JUDGMENT - KHARCHE S.T., J.:---Heard Shri Mandape, learned Additional Public Prosecutor for the State and Shri Saboo, learned Counsel for the respondent. 2. This appeal against acquittal is directed against the order dated 25-2-2002 passed by the learned Judicial Magistrate, First Class, Kelapur in Regular Criminal Complaint Case No. 65/2000, whereby the respondents-accused have been acquitted of the offences punishable under section 7(i) read with section 2(ia)(a) punishable under section 16(i)(a)(ii), section 7(i) read with 2(ia)(m) punishable under section 16(1)(a)(i) of Prevention of Food Adulteration Act and Rules (for short P.F.A. Act and Rules). 3. Brief facts are as under:--- The respondent No. 1 is the proprietor of M/s. Jai Bhavani Kirana Stores, Patanbori, and respondent No. 2 is the supplier of said groundnut oil and respondent No. 3 is the manufacturer of said groundnut oil. The complainant Food Inspector had visited the grocery shop of accused No. 1 on 3-11-1998 at 12.30 hours. He collected the sample of food articles i.e. groundnut oil and according to him he had followed and complied with all the necessary formalities, which are required to be followed under the P.F.A. Act and Rules. Thereafter sample of groundnut oil was sent to the Public Analyst, Pune for analysis under intimation to Local Health Authority, Yavatmal as well as the accused. The report of Pubic Analyst indicates that the sample of groundnut oil so obtained was not conforming to the standards under the P.F.A. Act and Rules. The complainant Food Inspector obtained consent of the Joint Commissioner of Food and Drugs Administration for launching the prosecution as is required under section 20 of the P.F.A. Act and Rules. Thereafter private regular complaint case was instituted in the Court of Judicial Magistrate, First Class, Kelapur, on the allegations that the accused persons have committed the offences, as stated above. 4. The learned Judicial Magistrate, First Class framed charge, which was explained to all the accused. All the accused pleaded not guilty to the charge and therefore, the trial proceeded with. The complainant Food Inspector Harsinhdas Ramprashadji Bajaj (P.W. 1) examined himself and also one witness Harendra Dabbawar (P.W. 2), who acted as panch witness, for the purpose of preparing seizure panchanama. The accused did not examine any defence witness. All the accused pleaded not guilty to the charge and therefore, the trial proceeded with. The complainant Food Inspector Harsinhdas Ramprashadji Bajaj (P.W. 1) examined himself and also one witness Harendra Dabbawar (P.W. 2), who acted as panch witness, for the purpose of preparing seizure panchanama. The accused did not examine any defence witness. The learned Judicial Magistrate, First Class has considered the evidence of prosecution witnesses and after hearing the arguments of the learned Counsel of both the sides, had come to the conclusion that there was non-compliance of P.F.A. Act and Rules while obtaining the sample and that prejudice has been caused to the accused as they have been deprived of exercise of right under section 13(2) of the P.F.A. Act. Consistent with these findings, he acquitted all the respondents-accused. 5. The learned A.P.P. for State contended that the Food Inspector had categorically stated that he had obtained sample of groundnut oil from the shop of accused No. 1 in presence of the panch witness Harendra Dabbawar and the said groundnut oil was sent to the public analyst, Pune. He contended that the report of Public Analyst, Pune clearly show that the sample of groundnut oil does not conform to the prescribed standards laid down under the provisions of P.F.A. Act and Rules and the learned trial Court has committed an error in rejecting the evidence adduced by the complainant Food Inspector. He contended that the lower Court has committed an error in recording the finding that there was breach of Rule 14 of the Act. He contended that Rule 7(3) of P.F.A. Rules is not mandatory and non-compliance of the same would not affect the case of the prosecution. He, therefore, contended that the impugned order passed by the learned Judicial Magistrate, First Class is not sustainable in law. 6. The learned Counsel for the respondent-accused relied on the decision of this Court in Criminal Appeal No. 200/2002, decided on 27-11-2002 and contended that since there was no strict compliance of Rule 14 of P.F.A. Rules, the learned Judicial Magistrate, First Class was perfectly justified in recording the finding of acquittal and the same order is sustainable in law. 6. The learned Counsel for the respondent-accused relied on the decision of this Court in Criminal Appeal No. 200/2002, decided on 27-11-2002 and contended that since there was no strict compliance of Rule 14 of P.F.A. Rules, the learned Judicial Magistrate, First Class was perfectly justified in recording the finding of acquittal and the same order is sustainable in law. The learned Counsel for respondents further contended that the accused persons were deprived of their right to send the sample to C.F.L. as per section 13(2) of P.F.A. Act and this has caused serious prejudice to the accused and therefore, the impugned order of acquittal is just, legal and correct and no interference into the same is warranted. 