinch the matter that P. W. 5, the Police Officer attached to C. I. D. Civil Supplies Branch is authorised to enter, search and seize any of the commodities under the Order in question for the purpose of identifying the same as adulterated and if he does so, then he has to follow and carry on the same in accordance with the procedure laid down under Sections 6 and 7 of the Order in question. The procedure prescribed for conducting the search, seizure and for taking samples by the competent authority must be mandatory and necessarily to be in accordance with the Rules framed under Sections 10 and 11 of the Prevention of Food adulteration Act, 1954 (Central Act XXXVII of 1954 ). The procedure laid down under Sections 10 and 11 of the Prevention of Food Adulteration Act cannot be confined to entry, search and seizure only, but it also extends to analysis to be done over the scheduled articles and adulterants as referred to under section 4 (1) of the Act. Therefore, the procedure for a competent Authority to have entry, conduct of search and seizure of the Scheduled Articles or adulterants specifically referred to under the Order shall necessarily be done in accordance with the provisions mandatory provided under Sections 10, 11 of the Prevention of Food Adulteration Act, which are mandatory in nature and cannot at all be controverted. Therefore, the procedure for a competent Authority to have entry, conduct of search and seizure of the Scheduled Articles or adulterants specifically referred to under the Order shall necessarily be done in accordance with the provisions mandatory provided under Sections 10, 11 of the Prevention of Food Adulteration Act, which are mandatory in nature and cannot at all be controverted. Thus, it is noticed that the procedure laid down under the Order by virtue of Sections 6 and 7 as a whole is akin to the actual procedural mandate laid down under Sections 10 and 11 and 13 of the prevention of Food Adulteration Act and that therefore, P. W. 5 or any other competent authority has to follow the said procedural mandate and on no account he can opt otherwise for taking samples, searching and seizing the specified commodities under the Order in question. So, before taking samples and purchasing the petrol, P. W. 5 must have served notice on the accused, on the date of occurrence. Though he claims that he had served a notice upon the second accused, it remains only an oral claim without being supported by any document or material i. e. , any acknowledgment of service from either of the accused. In this context, if the matter is looked into and perused, I have no hesitation to say that there is every force in the first contention advanced by learned Senior Counsel Mr. Habibullah Basha. ( 9 ) THEN, as far as taking of the samples and sending of the same to the chemical analyst are concerned, it was the endeavour of learned Senior Counsel appearing for the appellants that no prescribed standard has been followed in this case by P. W. 2 or anyone in the laboratory at Madras and what is made available in this case is Ex. P-4 the opinion of the chemical analyst. This Ex. P-4 contains reference as extracted hereunder:- "a paper parcel marked a. . . . . . Kancheepuram C. S. C. I. D. Cr. No. 15/88 b. No. 20. . . and containing. . . . . . 370 ml. of pale yellowish Liquid in a bottle was received here on 6-4-1988 through police constable No. 2528 Thiru sambasivan under unbroken seals which corresponded with the sample sent. The above Liquid was examined and was found to be a mixture of petrol and kerosene. No. 15/88 b. No. 20. . . and containing. . . . . . 370 ml. of pale yellowish Liquid in a bottle was received here on 6-4-1988 through police constable No. 2528 Thiru sambasivan under unbroken seals which corresponded with the sample sent. The above Liquid was examined and was found to be a mixture of petrol and kerosene. " P. W. 2 the Scientific Assistant Grade-II also signed it besides, Mr. Watson,assistant Chemical Examiner to Government and Assistant Director, forensic Sciences, Department Madras-4. It is not found in Ex. P-4, the method of test or form conducted to take petrol or its adulterant from the sample and the percentage of adulteration as prescribed in Schedule II of the Order in question. Though P. W. 2 claims in her oral evidence something, that cannot at all be accepted for the sample reason that her own document, the opinion does not contain any iota of evidence with regard to the method of test and the percentage of adulteration. Therefore, it is clear under these circumstances, what is the standard prescribed for identifying unadulterated petrol from adulterated petrol, what type of test was conducted and what percentage of adulteration in the sample was found have not been established. For all these particulars, Ex. P-4 is dearth of every details and the modes which are necessary to mulct the accused with the criminal liability, without which the prosecution case cannot be deemed to succeed. The reliance placed by learned Trial Judge upon the evidence of P. Ws. 2 and 5 and Ex. P-4 is not correct and it cannot be stated to be on par with the law laid down in this regard. If the procedure laid down for conducting analysis of the samples taken under the provisions of food Adulteration Act is accepted, it will be followed for conducting analysis in respect of specific commodities under this order also. Then, one cannot find deviation in serving the copy of analysts report on the accused, though there is no relevant Section in the Order, like Section 13 of the Prevention of Food adulteration Act. It would clearly indicate that the copy of the report of the chemical analyst prepared under this Order has also to be served upon the accused person. It would clearly indicate that the copy of the report of the chemical analyst prepared under this Order has also to be served upon the accused person. I would like to add, upon considering the whole matter rule 7 (e) of the Order as pointed out by learned Government Advocate is very exhaustive and this includes sending of the report of the Public Analyst to the accused even under the principle of natural justice and under the purview of the order. In this regard also, I have to uphold the contentions raised by learned senior C ounsel on behalf of the appellant. I am totally unable to accep t the mode of chemical test conducted by