JUDGMENT Dipak Misra, J. 1. In this appeal, the State of M.P. has assailed the defensibility of the judgment passed by the learned Judicial Magistrate, First Class, Balod, District Durg, in Criminal Case No. 2180/95 dated 25-1-1988, whereby he has acquitted the respondent of the charge under Section 16(l)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). 2. The prosecution case, in brief, is that on 20-8-1985 at Village Dondi Lohra, the Food Inspector, R. R. Shrivastava (PW1) took sample of Sev (namkeen sev) from the shop of the accused-respondent. After completing all formalities, the said sample was sent to Public Analyst, who found that the prohibited colour had been used in the seized food. On receipt of the report and after obtaining consent as envisaged under Section 20 of the Act from the competent authority, the Food Inspector filed the complaint before the Magistrate concerned. 3. The accused abjured his guilt and pleaded innocence. The further plea of the accused was that the notice in Form VI as envisaged under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the 'Rules of 1955' in short), was not served on him. 4. To bring home the charge, the prosecution examined two witnesses, namely R. R. Shrivastava (PW 1), Food Inspector and Laxman (PW 2) another independent witness. The defence chose not to adduce any evidence. 5. 4. To bring home the charge, the prosecution examined two witnesses, namely R. R. Shrivastava (PW 1), Food Inspector and Laxman (PW 2) another independent witness. The defence chose not to adduce any evidence. 5. The learned trial Magistrate, on appreciation of oral and documentary evidence came to hold that there was violation of the provisions enshrined under Rule 7(3) of the Rules of 1955, as the report of Public Analyst contained in Ex.P/10 was not sent within the statutory period as provided under the Rules; the Food Inspector could not have launched the prosecution as he had no authority to do so; the colour present in the seized food articles is a prohibited colour, but in absence of mention of quantity, it cannot be held that it was adulterated; it has not been stated by the Food Inspector that he had sent the sample and specimen seal separately in the Form VI to the Public Analyst and other authorities as envisaged under the Rules; there is no evidence indicating the date on which the report of Public Analyst was sent to the accused as enjoined under Section 13(2) of the Act; there has also been violation of Section 14 of the Act as the sample of the food in question was collected in three plastic bags; and lastly there was grave suspicion with regard to the collection of samples from the accused. ‘6. Assailing the impugned judgment, Mr. Raj Kumar Verma, learned Panel Lawyer for the State has contended that the learned Magistrate has fallen into error in appreciation of the evidence as led by the Food Inspector as it is vividly clear that there has been due compliance of the Rules relating to collection of samples and sending of memorandum and the impression. It is also his submission that the learned trial Magistrate has erroneously come to hold that there has been violation of Rule 7(3) of the Rules. The learned Panel Lawyer has also criticised the findings pertaining to the Authority of the Inspector to launch the prosecution. It is also his submission that the learned trial Magistrate has erroneously come to hold that there has been violation of Rule 7(3) of the Rules. The learned Panel Lawyer has also criticised the findings pertaining to the Authority of the Inspector to launch the prosecution. The analysis of the learned Magistrate with regard to use of colour and its quantity in the food articles has also been assailed by the learned counsel highlighting that learned Magistrate has committed gross illegality in observing the quantity of the colour when there is an ample evidence on record that the said colour was totally prohibited and did not come within the ambit of permissible colours. Mr. Verma, learned counsel for the State has attacked the finding pertaining to the non-supply of the analyst's report on the ground that the evidence has been adduced by the Food Inspector that the same had been despatched and the postal receipt has been brought on record. The learned counsel has argued that the findings given in regard to non-collection of sample and non-service of notice on the accused is unsustainable inasmuch as an error had crept in the notice indicating the name of one Loknath in place of the accused person, respondent herein. 7. Shri Surendra Singh, learned senior counsel for the accused- appellant, per contra, has contended that the learned Magistrate was justified in holding that there had been non-compliance of the rules and no fault can be found with it. The learned counsel has further pointed out that the basic foundation of the case is service of notice in Form VI and the collection of samples and as there is serious doubt relating to the same, the accused is entitled to the benefit of doubt and hence, the findings of the learned Magistrate on that score cannot be regarded as erroneous. It is also urged that the view taken by the trial Magistrate, in the facts and circumstances, is a plausible one and does not warrant reversal in exercise of appellate jurisdiction of this Court. 8. To appreciate the rival submissions raised at the Bar, I have bestowed my anxious consideration and perused the impugned judgment. I have been taken through the evidence on record. The learned Magistrate has held that there has been violation of Rule 7(3) as the report was not sent within the period prescribed under the Rules. 8. To appreciate the rival submissions raised at the Bar, I have bestowed my anxious consideration and perused the impugned judgment. I have been taken through the evidence on record. The learned Magistrate has held that there has been violation of Rule 7(3) as the report was not sent within the period prescribed under the Rules. He has also opined that the date of receipt of the report by the Public Health Authority has been mentioned to be 3-10-1985 but it cannot be the conclusive proof of the fact. A finding has been returned that it was not despatched by the Public Analyst within the period specified under Rule 7(3) of the Rules. The Rule 7(3) of the Rules which is relevant for our purpose, reads as under : "Rule 7. Duties of Public Analyst: (1)xxxxxxxxx (2)xxxxxxxxx (3) The Public Analyst shall, within a period of forty five days from the date of receipt of any sample for analysis, send by registered post or by hand to the Local (Health) Authority a report of the result of such analysis in Form III." The learned Magistrate proceeded on the basis that the aforesaid Rule is Mandatory. In this context, I may usefully refer to the decision rendered in the case of T. V. Usman v. Food Inspector, Tellicherry Municipality, AIR 1994 SC 1818 , wherein the Apex Court has held as under : "Rule 7(3) requiring copy of report of result of the analysis to be provided to Local Health Authority within a period of 45 days is directory." In view of the aforesaid pronouncement of law, it can safely be concluded that the finding of the learned Magistrate on this score is absolutely untenable. 