JUDGMENT C.K. Thakker, CJ.—This appeal is filed against the judgment and order of acquittal recorded by the Sessions Judge on January 6, 1997, in Criminal Appeal No. 8 of 1988, by which he set aside an order of conviction and sentence passed by Judicial Magistrate, 1st Class (I), Hamirpur, dated March 3, 1988, in Case No. 20/111/86. 2. The case of the prosecution was that on June 26, 1986, at 1.30 p.m., Kashmir Singh Verma, Food Inspector, visited the shop of accused Desh Raj at Village Lambloo. According to the prosecution, the accused was a Kirana merchant. He had kept in his shop 20 packets of Madhu. Mirch weighing 80 grams each along with other eatable articles. Mr. Verma disclosed his identity and expressed his intention to purchase Madhu Mirch for the purposes of analysis. He, accordingly, purchased nine packets of Madhu Mirch in their original packing on payment of Rs. 18.00. Those packets then were wrapped in three wrapping papers. After completing necessary formalities as provided in the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act) and the Prevention of Food Adulteration Rules, 1955, (hereinafter referred to as the Rules), the Food Inspector sealed those packets and obtained signature of the accused on each packet. He had also taken along with him, two persons, Joginder Singh and Jaishi Ram as witnesses, who also signed necessary Panchnama and other documents. One of the sealed packets, along with Memo VII, was then sent to Public Analyst, Kandaghat, under registered envelope. A memo in Form VII along with impression of seal used for sealing the sample was separately sent by another registered letter. Remaining two sealed packets were deposited with the Local Health Authority at Hamirpur. According to the prosecution, as per the report of Public Analyst Ex. PE, the sample was found to be adulterated and misbranded. A complaint was, therefore, filed against the accused and a case was, registered for an offence punishable under Section 16 (l)(a)(i) read with Section 7 of the Act. The accused pleaded not guilty to the charge and claimed to be tried. 3. On the basis of the evidence recorded at the trial,- the learned Magistrate framed the following points for determination : "Point No. 1 Whether there is violation of Rule 14 of Prevention of Food Adulteration Rules, 1955? The accused pleaded not guilty to the charge and claimed to be tried. 3. On the basis of the evidence recorded at the trial,- the learned Magistrate framed the following points for determination : "Point No. 1 Whether there is violation of Rule 14 of Prevention of Food Adulteration Rules, 1955? Point No. 2 Whether prosecution has failed to prove the sale of Madhu Mirch? Point No. 3 Whether sanction obtained by Food Inspector is valid? Point No. 4 Final order?" 4. After considering the prosecution evidence, the learned Magistrate held that it was proved by the prosecution that the accused sold Madhu Mirch to the complainant-Food Inspector. The article was found to be adulterated and thus, the accused had committed an offence with which he was charged. So far as sanction granted to prosecute the accused was concerned, it was held to be legal and valid. There was no violation of Rule 14 of the Rules. Accordingly, the learned Magistrate convicted the accused and directed him to undergo rigorous imprisonment for one year and also to pay fine of Rs. 2,000. In default of payment of fine, he was ordered to undergo simple imprisonment for six months. 5. Being aggrieved by the order of conviction and sentence, the accused preferred an appeal before the Sessions Court. One point for determination was framed by the lower Appellate Court as to whether the judgment of conviction and sentence impugned in the appeal warranted interference. After reappreciating the prosecution evidence, the learned Sessions Judge held that by convicting the accused, the trial Court had committed an error and hence interference was called for. In the opinion of the Sessions Court, from the evidence of an independent witness7, PW 3 Joginder Singh as also from cross-examination of prosecution witnesses and the version of accused in his further statement under Section 313 of the Code of Criminal Procedure Code, 1973, (hereinafter referred to as the Code), Madhu Mirch was not found from the shop of the accused and it was not for sale. It was kept in the other room in which he was residing. It was kept in the other room in which he was residing. Inspite of objection being raised by the accused and though the accused specifically told the Food Inspector that Madhu Mirch was not for sale, but it was purchased for personal use for the occasion of his sisters marriage, which was on June 20, 1986 and when it was not found to be of good quality, it was kept inside so that it could1 be returned to the merchant at Delhi from whom it was purchased, the Food Inspector took it as a sample. The learned Sessions Judge held that since the article was not for sale, the provisions of the Act were not applicable. The accused, therefore, could not be said to have committed an offence with which he was charged. Accordingly, he allowed the appeal and set aside conviction and sentence. The said order is challenged by the State in present appeal. 6. I have heard Mr. M.L. Chauhan, learned Deputy Advocate General for the appellant and Mr. Kuldip Singh, learned Senior Counsel with Ms. Jyotika, Counsel for the respondent. 7. It was strenuously argued by Mr. Chauhan that an error of fact as well as of law has been committed by the Sessions Court in interfering with the order of conviction and sentence recorded by the trial Court. In the submission of the Counsel, from the evidence on record, it was clearly established that the Food Inspector visited the shop of the accused on June 26, 1986. He disclosed his identity and informed the accused that he wanted to purchase Madhu Mirch for analysis, which was kept in the shop for sale. The accused, accordingly, sold nine packets of Madhu Mirch after receiving an amount of Rs. 18.00. At the time of purchase, the Food Inspector had kept two independent panchas present. They were PW 3 Joginder Singh Panch I, and PW 4 Jaishi Ram Panch II. After completing necessary normalities prosecution was launched against the accused. Evidence was led by the prosecution in the Court. The case was fully supported by PW 1 Food Inspector Verma and PW 4 Jaishi Ram Panch II. PW 3 Joginder Singh Panch I, no doubt, did not fully support the case of the prosecution, but even from his evidence, it was proved that he was present and he had signed the Panchnama. The case was fully supported by PW 1 Food Inspector Verma and PW 4 Jaishi Ram Panch II. PW 3 Joginder Singh Panch I, no doubt, did not fully support the case of the prosecution, but even from his evidence, it was proved that he was present and he had signed the Panchnama. The factum of purchase of Madhu Mirch was thus established from evidence of PW 1, PW 4 as also from the evidence of PW 3. Necessary documents such as notice given to the accused, receipt of payment of Rs. 18.00 and Panchnama were prepared. All those documents were signed not only by the Food Inspector and panch witnesses but also by the accused. From the report of Public Analyst, it was established that the sample was found to be adulterated and misbranded. The trial Court