JUDGMENT 1. This Criminal Appeal has been filed by the appellant/State against the judgment and order dated 30.1.1988 passed by Judicial Magistrate, 1st Class, Janjgir in Criminal Case No. 321 of 1982, whereby the accused/respondents have been acquitted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (For short "the Act"). 2. The Prosecution case in brief was that on 18.2.1982 at village sheorinarayan. during the annual sheorinarayan Mela (Fair), the accused/respondent No. 1 was carrying on a sweet-meats shop wherein he was preparing and selling 'Jalebi', 'Bhajia' etc. The Food Inspector, A. Pasha (PW I) visited his shop and after introducing himself in the presence of witnesses purchased 600 gms of 'Maida' after paying Rs. 1.80 as price thereof. The sample of Maida purchased as above \vas divided into three equal parts which were kept in three separate dry and clean polythene bags. Each polythene bag was securely fastened, labelled and sealed as per rules. One sealed sample was sent to Public Analyst, Bhopal for analysis and remaining two samples were sent to the Local Health Authority, Bilaspur. The Public Analyst, Bhopal after analysing the contents of the. sample submitted his report (Ex. P-13). As per report (Ex. p-13), the said 'Maida' was found adulterated as it did not conform the standards laid down under prevention of Food Adulteration Rules, 1955 (For short "The Rules"). The accused/respondent No.1 had purchased the said 'Maida' from the shop of accused/respondent No. 2 and therefore after completion of the investigation, a complaint was presented against both of the accused/respondents. 3. The learned Trial Magistrate after evaluating the evidence on record held that the prosecution failed to establish that the said "Maida" was purchased by accused/respondent NO.1 from the accused/respondent No.2 and therefore the accused/ respondent No.2 was not responsible for the alleged adulteration. The learned Trial Magistrate further held that . the prosecution failed to fulfil the requirement of Section 7(3) of the Act which provides that the report of Public Analyst should be sent to the local health authority within 45 days from the date of receipt of sample. By the impugned judgment, the learned trial Magistrate, therefore, acquitted both of the accused/respondents. Aggrieved by the impugned judgment and order, the appellant/State has filed the present appeal. 4. By the impugned judgment, the learned trial Magistrate, therefore, acquitted both of the accused/respondents. Aggrieved by the impugned judgment and order, the appellant/State has filed the present appeal. 4. The learned Panel Lawyer appearing for the appellant/State challenged the finding of the learned Trial Magistrate that the non-receipt of the report of the Public Analyst, Bhopal by the Local Health Authority, Bilaspur within the stipulated period 45 days is fatal to the prosecution, and urged that the same is unsustainable in law. The learned counsel for the accused/respondent No. 1 fairly conceded that the finding as above of the learned Trial Magistrate is deed unsustainable. He, however, urged that the accused/respondents were not liable to be prosecuted and convicted as the provisions of Rule 14 of the Rules have been violated None appeared for the accused/respondent No.2 5. Having heard the learned counsel for both the parties and having gone through the entire record, I am of the view that the finding of acquittal recorded by the learned Trial Magistrate against the accused/respondent No.2 is proper and legal and needs no interferenee. There is not an iota of evidence on record that the Impugned Maida' was sold by accused/respondent No 2 to the accused/respondent No. 1 and therefore the former cannot be held responsible for its having been found adulterated. The receipt (Ex. P-7) simple refers Rs. 216.00 against" Maida Jabalpur Bag one". The contents of the said receipt do not disclose that the 'Maida" in question was purchased by the accused/respondent No 1 from the shop of the accused/respondent No 2. In view of the total absence of any material or evidence against the accused/respondent No.2, the finding of acquittal recorded by the learned Trial Magistrate against the accused/respondent No.2 is wholly justified and calls for no interference. 6. The second finding of the learned Trial magistrate that the accused/respondents are not liable to be prosecuted and convicted for non-compliance of the provisions of Section 7(3) of the Act, is indeed unsustainable in law. The counsel for the accused/respondent No. 1 has rightly conceded that this finding and consequent acquittal of the accused/respondents on the basis of such finding was not proper. 7. The learned Magistrate has observed that by not sending the report of the Public Analyst within the stipulated period of 45 days, the prosecution has violated the provisions of Section 7(3) of the Act. 7. The learned Magistrate has observed that by not sending the report of the Public Analyst within the stipulated period of 45 days, the prosecution has violated the provisions of Section 7(3) of the Act. It appears that the learned Magistrate by mistake quoted Section 7(3) of the Act. Indeed it should have been Rule 7(3) of the Rules. The Supreme Court in P.V Usman v. Food Inspector Pelicheri Municipality [1994 SCC (Criminal) 187] has held that the provisions prescribing period of 45 days under Rule 7(3) are not mandatory and fatal unless accused establishes that prejudice was caused to him on account of such delay. The provisions are director and hence non-compliance thereof shall not vitiate the prosecution unless it takes away the right of the accused under Section 13(2) of the Act. In view of the above pronouncement of the