JUDGMENT A.L. Vaidya, J.—The present petitioner was convicted under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter to be called as the Act) and was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000 and in default of the payment of fine, he was to suffer simple imprisonment for a period of two months, by the trial Magistrate and on appeal before the learned Sessions Judge, Solan, the aforesaid conviction and sentence had been maintained. 2. The Food Inspector on 16th December, 1987, visited the shop of the present petitioner at Kunihar, District Solan and purchased sample of Haldi Sabut for the purpose of analysis in accordance with law and procedure in this behalf. The Public Analyst found the sample to be adulterated, and a complaint under section 7 (i) of the Act was preferred against the present petitioner. 3. The trial Magistrate convicted the petitioner and passed the sentence, as referred to above, which was maintained by the learned Sessions Judge. 4. The aforesaid conviction and sentence have been assailed in the present revision petition on various grounds. 5. I have heard the learned Counsel for the parties and have also gone through the records. 6. The learned Counsel for the petitioner Sh. K. D. Sood, has assailed the aforesaid conviction and sentence on three grounds, namely: (1) The sample of Sabut Haldi was taken in December 1987 and it was analysed by the Public Analyst and the Director, Central Food Laboratory after sometime and with the passage of time it had some insect formation, which could be attributed to the damp climate and to the late analysis of the sample. (2) The petitioner during the trial exercised his right under section 13 (2) of the Act and after the receipt of the report from the Director, Central Food Laboratory, it was mandatory upon the complainant to have procured fresh sanction of prosecution of the petitioner on the basis of the Directors report. (2) The petitioner during the trial exercised his right under section 13 (2) of the Act and after the receipt of the report from the Director, Central Food Laboratory, it was mandatory upon the complainant to have procured fresh sanction of prosecution of the petitioner on the basis of the Directors report. As in this case it was not so done, therefore, the trial was without any legal sanction (3) It has been contended that at the time of taking of the sample the petitioner represented to the Food Inspector that the sample taken was not meant for sale for human consumption, for which the Sabut Haldi was lying in a separate bag, but the Food Inspector took the sample from the Sabut Haldi, which was kept in a wooden box for animal use and not for human consumption 7. There is no doubt that the sample of Sabut Haldi was taken in December 1987. Ex. PH is the report of the Public Analyst, on the basis of which the sample was found to be adulterated, as it contained seven living insects and 36.5% Rhizomes were insect damaged against the maximum prescribed standard of 5 0% The report of the Public Analyst was signed on 18th January, 1988, but it has been very specifically referred in the report itself that macro and micro analysis were done on 17-I2-I9a7, on the basis of which the aforesaid report was made, so it cannot be said that the sample was analysed after much delay, especially, in this case, the aforesaid analysis was done on the very next day of taking of the sample, 8. The report of the Director, Central Food Laboratory is Ex. PM on record On the basis of this report, the amount of insect damaged matter exceeds the maximum specified limit of 5 0% by weight. It has been found in this case to be 60.0% by weight, and it has also been opined that the sample was insect infested, 9. The report of the Director, Central Food Laboratory is dated 28th June, 1988. As far as this report is concerned, the fact remains that on the basis of this report, the sample was analysed after about six months of taking of the sample and the likelihood of more insects formation having taken place during this period could not be ruled out. As far as this report is concerned, the fact remains that on the basis of this report, the sample was analysed after about six months of taking of the sample and the likelihood of more insects formation having taken place during this period could not be ruled out. 10 However, on the basis of the aforesaid facts, it cannot be said that the adulteration was found on account of the sole fact that the sample was analysed after much delay. But on the other hand, two reports clearly reflected that the sample was adulterated and in so far as Ext. PM was concerned, it superseded Ext. PH. 11. No doubt, with the passage of time the percentage of the insects damage could be more, but the fact remains, the sample was adulterated and in this view of the matter, the submission put forth on behalf of the petitioner does not carry any weight 12. As referred to above, on the basis of the report of the Director, Central Food Laboratory,-the sample was found adulterated tin two scores. The first being that the amount of insect damaged matter exceeded the maximum specified limit of 5% by weight, which in this case was 60% by weight, and secondly, it was insect infested. 13. According to the learned Counsel for the petitioner, on the basis of this report Ext. PM, fresh sanction was required to be taken by the complainant for launching prosecution, and in this behalf, 1990 (t) Sim LC 126, Rattan Lal v. State of H P , has been relied upon In this reported case, it has been held that where the variation in the contents of the report of the Public Analyst and the certificate of the Director Central Food Laboratory is of a nature which does not alter the specie of the offence for which the offender is being prosecuted on the basis of the written consent given by the appropriate authority under section 20 (1) of the Act on consideration of the contents of the report of the Public Analyst, no fresh consideration of that question or necessity for obtaining a written consent afresh, after the receipt of the report of the Director, arises in the case. It has further been held that where the nature of the difference in the report of the Public Analyst and the certificate of the Director, Central Food Laboratory, is such that it completely alters the specie of the offence, in the sense of altering the nature of adulteration for which prosecution was initially launched, fresh application of mind on the part of the appropriate authority, envisaged by section 20 (!) of the Act, to the facts and circumstances of the case, in the light of the findings of the Director, is necessary before the prosecution against the offender can be continued any further. 