was, therefore, according to the learned Deputy Advocate General, was fully justified in convicting the accused for the offence with which he was charged. It was urged that the defence of the accused that packets of Madhu Mirch were not in the shop but inside the residential portion was false, concocted and an afterthought. The defence was taken belatedly. When the said defence was not believed by the trial Court, it ought not to have been accepted by the learned Sessions Judge. It was also submitted that the evidence of PW 1 Food Inspector Verma and PW 4 Jaishi Ram was trustworthy and reliable and there was no reason for the Sessions Court to discard it. After seeing the demeanour of witnesses, the trial Court reached a conclusion recording a finding against the accused. The appellate Court, without there being proper, valid and cogent reasons, interfered with the said finding. By doing so, an error has been committed, which deserves to be corrected by this Court. It was, therefore, prayed that the order passed by the Sessions Court may be set aside and the order passed by the Judicial Magistrate may be restored. 8. Mr. Kuldip Singh, learned Senior Counsel, on the other hand, supported the order of acquittal passed by the Sessions Court. The counsel submitted that in exercise of appellate jurisdiction, the Sessions Court reappreciated the evidence on record and considering totality of facts and circumstances, observed that Madhu Mirch was not for sale and hence, the provisions of the Act were not applicable. The counsel submitted that in exercise of appellate jurisdiction, the Sessions Court reappreciated the evidence on record and considering totality of facts and circumstances, observed that Madhu Mirch was not for sale and hence, the provisions of the Act were not applicable. The Sessions Court also found that it was the case of the accused not only during the cross-examination of prosecution witnesses, but also in his further statement under Section 313 of the Code that the packets were not in the shop, i.e., in the front part where other food articles were kept for sale, but they were in the rear part of the room where the accused was residing. It was also his case that when Food Inspector Verma disclosed his identity and told the accused to sell packets of Madhu Mirch, the latter objected specifically informing the former that they were not for sale. The accused stated that he had purchased Madhu Mirch packets from Delhi for use in marriage of his sister, which took place on June 20, 1986 but as the Cook was of the opinion that it was not of good quality, they were tied with a string and kept in a box so that they could be returned to the merchant from whom they were purchased. The defence version was supported by prosecution witnesses PW 3 Joginder Singh, Panch I who was in independent witness. When the defence was believed by the Sessions Court and the accused was ordered to be acquitted, it cannot be said that the lower Appellate Court had committed an error, which requires to be corrected. The counsel also urged that a question was required to be put in the further statement of the accused under Section 313 of the Code of the right of the accused to get the sample analysed under sub-section (2) of Section 13 of the Act. Unless and until a question is put to the accused that he was afforded an opportunity to avail that right, he cannot be convicted. Since the mandatory provisions had not been complied with, serious prejudice had been caused and no conviction could be ordered. It was also submitted that independent witnesses were available and yet they were not examined. The counsel urged that from appreciation of evidence, two views are possible. Since the mandatory provisions had not been complied with, serious prejudice had been caused and no conviction could be ordered. It was also submitted that independent witnesses were available and yet they were not examined. The counsel urged that from appreciation of evidence, two views are possible. When the case of the accused was that the article was not for sale and it was not kept in the shop for the purpose of sale, that view was not impossible. Canvassing a proposition that it is not necessary for the accused to prove his defence beyond reasonable doubt, the counsel submitted that as per well established principle of law, the accused has to prove his case by preponderance of probabilities. The standard of proof qua prosecution and defence is not the same and the lower appellate court was wholly justified in relying on the defence and upholding it and no interference is called for. Finally, it was submitted that even if this court is convinced that an order of acquittal recorded by the lower appellate Court deserves interference, this Court may consider that the incident was of 1986 and after such a long period, it would not be appropriate to remand the case to the Sessions Court for fresh disposal. This is eminently a fit case, submitted the counsel, to draw a curtain by making a declaration of law but without interfering with the conclusion arrived at by the Sessions Court. 9. Few important questions arise for determination of this Court in the light of rival contentions of the parties. The first and foremost question on which both the sides made submissions at length is whether the article in question (Madhu Mirch) sold by the accused to PW1 Food Inspector for the purpose of analysis could be said to be sale under the Act and whether provisions of the Act would apply. In this connection, my attention was invited by the counsel to evidence on record. 10. Now, PW 1 Food Inspector Verma in his substantive evidence before the Court stated that on June 26, 1986, at about 1.30 p.m., he visited the shop of the accused. The accused was sitting in the shop and transacting business. The complainant disclosed his identity and desired to purchase an article of Food. He stated that apart from other eatables in the shop there were twenty packets of Madhu Mirch of 80 gms. The accused was sitting in the shop and transacting business. The complainant disclosed his identity and desired to purchase an article of Food. He stated that apart from other eatables in the shop there were twenty packets of Madhu Mirch of 80 gms. each, which were kept for sale. The Food Inspector then gave the accused notice Ex. PA and purchased nine packets in original condition after paying an amount of Rs. 18.00. A receipt was also issued by the accused which was produced by him at Ex. PB. Then necessary formalities were performed by him. A Panchnama was also prepared as Ex. PC. He also stated that he had obtained signatures of panchas as well as accused on all those documents; namely, notice, receipt and Panchnama. The documents signed by the Food Inspector, Panchas and the accused are on record. 11. In cross-examination, PW 1 admitted that there were two rooms in the shop of the accused. On the front portion, there was a big room. He, however, did not see the accused staying in the other room. In further cross-examination, he stated that packets of Madhu Mirch were in a rack, which was near the counter in the shop. He specifically denied that those packets were tied with a string, kept in a box and the said box was inside the residential room of the accused. He also denied that though the accused told him that Madhu Mirch was not for sale and raised an objection, yet under coercion or compulsion, he purchased the sample of Madhu Mirch. He denied that he had falsely implicated the accused because of enmity. He stated that he could not say whether it was the third occasion where the sample in question was taken by him from the accused. 