Apex Court, the finding of learned Magistrate that the trial has been vitiated for non-compliance of the Provisions of Rule 7(3) of the Rules cannot be sustained 8. The learned Counsel for the accused/respondent No. 1, placing reliance on State of Punjab v. Ruman Kumar [1988 (1) Prevention of Food Adulteration Cases Page 9] has vehemently contended that the sample of "Maida" was sent for analysis to the Public Analyst, Bhopal in a polythene bag while it was mandatory as per provisions of rule 14 of the Rules that it should have been sent either in bottle or in jar or in any other suitable container He has further contended that the polythene bag is not a suitable container and therefore the accused/respondent No. 1 was not liable• to be convicted as the mandatory requirement was not complied with. 9. To properly appreciate the contention as above of the learned counsel for the respondent No. 1. it will be useful to quote Rule 14 of the Rules alleged to have been violated. It readsu "Rule 14. Manner of sending samples/hr analysis -- Samples of load for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage. evaporation. or in the case of dry substance, entrance of moisture and shall be carefully scaled." 10. In the instant case the sample was not taken in bottle or in a jar but as noticed earlier was taken in polythene bag. The question that. therefore. evaporation. or in the case of dry substance, entrance of moisture and shall be carefully scaled." 10. In the instant case the sample was not taken in bottle or in a jar but as noticed earlier was taken in polythene bag. The question that. therefore. arises for consideration is as to whether the polythene bag could be treated as suitable container within Rule 14 of the Rules. It is clear that polythene bags arc of varied qualities and it could not be as a general rule laid down that the polythcl1e bags would not constitute or cannot be treated as suitable container 11. It may be noticed that the Andhra Pradesh High Court while dealing with the similar question in Food Inspector. Bhimavaram Municipality v. K. Venkateswarulu (1994) Criminal Law Journal 414 has observed that the only requirement of Rule 14 is that the sample shall be sent in clean dry batiks or in clean dry jars or other suitable clean dry containers and therefore, apart from bottles and jars other suitable containers arc also within the comprehension of Rule 14. It has further ruled that there is nothing in Rule 14 which precludes a plastic container to be considered as a suitable container. The relevant passage of the said judgment reads: . "Counsel submitted that it is easy to tamper with a polythene bag. This may perhapse be true. But it shall rather be part of the defence of the accused during the course of trial to plead that either the container was not suitable. or that it was not closed sufficiently tight or it had not been carefully scaled so as to prevent tampering with the sample. We have carefully perused the judgment. We have also examined the evidence which was led before the trial Court No such defence was raised during the course of trial the mere possibility of tampering with containers is not confined and to plastic containers. It may equally apply to bottles and jars. If the prosecution should fail in all cases here there is a distant possibility of tampering with the contall1er. it may not be possible to sustain any proceeding under the prevention of Food Adulteration Act We are therefore. not persuaded to accede to this submission urged by the respondent. " 12. I find myself in respectful agreement with the above proposition. it may not be possible to sustain any proceeding under the prevention of Food Adulteration Act We are therefore. not persuaded to accede to this submission urged by the respondent. " 12. I find myself in respectful agreement with the above proposition. It is not unknown that the polythene bags arc water-proof and if proper closed. could prevent leakage, evaporation and entrance of moisture. It is also manifest that even liquid and semi-liquid substances can be properly packed in polythene bags as they continue to remain air-tight so long as they remain closed. Therefore. in my considered view it cannot be laid as a universal rule that polythene bags would not' constitute proper containers as is provided under Rule 14 of the Rules. It is a question of fact to be decided in each case whether• polythene bag was closed sufficiently tight to prevent leakage. evaporation and entrance of moisture. It is, therefore, clear that besides the bottles and jars pol thene bags can also be suitable containers and could thus. fulfil the requirement of Rule 14 of the Rules unless they are shown to be unsuitable. On earefu consideration of spirit and language of Rule 14 of the Rules would disclose the intent of the legislature to secure the sample taken in a mariner that ensures the preservation of the samples in the same condition in which it was taken. Thus, the language of Rule 14 clearly indicates that the necessary requirements to consider a container as suitable container are as under: -(i) the container should be clean and dry; (ii) it should be suitable as a container: (iii) it should be closed sufficiently tight to prevent leakage or evaporation: (iv) in case of dry substance. it should also be closed sufficiently tight to prevent entrance of moisture: 'and. (v) It should be carefully sealed. Suitable polythene bag clearly can fulfil the criteria as above. Consequently. there appears to be no cogent or plausible reason as to why the polythenc bag should not be treated as suitable container as is provided under Rule 14 of the Rules as also the view taken by the Andhra Pradesh High Court in the case of Food