9. The next finding which has been recorded by the learned Magistrate is that the Food Inspector had no authority to launch the prosecution. This finding is unsustainable inasmuch as the State Government has brought a Notification No. 7770/XVII, dated 31st December, 1959, in exercise of the powers conferred by sub-section (1) of Section 20 of the Prevention of Food Adulteration Act, 1954 and in supersession of the earlier notification, whereby it has authorised all the Food Inspectors, appointed under the said Act to institute or give written consent to launch prosecution for offences under the Act within the local area respectively assigned to them. In view of this notification, the conclusion of the learned Magistrate in this regard is vulnerable. 10. The learned Magistrate has taken exception to non-mentioning of specified quantity of colour in the report (Ex.P/10). I have perused the report (Ex.P/10) given by the Public Analyst. The Public Analyst has found the prohibited colour in the seized food article. In this connection it is worthwhile to refer to Rule 23 of the Rules which reads as under : "Rule 23. Unauthorised addition of colouring matter prohibited. -The addition of a colouring matter to any article of food except as specifically permitted by these rules is prohibited." If a non-permitted colour is used in the food article, the accused is liable for conviction. This view of mine gets fortified by the decision rendered in the case of Food Inspector, Bhimavaram Municipality v. K. Venkateswarulu, 1994 Cr.L.J. 414. Thus, the conclusion arrived at by the learned Magistrate is unacceptable. 11. The learned Magistrate has arrived at the conclusion that there has been violation of Rules 17 and 18 as the containers of samples and the copy of memorandum and specimen impression of seal were not sent in the manner as envisaged under the said Rules. On a perusal of the statement of PW.1, R. R. Shrivastava, Food Inspector, it is noticed that memorandum and impression of seal were sent separately and in support of the same documents have been brought on record as Ex.P/5, P/6 and P/7. There is no basis to doubt those documents. In fact, the learned Magistrate has not discussed these documents and in a cryptic manner has arrived at the conclusion. Hence, I am of the considered opinion that there has been no violation of Rules 17 and 18 of the Rules. 12. As far as violation of Section 13(2) of the Act is concerned, I find that the conclusion arrived at by the learned Magistrate is based on some conjectures. On a perusal of the evidence of PW-1, R. R. Shrivastava, Food Inspector, it is clear that he had sent a copy to the accused by registered post, vide Ex.P/12, which has been received by the accused vide Ex.P/14. There is no reason to hold that the aforesaid evidence is impeachable. Hence, the finding of the trial Court on this score is unsustainable. 13. There is no reason to hold that the aforesaid evidence is impeachable. Hence, the finding of the trial Court on this score is unsustainable. 13. Lastly, the learned Magistrate has held that no proper notice was served on the accused in Form No. VI. In this context, I may refer to Rule 12 which deals with the notice of intention to take sample for analysis. The said rule reads as under : "Rule 12. Notice of intention to take sample for analysis. - When a Food Inspector takes a sample of an article for the purpose of analysis, he shall give notice of his intention to do so in writing in Form VI, then and there, to the person from whom he takes the sample and simultaneously, by appropriate means, also to the person, if any, whose name, address and other particulars have been disclosed under Section 14A of the Act: Provided that in case where a Food Inspector draws a sample from an open container, he shall also draw a sample from the container in original condition of the same article bearing the same declaration, if such container is available, and intimate this fact to the Public Analyst." Form VI has been prescribed in the aforesaid rules. The said Form has been brought on record by the prosecution as well as by the accused. It has also been confronted to the Food Inspector. The Food Inspector in his evidence in paragraph twelve has stated that he had not issued notice in the time of Loknath, but he was not aware that how the name of Loknath came to be recorded in Ex.P/2. The Food Inspector has voluntarily stated that the name of Loknath might have been entered because of wrong mentioning of the name by the accused and the same might have been rectified later on. Reading this evidence conjointly with the evidence of PW-2, Laxman, it is clear that the accused was not present in the hotel, but his younger brother Loknath was present. Laxman has been declared hostile. Appreciating the aforesaid evidence in proper perspective and considering the circumstance in entirety, I am inclined to accept the conclusion arrived at by the learned Magistrate that notice was not served on the accused and the samples were not collected from the accused. The finding of the learned Magistrate on this score, appears to be reasonable. Appreciating the aforesaid evidence in proper perspective and considering the circumstance in entirety, I am inclined to accept the conclusion arrived at by the learned Magistrate that notice was not served on the accused and the samples were not collected from the accused. The finding of the learned Magistrate on this score, appears to be reasonable. As this finding goes to the very root of the matter, the ultimate view taken by the learned Magistrate cannot be faulted. 14. In view of the aforesaid premises, the appeal, being devoid of merit, stands dismissed.