12. PW 4 Jaishi Ram (Panch witness II) wholly supported the case of the prosecution as also evidence of PW 1 Food Inspector. He stated that he had gone with PW 1 Verma to the shop of the accused. After paying an amount of Rs. 18.00, nine packets of Madhu Mirch were purchased by the Food Inspector He denied that the packets were inside the residence where the accused was staying. According to him, they were in the shop in the front part. He also stated that he did not see packets in a tin or in a box. After paying an amount of Rs. 18.00, nine packets of Madhu Mirch were purchased by the Food Inspector He denied that the packets were inside the residence where the accused was staying. According to him, they were in the shop in the front part. He also stated that he did not see packets in a tin or in a box. He narrated the formalities performed by the Food Inspector, preparation of Panchnama, etc. 13. PW 3 Joginder Singh (Panch I), no doubt, did not support case of the prosecution and at the request of the Food Inspector, he was declared hostile. He admitted that the Food Inspector purchased Madhu Mirch packets from the accused and samples were sealed in separate packets. He also admitted that he had put his signature on Exts. PA, PB and PC. He, however, stated that though he had refused to sign the documents at the instance of Food Inspector, he had put his signature. He stated that he was graduate and had studied upto B.A. and was knowing English well. Then he stated that when sample was taken, the accused was present at his shop. (JAB NAMUNA LIYA THA TO DESH RAJ DUKAN PER HAJIR THA). He stated that in his presence the accused did not put his signature. He denied that with a view to save the accused, he was deposing falsely. He also stated that he did not know whether PW 4 Jaishi Ram was present there at that time. 14. In cross-examination by the learned Counsel for the accused, he deposed that inner room was used by the accused as his residence. He then stated that Madhu Mirch Packets were in the residential room and were tied with a string and kept in a box. As per his version, the accused had stated that Madhu Mirch packets were not for sale. They were purchased by the accused through Suresh Kumar and were to be returned. He asserted that the Food Inspector did not believe the say of the accused and took those packets. According to him, one Dr. Rattan was also present. He stated that he did not know whether the accused had accepted any amount from the Food Inspector as after putting his signature, he had gone away. He had admitted that Food Inspector had prepared packets in his presence. According to him, one Dr. Rattan was also present. He stated that he did not know whether the accused had accepted any amount from the Food Inspector as after putting his signature, he had gone away. He had admitted that Food Inspector had prepared packets in his presence. Though he had admitted that all the forms were prepared by the Food Inspector on which signatures were taken but they were not read over. 15. This is in all evidence of prosecution witnesses. Before the trial Court, it was contended that the provisions of Rule 14 were not complied with. The trial Court held that all necessary formalities laid down in the rule were complied with by the Food Inspector and there was no breach or violation thereof. The contention of the accused about breach of Rule 14 was thus negatived. 16. The case of the accused that packets of Madhu Mirch were not for sale but were purchased for personal use and were kept inside the residential room was not believed by the learned Magistrate. It was observed that the defence version that packets were purchased for personal use for marriage of accuseds sister could not be believed as according to the accused, they were purchased through Suresh Kumar, son of Hari Ram but Suresh Kumar was not examined by the accused as a defence witness. It may be stated that defence had examined Prem Chand as DW 1. The learned Magistrate observed that from non-examination of Suresh Kumar, an adverse inference could be drawn against the defence that had Suresh Kumar been examined, he would not have supported the say of the accused. 17. Regarding non-voluntary sale, the trial Court observed that though PW 3 Joginder Singh supported the case of the accused, from the evidence of Food Inspector as well as Jaishi Ram, it was clearly established that packets were in the shop and were purchased by complainant Food Inspector. They were not inside the residential room of the accused. In the circumstances, it could not be believed that the packets were to be returned. The trial court proceeded to state that no such case was put forward by the accused before the Food Inspector. The said defence was, therefore, an afterthought. They were not inside the residential room of the accused. In the circumstances, it could not be believed that the packets were to be returned. The trial court proceeded to state that no such case was put forward by the accused before the Food Inspector. The said defence was, therefore, an afterthought. The learned Magistrate also stated : "This seems to be after thought defence and PW-3 Joginder Singh seems to have colluded with defence as such no reliance can be placed on his testimony that Madhu Mirch so purchased by Food Inspector was kept in residence and it was disclosed by accused that it was not meant for sale." 18. The accused accepted its price vide receipt Ex. PB and the said fact was admitted by him in his statement under Section 313 of the Code. According to the learned Magistrate, there was nothing on record to show pressure by the Food Inspector. Then, relying upon a decision of the Supreme Court in Mangatdas Raghavji Ruparel v. State of Maharashtra, AIR 1966 SC 128, he held that even if the sale was not voluntary, the provisions of the Act would apply to such sale. 19. The learned Sessions Judge, accepting the defence version and testimony of PW 3 Joginder Singh, held that there was no reason to disbelieve PW 3 when he supported the case of the accused. In the opinion of the learned Sessions Judge, PW 3 was an independent witness. The appellate Court also observed that though he was declared hostile at the instance of the Food Inspector, during his cross-examination nothing favourable to the prosecution could be extracted. In further cross-examination by the learned Counsel for the accused, the witness admitted that the accused was residing in the rear portion of the shop and packets of Madhu Mirch were kept by the accused in a Dibba (box) and were tied with a rope. The accused disclosed to the Food Inspector that the packets were not for sale and they were to be returned. In the opinion of the lower appellate Court, the said defence version remained uncontroverted. It also got corroboration from further statement of the accused under Section 313 of the Code and hence the accused was entitled to acquittal. 