Impector. Bhimavaram Municipality v. K. Venkateswaru/u (supra). Thus merely because the sample was taken in polythene container by Itself does not VIOlate Rule 14 of the Rules and therefore the trial is not vitiated. It cannot. Bhimavaram Municipality v. K. Venkateswaru/u (supra). Thus merely because the sample was taken in polythene container by Itself does not VIOlate Rule 14 of the Rules and therefore the trial is not vitiated. It cannot. therefore, be laid down as an invariable rule that the prosecution shall always be vitiated if the sample is taken in polythene bag. 13. The learned counsel for the respondent No.1 has placed reliance, as pointed earlier on the observation made by the Punjab and Haryana High Court in the case of State of Punjab v. Raman Kumar (supra) wherein a view was taken that a polythene container or a wrapper of strong thick paper cannot conformed to the definition of container as given in Rule 14 of the Rules. It has further been observed in the above context that polythene bags have got a chance of being pierced, they are more susceptible of moisture, roddents, pests and even can burst when a little pressure is applied to them and that they cannot be closed tightly to prevent leakage etc. However, the criticism as above can also be levelled against bottles or jars referred in Rule 14 of the Rules. It is pertinent to note in the above context that Rule 14 of the Rules does not specify the material of the bottles or jars in which the sample could be taken. Therefore. a bottle or jar made substantially of san1e material as that of the polythene bag could be used as the bottles or jars in which the sample could be legally taken under Rule 14. It does not,' therefore, stand to reason that the polythene bag as a general rule cannot constitute a suitable container. 14. For the aforementioned reasons, with due respect, I am unable to subscribe to the above reasoning of the Punjab and Haryana High Court. I am as pointed out earlier, in respectful agreement with the view taken by the Andhra Pradesh High Court in the case of Food Inspector. Bhimqvaram Municipality v. K. Venkateswarulu (supra) and accordingly he1d that it cannot be laid down as a general rule that polythene bag cannot constitute a suitable container. 15. In the instant case, it is evident from the statement of Food Inspector. Bhimqvaram Municipality v. K. Venkateswarulu (supra) and accordingly he1d that it cannot be laid down as a general rule that polythene bag cannot constitute a suitable container. 15. In the instant case, it is evident from the statement of Food Inspector. A. Pasha (PW-I) that the sample was taken in polythene bag and legal fom1alities of securing the sample by securely tying the polythene bag and sealing the same were duly undertaken. There is no challenge to the above statement. Thus, it appears that the sample was taken in a suitable container, hence the contention of the learned counsel for the respondent No. I raised for the first time that since the sample was taken in polythene bag which was not a suitable container conforming to the requirement of Rule. 14 of the Rules, cannot be accepted. 16. It has next to be considered as to whether the appellant had kept the seized maida for sale etc. as is the requirement of Section 7 or Section 10 of the Act. In the above context, it is evident from the statement of Food' Inspector, A.Pasha (PW -1) that the respondent No. 1 is a small shop-keeper who prepares sweet-meats including' Jalebi. It is also evident from the statement of A. Pasha (PW-1) that the 'Maida', the sample of which was taken by him was kept in a closed bag which was admittedly opened by him and sample therefrom was taken. The respondent No. 1 has stated that he purchased the 'Maida' and brought it to the shop for preparation of Jalebi. It would, thus, emerge from the above material on record that though the appellant was in possession of the 'Maida' of which sample was taken but the "Maida' was not kept by the respondent No. 1 for sale. In fact it appears to have been kept for preparing Jalebi, therefore the possession and custody of the 'Maida' by the respondent No. 1 by itself would not constitute breach of Section 7 of the Act. In the case of Municipal Corporation of Ddhi v. Laxman Narain Tandon & others AIR 1976 SC 621 , the Apex Court has ruled that the storing expression etc. must be for 'sale' in order to make it an offence. Storage simpliciter would not be an offence. In the case of Municipal Corporation of Ddhi v. Laxman Narain Tandon & others AIR 1976 SC 621 , the Apex Court has ruled that the storing expression etc. must be for 'sale' in order to make it an offence. Storage simpliciter would not be an offence. If an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred to in sub-section 1 (a) and (2) of Section 10 of the Act, the' Food Inspector will not be competent, under the law, to take a sample and on such sample being found adulterated to validly lalunch the prosecution thereon. 17. Similarly, in State of Maharashtra v. Mumhi Kumar Arora (1979) (1) FAC 288, the Bombay High 'Court has also ruled that storing an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a) of the Act. 18. Thus the ratio of above cases is that the article of food of which saw-pic is taken should have been kept for sale by the accused. This does not appear to be seen in this case as noticed above. Therefore, the respondent No. 1 cannot be held guilty of offence under Section 7 read -with Section 16 of the Act. 19. In view of above, I do not consider it proper to interfere in the finding of acquittal recorded by the learned trial Court, though for different reasons which were given by the learned trial; Court. The appeal is, therefore, dismissed.