14 In the present case, the reports of the Public Analyst and that of the Director, Central Food Laboratory have already been referred above. There does not seem to be any change with respect to specie of the offence. The Public Analyst in the report opined that there were seven living insects in the sample at the time of examination and the insect damaged sample was 36 5% against the maximum prescribed standard of 5%. The report of the Director, Central Food Laboratory Ext. PM opined that the sample was insect infested, and the insect damaged matter was 60% by weight. The two reports are on the same count i e. the sample having been damaged by the insects. The report of the Director does not change the specie of the adulteration at all In this view of the matter, the aforesaid case cited on behalf of the petitioner will not, at all, be applicable to the facts of the present case and this point also does not carry any weight whatsoever. 15. Lastly, it has been contended that the sample taken by the food inspector from the petitioner was not meant for human consumption, but was kept for animals to be used as a medicine. This defence has been rejected by the two courts below, especially, by the learned Sessions Judge being an afterthought. The learned Sessions Judge has observed that in case, this was the defence of the petitioner he would not have exercised the option under section 13 (2) of the Act for sending the sample for analysis to the Director, Central Food Laboratory, and secondly, it has been observed that in case it was not meant for human consumption, the petitioner should have not accepted the price of the sample. These two grounds have influenced the learned Sessions Judge to come to the conclusion that the defence was an afterthought. 16. It may be very specifically referred here that to opt for exercising the right under section 13 (2) of the Act, will not, in any way, mean that the petitioner has conceded that the sample was kept for sale for human consumption. An accused person is legally entitled to avail all the statutory defence available to him under the Act. His conduct in this behalf, in exercising that right, cannot be inferred that he had in a way conceded that the article was kept for sale for human consumption. Not to accept the price of the sample purchased by the Food Inspector, again will not be an inference to this effect that the aforesaid defence was an afterthought. I think, a shopkeeper dare not behave in that manner with the food inspector, especially, when by doing so, it may amount to some dis-regard to the food inspector and also in a way to obstruct in his official functioning. In case, the evidence examined during the trial is appreciated, it cannot be said that the said defence was an afterthought. 17. PW1 is the Food Inspector, He has been cross-examined in this behalf by the present petitioner, wherein, he stated that it was correct that there was one kilogram of Sabut Haldi in a wooden box. He also admitted that it was correct that 50 Kgs. of Sabut Haldi was lying in a bag kept in the shop for sale, However, the witness stated that it was incorrect that one kilogram Haldi kept in a wooden box was stated by the accused to be a waste Haldi and was to be used for animals for treating their injuries He also stated that it was incorrect that the accused represented at that time that the Haldi was not for human consumption. 18. Similarly, the other eye-witness PW 3 Sant Ram stated that it was correct that he did not remember, whether Pawan Kumar Barber was present at that time. However, he has stated that in the wooden box there was 2 to 2-1/2 Kgs. Haldi. 18. Similarly, the other eye-witness PW 3 Sant Ram stated that it was correct that he did not remember, whether Pawan Kumar Barber was present at that time. However, he has stated that in the wooden box there was 2 to 2-1/2 Kgs. Haldi. He also stated that it was incorrect that the accused represented that in this wooden box, the haldi kept was bad and was not for human consumption He also denied the suggestion that the accused further represented that this Haldi was kept for treating the injuries of the cattle. This witness further added that it was correct that the Haldi, from which the sample was taken was looking to be a rotten one and was not tit for human consumption, hut the Haldi in the bag was also of the same nature. However, the witness added that in the bag there was 80 to 90 Kgs of Haldi. 19. From the complainants witnesses, one fact has been established i.e. that the Haldi from which the sample was taken was very much less in quantity and had been kept in a wooden box separately. It has also been established that one bag full of Haldi was lying in the shop for sale. From the cross-examination of these witnesses, the defence has been put up to them, though they have denied the same 20. The accused examined two witnesses in defence, one is Pawan Kumar, regarding whose presence at the spot, PW 3 was cross-examined, but he stated that he did not remember whether Pawan Kumar was there. This witness very specifically deposed that at the time of taking the sample, he was present there as his shop was situated adjacent to the shop of the accused. According to him, the sample of Haldi was taken from the store, which was lying in a bad state, in a wooden box. This witness further added that the accused at that time represented that this Haldi was not meant for sale, and that it was kept to be sold to the agriculturist for treating the injuries of the animals He also stated that this Haldi was to be given free of cost to the agriculiurist. The other defence witness examined is Ayurvedic Doctor Sh. Naresh, who stated that Haldi was used to treat the animals injuries and even human injury. 21. The other defence witness examined is Ayurvedic Doctor Sh. Naresh, who stated that Haldi was used to treat the animals injuries and even human injury. 21. It may be referred here that complainant in order to establish the guilt, has to prove the case beyond all reasonable doubts. But the same standard is not required to establish the defence The accused under the law is required to make out a probable case in support of his defence and in case he succeeds in this behalf, benefit under the law has to be given to him. On the basis of the evidence examined during the trial, and as discussed above, the likelihood of the defence being taken to be probable, could not be ruled out and under the circumstances, the benefit has to be given to the accused and none-else. In view of the foregoing reasons, the present revision petition is accepted and the conviction and sentence under reference are quashed and set aside. The present petitioner, as a result thereof, is acquitted of the offence, he has been convicted. The fine, if paid, be returned to the petitioner forthwith. The bail bonds also stand discharged. Revision petition allowed. -