20. With due respect to the learned Sessions Judge, in my considered opinion, he failed to appreciate the evidence in its entirety. In the opinion of the lower appellate Court, the said defence version remained uncontroverted. It also got corroboration from further statement of the accused under Section 313 of the Code and hence the accused was entitled to acquittal. 20. With due respect to the learned Sessions Judge, in my considered opinion, he failed to appreciate the evidence in its entirety. To recall, the Food Inspector visited the shop on June 26, 1986, at about 1.30 p.m. He had taken along with him, two witnesses PW 3 Joginder Singh and PW 4 Jaishi Ram. From the evidence of prosecution witnesses, it was clearly established that two rooms were not side by side but one after the other. In the front portion, the accused was transacting business. It was suggested by the accused, during cross-examination of prosecution witnesses and also in his further statement under Section 313 of the Code that there was another room in rear portion where he was residing. It was positive case of Food Inspector that the accused was present in the shop. There was a rack near the counter and in one of the shelves of the said rack, Mirch Packets were found. He disclosed his identity and showed his intention to purchase Mirch packets for analysis. He then purchased nine packets by paying an amount of Rs. 18.00. Three documents were prepared namely, Ex. PA notice, Ex. PB receipt of Rs. 18.00 and Ex. P.C. Panchnama. It may be pertinent to note that all the three documents were signed by the complainant Food Inspector, both Panch witnesses, PW 3 Joginder Singh and PW 4 Jaishi Ram as also by accused Desh Raj. In the circumstances, in my opinion, the trial court was completely right in observing that the case of the accused that Mirch packets were in the residential room and they were not for sale, but were to be returned was incorrect and an after thought. 21. The matter, however, can be looked at from different angle as well. Apart from the fact that no such case was put forward by the accused to the Food Inspector, it was specifically stated by the Food Inspector in his testimony that he had not seen so called residential room of the accused. 21. The matter, however, can be looked at from different angle as well. Apart from the fact that no such case was put forward by the accused to the Food Inspector, it was specifically stated by the Food Inspector in his testimony that he had not seen so called residential room of the accused. In my opinion, the say of the Food Inspector appears to be much more probable and believable inasmuch as the so called residential room is in the rear portion of the shop. Moreover, the case of the accused in his further statement under Section 313 of the Code as also of hostile witness PW 3 Joginder Singh was that Madhu Mirch packets were not only inside the residential room of the accused but they were tied with a string and were in a DIBBA (box). Now if the packets were kept inside a residential room of a person in a box, obviously, they could not have been seen at all by the complainant. It was, therefore, not possible for the Food Inspector to see them, to ask the accused whether they were for sale, what was the price and his intention to purchase them for analysis. The Court, hence, has to consider the evidence of PW 1 Food Inspector and PW 4 Jaishi Ram vis-a-vis the evidence of hostile witness Joginder Singh and further statement of accused under Section 313 of the Code. Considering the rival versions and in the light of documentary evidence, Exts. PA, PB and PC, the trial Court was of the view that the defence put forward by the accused was concocted and afterthought and PW 3 colluded with the accused is much more probable. In cross-examination, PW 3 Joginder Singh had stated that he was an educated man having B.A. degree. He also admitted that after reading and understanding he was putting his signature. He, however, stated that the Food Inspector had not read over the forms filled in by him in the present case. The learned Magistrate was, therefore, in my view, wholly right in disbelieving evidence of PW 3 and the defence version and in believing the evidence on oath of Food Inspector Verma and PW 4 Jaishi Ram, Panch II. 22. In further statement of the accused under Section 313 of the Code, relevant questions were put to the accused. The learned Magistrate was, therefore, in my view, wholly right in disbelieving evidence of PW 3 and the defence version and in believing the evidence on oath of Food Inspector Verma and PW 4 Jaishi Ram, Panch II. 22. In further statement of the accused under Section 313 of the Code, relevant questions were put to the accused. The accused was asked that it was in evidence that on June 26, 1986, at about 1.30 p.m., Food Inspector Verma had visited his shop at village Lambloo. He admitted that it was correct. He was then asked that the Food Inspector had disclosed his identity and his intention to purchase Madhu Mirch which also he replied in the affirmative. The next question was that the accused was having about 20 packets of 80 grams each of Madhu Mirch alongwith other eatable articles in his shop on June 26, 1986 and he stated that 18 packets of Mirch were in his residential room, whereas remaining articles were in the shop. Question No. 5 was as under: "It is also in evidence that Food Inspector purchased nine packets of Madhu Mirch in their original packing on payment of Rs. 18 to you vide receipt Ex. P.B. for purposes of analysis. What have you to say about this?" The reply was that it was correct but he was not aware of the price. He was also asked whether notice Ex. PA was given to him which he replied in the affirmative. Similarly, he admitted about wrapping and sealing of packets, but added that PW 4 Jaishi Ram had come at the time of applying seal. He further admitted that he had put his signature on packets of samples. Regarding Panchnama, he admitted that Panchnama Ex. PC was prepared at the spot by the Food Inspector and that he (accused) and both prosecution witnesses Joginder Singh and Jaishi Ram had also put their signatures. In reply to the question, whether he wanted to state anything, the accused said that on June 20, 1986, there was a marriage ceremony of his sister. For that, he got purchased Mirch packets from Delhi. Those packets were rejected by the Cook. Thereupon, he kept those packets inside residential portion. They were tied with a string and kept in a box. For that, he got purchased Mirch packets from Delhi. Those packets were rejected by the Cook. Thereupon, he kept those packets inside residential portion. They were tied with a string and kept in a box. The Food Inspector entered the residential room and took out those packets and in spite of objection by the accused and statement that they were to be returned, the Food Inspector took sample for analysis. 