P. W. 2 as claimed by her in the witness box, for the simple reason that no prescribed standard has been projected or revealed. On these two grounds alone, which learned trial Judge has omitted to look into the prosecution must necessarily fail and accordingly, the conviction and sentence passed against the appellants are liable to be set aside. ( 10 ) IN Vellai Samy vs. State, a learned single Judge of this Court, while considering the scope of Section 13 (ii) of the Prevention of Food Adulteration act had the occasion to deal with a case akin to the instant case, involving the provisions of the Essential Commodities Act, which are as follows:- "though I am able to visualise that the petitioner and another are probably engaging themselves in large scale manufacture of adulterants to be mixed with tea dust, which is bound to affect the community at large, it is rather unfortunate, that the law enforcing agency had not properly complied with the legal mandates prescribed infraction of certain procedural requirements need not have to necessarily result in halting the prosecution at its threshold. But, if violation of certain mandates, do affect the very core of the prosecution, this Court will have no alternative other than terminating such prosecutions even though they happen to be at their initial stages, for the ultimate outcome of those prosecutions, can easily be predicted. If this legal lacuna were to be considered even at the later point of time, it is bound to end in favour of the petitioner. If this legal lacuna were to be considered even at the later point of time, it is bound to end in favour of the petitioner. If a trial is allowed to be proceeded with, being well aware of this legal lacuna, ultimately it can only result in a mock trial, the final verdict of which is already known. Let me now refer to the observations made by me in S. Arunachalam and other vs. State rep. by the Inspector of Police, Tirunelveli. In that case, I was considering the legality of prosecutions initiated under the very same order read with similar provisions under the Essential Commodities Act. Some of those cases related to cashew husk mixed in tea dust, while other cases related to sale of gingili oil, groundnut oil, dhall etc. After careful analysis of the provisions of the Order and Prevention of Food adulteration Act and Rules, I had observed as hereunder:-"it is fairly clear that beneficial provisions mandated in the Prevention of Food Adulteration Act will naturally apply to prosecutions under the Order, since by incorporation certain Sections of the Prevention of food Adulteration Act, have been referred to in the Order. These sections in part alone, cannot be considered in isolation, for then the logic behind the mentioning of those Sections, gets lost, for, there is a connection between the sub-sections mentioned in Section 11 of the Act and Section 13 of the Act. " Even otherwise, the very introduction of Sections 10, 11, 13 (2-A) and 13 (2-E) of the Prevention of Food Adulteration Act in the Order, automatically take in their fold the other parts of Section 13 of the Act, without which the very purpose of the Order will stand thwarted. Now that it has been conceded, that intimation under Section 13 (2) of the Prevention of Food Adulteration Act had not been forwarded to the petitioner, that alone would be sufficient to hold in favour of the petitioner. Non-service of such intimation affects the very foundation of the prosecution and no superstructure can exist without foundation, since collapse will be necessary outcome, though the facts placed by the prosecution can cause on alarm in any reasonable mind, the remedy to which the petitioner is rightfully entitled, cannot be denied to him. Non-service of such intimation affects the very foundation of the prosecution and no superstructure can exist without foundation, since collapse will be necessary outcome, though the facts placed by the prosecution can cause on alarm in any reasonable mind, the remedy to which the petitioner is rightfully entitled, cannot be denied to him. It is hoped that the law enforcing agency will properly follow the procedure mandated and if they have an option to prosecute the offenders ei. ther under the Prevention of food Adulteration Act or this Order, they will carefully and diligently exercise the option so that the offenders do not have an easy way paved out for escape, not on factual grounds, but no legal issues, which are the outcome of non-exercise of that opinion with due care and caution. ( 11 ) IT is also noticed that the legal concepts of following the procedural mandate laid down under Sections 10, 11 and 13 of the Prevention of Food adulteration Act have necessarily to be followed in cases of taking samples under the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977 and it was made clear, in the context of Sections 6 and 7 of the said Order and to this extent, that there cannot be any controversy among the parties herein. If that is being so, non-issuing of any notice by P. W. 5 before taking samples on the date of occurrence is clearly a violation of the mandate specified under the provisions of the Order or the Act. Besides, the chemical analysis has not been properly done and thus, the prosecution has virtually failed to prove the guilt of the accused by not identifying the adulterant scientifically and the prosecution has also failed to note the percentage of the adulterant as well as this schedule commodity viz. , the petrol in this case. Since the above two aspects have not at all been considered by the learned Trial Judge in rendering the impugned judgment, it cannot be sustained in law for the above said reasons, the appeal has thus to be allowed. ( 12 ) IN the result, the appeal succeeds and the same is allowed and consequently, the conviction and sentence rendered by the Learned Special judge, Essential Commodities Act, Madras in S. T. C. 53 of 1988 dated 4-10-1989 are hereby set aside and both the accused are acquitted. ( 12 ) IN the result, the appeal succeeds and the same is allowed and consequently, the conviction and sentence rendered by the Learned Special judge, Essential Commodities Act, Madras in S. T. C. 53 of 1988 dated 4-10-1989 are hereby set aside and both the accused are acquitted. The fine amount, if any, paid by the accused is hereby ordered to be refunded to them forthwith.