23. In my opinion, the case put forward by the accused is not only an afterthought as observed by the trial Court but cannot be believed as it has been concocted only with a view to avoid consequences of the case launched by the prosecution against him. From the evidence of PW 1 Food Inspector Verma and PW 4 Jaishi Ram, Panch II, it was clear that packets of Madhu Mirch were in the front portion of shop in a rack and they were kept for sale to customers. The Food Inspector saw those packets, disclosed his identity and informed the accused that he wanted to purchase nine packets for analysis. It was never objected by the accused. The price was paid by the Food Inspector and receipt was also issued by the accused. Necessary documents were prepared, which were signed by the Food Inspector, Panchas and the accused himself. Had the packets were kept in residential portion, which was the rear part of the premises and they been tied with a string and kept in a box in that part of- the premises, it would not have been possible for the Food Inspector even to notice them. Therefore, the case of the prosecution, as deposed by PW 1 Food Inspector Verma and PW 4 Jaishi Ram, Panch II, appears to be much more reliable, acceptable and trustworthy and the comment of the trial Court that PW 3 Joginder Singh, Panch I, colluded with the accused with a view to help him is well founded. There was no reason to disbelieve sworn testimony of PW 1 and PW 4, particularly when PW 3 did not stick to what was stated in the Panchnama which was signed by him and even while not fully supporting the prosecution, he had to admit that he was a literate person and ordinarily he was putting his signature after reading and understanding the contents of writing. It was, thus, clearly established that Madhu Mirch packets were kept by the accused in his shop in a rack and they were meant for sale. Nine packets were sold by the accused to the Food Inspector after receiving an amount of Rs. 18.00 and thus, there was sale of food article within the meaning of the Act and the provisions of the Act were applicable. The accused was, therefore, legally and validly prosecuted and the lower appellate court committed an error in coming to the conclusion that the packets of Madhu Mirch were not kept by the accused in his shop and were not for sale. The said finding, therefore, cannot be upheld and is accordingly reversed. 24. In view of my finding recorded hereinabove, it is not necessary to enter into larger question. But since my attention was invited by the learned Counsel to certain decisions, I consider it appropriate to refer them. 25. Mangaldas Raghavji Ruparel, the accused was prosecuted for committing offences punishable under Sections 16 (l)(a) and 19 of the Act for selling adulterated turmeric powder. It was contended by him that since turmeric powder was not for sale, the provisions of the Act were not applicable and no conviction could be recorded against the accused. The question before the Supreme Court was whether the transaction in question of taking sample by the Food Inspector under Section 11 of the Act would amount to sale within the meaning of the Act and whether the accused could be prosecuted for infringement of Section 7 of the Act. 26. Replying the question in the affirmative, the Apex Court held that the Act had given a special definition of sale specifically including within its sweep a sale for analysis. Such sale, therefore, must be regarded as sale under the Act. Hence, a person, dealing in such sale could be prosecuted. Overruling the view taken by the High Court of Kerala in Food Inspector, Calicut v. Parameswaran Chettiar, (1962) 1 Cri LJ 152, the Court held that when a sale had been effected by a vendor for the purpose of analysis, a person making such sale could be prosecuted and could be convicted under the Act. 27. A similar view was taken by the Supreme Court in State of Tamil Nadu v. R. Krishnamurthy, AIR 1980 SC 538. 27. A similar view was taken by the Supreme Court in State of Tamil Nadu v. R. Krishnamurthy, AIR 1980 SC 538. There also, a similar contention was raised on behalf of the accused. Repelling the contention and reiterating the ratio down in Mangaldas Raghavji Ruparel, the Court observed that it was not necessary that the food article was intended for human consumption or for preparation of human food. It was also irrelevant that it was described or exhibited as intended for other use. It was enough if the article was generally or commonly used for human consumption or for preparation of human food. Stated the Court : "It is notorious that there are, unfortunately, in our vast country, large segments of population, who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purposes other than human consumption. It is to prevent the exploitation and self destruction of these poor, ignorant and illiterate persons that the definition of food is couched in such terms as not to take into account whether an article is intended for human consumption or not. In order to be food for the purposes of the Act, an article need not be fit for human consumption; it need not be described or exhibited as intended for human consumption, it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation pf human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not food. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is food." (Emphasis supplied) Dealing with the definition of sale, the Court proceeded to observe: "Now, the definition is designedly wide. It seems a real sale as well as an embryonic sale (like agreement for sale, offer for sale, exposure for sale, possession for sale, attempt at sale) are sales for the purposes of the Act. The sale may be for cash or credit or by way of exchange. The sale may be by wholesale or retail. Thus every kind, manner and method of sale are covered. Finally, the sale may be for human consumption or use, or for analysis. In the context, these words can only mean whether for human consumption or for any other purpose (including analysis). The object is to emphasis that whatever be the purpose of the sale it is a sale for the purposes of the Act, just as the words whether by wholesale or retail or whether for cash or credit or by way of exchange are intended to emphasis that it is immaterial for the purposes of the Act what manner and method of sale is adopted. To give any other interpretation to the definition of sale would be to exclude from the ambit of the Act that which has been included by the definition of food. Further, a sale for analysis can never be a sale for human consumption but it is nonetheless a sale within the meaning of the definition. It is an unqualified sale for the purposes of the Act. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for selling adulterated food." (Emphasis supplied) 28. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for selling adulterated food." (Emphasis supplied) 28. The learned Counsel for the accused, however, relied on a decision in Municipal Corporation of Delhi v. Laxmi Narain Tandon, (1976) 1 SCC 546, wherein the Court drew distinction between the expressions store and distribute on the one hand and sale on the other. It was also indicated that storage or distribution of an adulterated article of food for the purpose other than sale does not fall within the mischief of Sections 7 or 16 of the Act. Hence, if an article is not for sale, the Food Inspector is not competent under the law to take sample and even if such sample is found to be adulterated, no prosecution can be launched. The Counsel also referred to a decision of a Single Judge of the High Court of Bombay in State of Maharashtra v. Udayram Rupram Oza, 1977 Cri LJ 1807. Following Laxmi Narain Tandon, the High Court of Bombay held that the milk kept in tea shop not for sale but for being used as ingredient in preparation bf t£& would not fall within the meaning of sale under Section 2(xiii) of the Act. 29. Without expressing any opinion as to correctness or otherwise of the ratio laid down by a Single Judge of the High Court of Bombay in Udayram Rupram, (though prima facie it does not appear to be in consonance with the law laid down by the Apex Court in Mangaldas Raghavji Ruparel and Food Inspector, Calicut Corporation v. Cherukattil Gopalan, AIR 1971 SC 1725, the facts of present case are amply clear that the Mirch packets were kept by the accused in his shop for sale and they were purchased by the Food Inspector for analysis. Sale in question by the accused to Food Inspector was thus unquestionably sale within the meaning of Section 2 (xiii) of the Act, and it was competent for the Food Inspector to prosecute the accused for violation of the provisions of law. 30. Sale in question by the accused to Food Inspector was thus unquestionably sale within the meaning of Section 2 (xiii) of the Act, and it was competent for the Food Inspector to prosecute the accused for violation of the provisions of law. 30. Moreover, in Laxmi Narain Tandon, the Supreme Court ruled that the Food Inspector has jurisdiction to prosecute an accused provided the article is food. In the case on hand, Madhu Mirch was food and was kept for sale. The Food Inspector was, therefore, competent to purchase Mirch packets and he, accordingly, by making necessary payment, purchased the said article for analysis. Sale for analysis is also sale within the meaning of the Act, and hence, subject to the provisions of the Act and the Rules. The prosecution launched against the accused by the Food Inspector was, therefore, fully competent and in accordance with law. 31. It was next contended that no question was put to the accused under Section 313 of the Code about compliance with the provisions of sub-section (2) of Section 13 of the Act. Now, Section 13 of the Act deals with a report of Public Analyst. Sub-section (1) of Section 13 enacts that Public Analyst shall deliver in such form as may be prescribed a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for the purpose. Sub-section (2) thereof enables the accused to get a copy of the report of the analysis under sub-section (1) with an information that if he so desires he may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the food, kept by the Local (Health) Authority analysed by the Central Food Laboratory. 32. Indeed, the provision is salutary in nature and confers a valuable right on the accused to get the sample analysed through Central Food Laboratory if he wishes to do so. If the said right is infringed or violated, it would vitiate the trial. In the instant case, however, the said provision has not been violated. On the contrary, looking to the evidence on record along with documents, it is clearly established that the accused was sent a report received from the Local (Health) Authority. If the said right is infringed or violated, it would vitiate the trial. In the instant case, however, the said provision has not been violated. On the contrary, looking to the evidence on record along with documents, it is clearly established that the accused was sent a report received from the Local (Health) Authority. He was also intimated by a communication, dated September 10, 1986 in accordance with Section 13(2) of the Act if he wanted to get the sample analysed through Central Food Laboratory by exercising his statutory right. The accused was informed that the sample collected by Food Inspector Verma was found and declared adulterated/mis-branded during analysis. He was further informed that prosecution had been launched against him on September 9, 1986 in the Court of Judicial Magistrate, 1st Class, Hamirpur. A copy of report No. 386 of Public Analyst was also annexed for information and necessary action by the accused. It was stated that if he desired, he might make an application to the Court within a period of ten days from the receipt of the memorandum. Inspite of such communication received by the accused, he did not take any step whatsoever. 33. The question for my consideration is whether the accused in the light of the above facts can make grievance about not putting a question under Section 313 of the Code regarding sending of sample for analysis to the Central Food Laboratory under Section 13(2) of the Act and whether the trial got vitiated on that count. 34. The learned Counsel for the accused, in this connection, invited the attention of the Court to following decisions: 1. State of Madhya Pradesh v. Kasoor Chand Jain, (1992) 2 FAC 230 (MP); 2. Rameshwar Dayal v. State of IT. P., (1996) 2 FAC 197 (SC); 3. Pardeep Kumar v. State of Punjab, (1990) 1 FAC 168 (P & H); 4. State of Himachal Pradesh v. Ajay Kumar, (1998) 1 FAC 89 (HP); 5. Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; and 6. State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700. 35. It was submitted that there is a distinction between burden of proof and onus of proof. Burden of proof never shifts. When the burden is on the prosecution, it has to prove beyond reasonable doubt the case against the accused. Since that burden is not discharged, the prosecution must fail. 35. It was submitted that there is a distinction between burden of proof and onus of proof. Burden of proof never shifts. When the burden is on the prosecution, it has to prove beyond reasonable doubt the case against the accused. Since that burden is not discharged, the prosecution must fail. 36. Section 313 of the Code, no doubt, enjoins the Court to explain all circumstances appearing against the accused in the evidence of the prosecution so as to enable him to explain the circumstances. If any of such circumstances is not placed before the accused or there is failure on the part of the Court in getting his explanation, the trial will get vitiated and the conviction will be set aside. The submission of the learned Counsel for the accused is that as no question was put to the accused in his further statement under Section 313 of the Code relating to observance of Section 13(2) of the Act, the trial was vitiated and the conviction must be held to be illegal. 37. I am afraid, I cannot uphold the contention of the learned Counsel. In my considered opinion, two things are different : (i) Failure to put a question to the accused under Section 313 of the Code in respect of circumstances appearing against him and on which reliance has been placed by the prosecution; and (ii) Failure to put a question in respect of circumstance on which no reliance whatsoever has been placed by the prosecution against the accused. 38. In the instant case, the accused relies on Section 13(2) of the Act. A right has been conferred on him by the legislature and the said provision has been complied with. The accused was informed by a written communication dated September 10, 1986, that the sample taken from his shop was found to be adulterated. A copy of the report of Public Analyst was also sent and he was intimated that a prosecution had been launched against him in the Court of Judicial Magistrate, 1st Class, Hamirpur on September 9, 1986, and it was open to him to get the sample analysed by the Central Food Laboratory within the period prescribed under the Act. The accused, however, did not do anything. Obviously, therefore, the fault did not lie with the prosecution. The accused, however, did not do anything. Obviously, therefore, the fault did not lie with the prosecution. It was the right to be exercised by the accused if he wanted to do so and he was told well in time to exercise the said right. Since the accused did not think it fit to exercise that right, he must thank himself. By no stretch of imagination, it can be said that there was omission, failure or default on the part of the prosecution. 39. Further in the present case, inculpatory material, sought to be used against the accused was a report of Public Analyst, a copy of which was sent to the accused. A specific question being question No. 13 was put to the accused under Section 313 of the Code that as per prosecution evidence, on analysis, the sample collected by the Food Inspector was found to be misbranded and adulterated by Public Analyst vide report Ex. PE and what the accused had to say about it. The answer of the accused was that he had no knowledge about it. Thus, the circumstance, which was relied upon by the prosecution against the accused was not a report under sub-section (2) of Section 13 of the Act, but the report of Public Analyst Ex. PE, a copy of which was already sent to the accused. In my opinion, therefore, it cannot be said that there was non-observance of the provision of Section 313 of the Code and a question, which was i necessary to be put to the accused under the said section was not put and the conviction was, therefore, illegal. 40. In my judgment, Mr. Chauhan is right in submitting that when the circumstance on which reliance was placed by the prosecution was clearly, expressly and unambiguously placed before the accused under Section 313 of the Code the accused cannot contend that there was non-compliance with Section 313 of the Code and prosecution should fail on that ground. He also rightly submitted that it was for the accused to show as to how prejudice was caused to him in the facts and circumstances of the case. 41. In this connection, the counsel referred to the following decisions: (1) Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; (2) Food Inspector, Palghat Municipality v. Karingarappully Co-op. Milk Supply Society Ltd., 1986 Cri. LJ 719 (Kerala). 41. In this connection, the counsel referred to the following decisions: (1) Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420; (2) Food Inspector, Palghat Municipality v. Karingarappully Co-op. Milk Supply Society Ltd., 1986 Cri. LJ 719 (Kerala). (3) Tulsi Ram v. State of Madhya Pradesh, (1984) 4 SCC 487; (4) Prabhu v. State of Rajasthan, (1994) Supp (2) SCC 177; (5) Jai Dev v. State of Punjab, AIR 1963 SC 612; and (6) Babulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277. 42. In the above cases, it was observed that the Court will consider in the light of factual foundation whether prejudice had been caused to the accused when a grievance is made on his behalf that circumstances, sought to be relied upon by the prosecution were not put to him and he had not been afforded an opportunity to explain such circumstances. It has also been observed that whether or not prejudice had been caused to the accused is a question of fact which must be decided in the light of evidence in each case an no straith-jacket formula can be adopted or rule of universal application laid down. 43. As already observed hereinabove, in the instant case, apart from the fact that the accused has miserably failed to establish with preponderance of probabilities or even prima facie that prejudice had been caused to him, no question of prejudice arose inasmuch as the circumstance relied upon by the prosecution related to the report of Public Analyst Ex. PE. The said report was already sent to the accused. A specific and categorical question was put to him in a statement under Section 313 of the Code, which he replied that he had no knowledge. The accused, therefore, has no right to make grievance. 44. It was also contended on behalf of the accused that due to enmity, he was falsely implicated by the Food Inspector. A question was also put to PW1 Food Inspector Verma that it was the third sample which was taken by him and the accused was involved because of inimical terms with the complainant. PW1, however, categorically denied that he was in inimical terms with the accused and with a view to harass him, he had prosecuted the accused. A question was also put to PW1 Food Inspector Verma that it was the third sample which was taken by him and the accused was involved because of inimical terms with the complainant. PW1, however, categorically denied that he was in inimical terms with the accused and with a view to harass him, he had prosecuted the accused. He also stated that he did not remember whether earlier at any occasion, he had taken sample from the shop of the accused. But even if it is assumed for the sake of argument that in past, the complainant had an occasion to take sample from the shop of the accused, it cannot ipso facto be said that such an action was taken only with a view to harass the accused or the Food Inspector was in inimical terms with him. As a public officer, it was his power and also duty to take sample as and when he had reason to believe that a food article was kept for sale which did not conform to prescribed standards under the Act. A mere allegation or suggestion that such sample was taken with a view to harass a person is not enough, and on bald allegation or assertion of enmity, evidence of Food Inspector who is a Public Officer cannot be discarded or disbelieved. As observed by the Supreme Court in Ram Labhaya v. Municipal Corporation of Delhi and another, AIR 1974 SC 789; Babulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277; Prem Ballab and another v. State (Delhi Administration), AIR 1977 SC 56, and in catena of cases, an evidence of Food Inspector will also be considered and tested on the touchstone of reliability of evidence of other witnesses. If his evidence is otherwise found to be reliable and trustworthy, even in absence of further evidence, conviction can be recorded. 45. I had also an occasion to consider a similar argument in State of H.P. v. Rakesh Kumar, (Criminal Appeal No. 270 of 1997; decided on August 4/10, 2000). Considering leading decisions on the point, this Court observed that there is no rule of law that conviction cannot be based on the sole testimony of Food Inspector. A Food Inspector cannot be said to be an accomplice. He also cannot be described as an interested witness. Considering leading decisions on the point, this Court observed that there is no rule of law that conviction cannot be based on the sole testimony of Food Inspector. A Food Inspector cannot be said to be an accomplice. He also cannot be described as an interested witness. It would, therefore, be too much to say that unless corroborated in material particulars, the evidence of Food Inspector cannot be relied upon and no conviction can be recorded in absence of such material. I held that if the Court is fully satisfied on the evidence of Food Inspector, an accused can be convicted. If on the other hand, the Court is not wholly satisfied, it may seek corroboration from other evidence. This is, however, a rule of prudence or caution and not a rule of law. 46. In the instant case, apart from substantive evidence of PW 1 Food Inspector Verma, there is sworn testimony of PW 4 Jaishi Ram, Panch II, who had fully supported the case of prosecution. PW 3 Joginder Singh Panch I, though did not completely support the prosecution, even from his evidence, it was proved that the shop of the accused was visited by the Food Inspector; he had accompanied the Food Inspector; PW 4 Jaishi Ram was also present; samples were taken; documents were prepared in his presence; he signed those documents and even accused also signed them. Now, it is settled law that evidence of a hostile witness cannot be totally ignored and it is open to the Court to consider his evidence in the light of other evidence on record (Vide Sat Paul v. Delhi Administration, AIR 1976 SC 294). 47. In my view, the trial Court has rightly considered the evidence of PW 1 Food Inspector Verma and PW 4 Jaishi Ram, Panch II, and observed that PW 3 Joginder Singh, Panch I colluded with the accused and obliged him by not sticking to his earlier version and hence that part of his evidence could not be believed. The learned Sessions Judge was, not right in describing PW 3 Joginder Singh a? "an independent witness" and in proceeding to observe that since the evidence of PW 1 Food Inspector Verma and PW 4 Jaishi Ram, Panch II, was not in conformity with the evidence of independent witness PW 3, the accused deserved to be acquitted. 48. The learned Sessions Judge was, not right in describing PW 3 Joginder Singh a? "an independent witness" and in proceeding to observe that since the evidence of PW 1 Food Inspector Verma and PW 4 Jaishi Ram, Panch II, was not in conformity with the evidence of independent witness PW 3, the accused deserved to be acquitted. 48. As observed by Supreme Court in Prem Ballab, it is unfortunately not an infrequent occurrence to find that Panch witnesses turn hostile and go back upon what is stated in the Panchnama in utter disregard of truth. The Court stated : "It is unfortunately not an infrequent occurrence to find that puncha witnesses turn hostile and go back upon what is stated in the Panchnama in utter disregard of truth. This betrays lack of character and absence of civil sense which not only result in guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity This is a highly reprehensive phenomenon, which has to be cured in the larger interest of administration of justice". 49. In my considered opinion, the above observations of the Supreme Court aptly apply to the case on hand. PW 3 Joginder Singh Panch I, is a classic instance of a Panch commented upon by Bhagwati, J. (as His Lordship then was) in Prem Ballab I am also in agreement with the observations of the trial Court that as PW 3 wanted to oblige the accused, he turned round and instead of supporting the case of the prosecution, he supported the accused. PW 3, therefore, cannot be said to be an independent witness as observed by the learned Sessions Judge, but a witness who has subsequently changed his version against the prosecution to favour the accused. The learned trial Magistrate was, therefore, fully justified in preferring the evidence of PW 1 Food Inspector Verma and PW 4 Jaishi Ram, Panch II instead of PW 3 Joginder Singh, Panch I. 50. It was also urged that where two views are possible, one which is favourable to the accused must be accepted, particularly, when he is acquitted by the lower appellate Court. There cannot be two opinions about the above proposition of law and it is not necessary to cite any decision in support of such view. The question, however, is whether two views are possible in the Instant case. There cannot be two opinions about the above proposition of law and it is not necessary to cite any decision in support of such view. The question, however, is whether two views are possible in the Instant case. Looking to the evidence as a whole, in my judgment, one and only one view is possible, which had been taken by the trial Court arid when an article of food (Madhu Mirch) was found to be in the shop of the accused, kept in a rack near the counter for sale to customers and on disclosing his identity PW 1 Food Inspector Verma purchased it for analysis and was found to be adulterated, no reasonable and prudent man would come to the conclusion, which has been arrived at by the lower Appellate Court that the prosecution was unable to prove guilt of the accused but the only conclusion which could have been reached would be that since the article was found to be adulterated and misbranded, the accused had committed an offence with which he was charged. Apart from the fact that no legal, valid and germane reasons have been recorded by the lower appellate court for disbelieving and not relying upon the evidence of PW 1 Food Inspector Verma or PW 4 Jaishi Ram, Panch II, no reasons whatsoever have been assigned by the learned Judge for coming to such conclusion. Two views are, therefore, not possible in the case on hand and the contention of the learned Counsel for the accused cannot be upheld. 51. It was stated that the incident was of 1986. Thus, fourteen years had passed and it would not be proper to remand the case to the lower appellate Court for deciding it afresh in accordance with law. A long period of time is indeed a relevant consideration if the case is required to be remanded to the trial Court or to the lower appellate court. In my view, however, there is no necessity to remand the case. Since, I am taking the view that the reasons recorded and conclusions arrived at by the trial court were in consonance with law and hence could not have been disturbed by the lower appellate Court, the order passed by the Sessions Court deserves to be reversed and set aside and the judgment and order passed by the trial Court deserves to be restored. 52. 52. It was finally submitted that even if this Court is of the view that the reasons assigned by the lower Appellate Court are contrary to law and deserve interference, considering the fact that the said decision was given in January, 1997, and more than four years have elapsed, this Court even if does not affirm the decision and reasoning, may not impose substantive sentence on the accused. 53. The contention is not well founded and cannot be upheld. When it is proved beyond reasonable doubt that the accused had committed an offence under the Act and the trial Court was right in convicting him and the lower appellate Court was not justified in reversing a finding of guilt recorded by the learned Magistrate, the order passed by the trial Court must be restored and accused will have to undergo conviction and sentence recorded by the trial Court. It also cannot be gainsaid that the Act has been enacted in the larger interest of general public and when a person is held to be guilty beyond reasonable doubt and is ordered to be convicted and sentenced, it is not open to a Court of law not to convict him or not to imposed sentence as required by law. 54. For the foregoing reasons, the appeal deserves to be allowed and is, accordingly allowed. The order passed by the learned Sessions Judge in Criminal Appeal No. 8 of 1988 on January 6, 1997, is quashed and set aside and the order passed by the Judicial Magistrate, 1st Class, in case No. 20/111/86 on March 3, 1988, is restored. Appeal allowed.