7. I have given thoughful consideration to the contentions canvassed by the learned Counsel for both the sides. It would reveal that the complainant Food Inspector had clearly stated that he had taken the samples in a weighing measure (container) which was lying in the shop of the accused and he did not clean it before obtaining the sample in that container. Similarly, panch witness Narendra Dabbawar (P.W. 2) admits in his cross-examination like this. "I cannot tell by which procedure Bajaj sealed the sample. Bajaj divided oil in three parts. The said oil was divided in three parts by the instrument of measure in the shop. The said instrument of measure was 500 ml. The funnel available in the shop was used in pouring the oil in the bottle. 8. The material brought on record in the cross-examination of both the witnesses would clearly reveal that the sample of groundnut oil was not obtained as per the prescribed procedure laid down by the P.F.A. Act and Rules. It will be useful to quote Rule 14, which reads as under: "Rule 14---"Manner of sending sample for analysis.—Samples of food 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 sealed". 9. 9. A bare reading of the aforesaid Rule, it would reveal that before obtaining sample of any food article like groundnut oil etc., the Food Inspector has not only to clean the container, but the container also should be dried in the manner as contemplated by this Rule in the present case. In view of the admission by the Food Inspector and the panch witness in cross-examination, it would clearly reveal that the Food Inspector did not comply with the provisions of Rule 14, before obtaining samples and that this is a serious infirmity in the case of prosecution showing non-compliance of Rule 14 of P.F.A. Rules. It is obvious that if this Rule 14 is not followed, then the report of Public Analyst would lose its significance. 10. While dealing with the similar situation, this Court (Hon'ble Justice R.K. Batta) relying on the earlier decision of this Court in case of (State of Maharashtra v. Abbas Ismail Sheikh)1, 1999(1) B.Cr. 176, took the view that if there is no compliance of Rule 14 of P.F.A. Rules then the benefit of doubt would go to the accused. 11. In State of Maharashtra v. Abbas Ismail Sheikh (cited supra) it was held that where cleaning of bottles in which samples were collected was stated to have been done by Khalasi, the non-examination of Khalasi by the prosecution adversely affected the prosecution case and as such, the trial Court had rightly given benefit of doubt to the accused. 12. However, in (Gangadhar Yeshwant Ramekar v. Mukeshbhai Shah and others)2, E.F.R. 1999(2) 570, Gujarat High Court had also taken the same view. In the present case also the containers in which the sample of groundnut oil were admittedly taken from the shop of the accused No. 1 at the spur of moment and those container were not cleaned and it appears that the Food Inspector was not aware of the procedure followed by the P.F.A. Act and Rules for obtaining the samples. Thus, this glaring infirmity brought on record cannot be ignored. Therefore, the contention of the learned Counsel for the accused appear to be well-founded that for non-compliance of Rule 14, accused persons have been rightly acquitted by the learned trial Court. 13. The learned Counsel for the respondents-accused also pointed out that this is a case wherein there is no compliance of section 13(2) of P.F.A. Act. Therefore, the contention of the learned Counsel for the accused appear to be well-founded that for non-compliance of Rule 14, accused persons have been rightly acquitted by the learned trial Court. 13. The learned Counsel for the respondents-accused also pointed out that this is a case wherein there is no compliance of section 13(2) of P.F.A. Act. The trial Court on considering the provisions of P.F.A. Act, has observed that serious prejudice has been caused to the accused because of they were not supplied with the copy of Public Analyst's report. Though the Food Inspector has stated that the said copy was despatched by post, he could not produce the proof for the same. He did not produce either certificates of post or any postal receipt to show that the report was despatched nor he had produced any postal acknowledgment to show that the copy of report of Public Analyst was received by the accused. 14. I may usefully refer Rule 13(2) of P.F.A. Act, which reads as under:-- "Rule 13. Report of Public Analyst: (1) .............. (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them 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 article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory." 15. The learned Counsel for the accused relied on the decision of a Division Bench of Hon'ble Supreme Court in the case of (Rameshwar Dayal v. State of U.P.)3, reported in 1996(2) F.A.C. 197, wherein ratio has been laid down that serious prejudice has been caused to the appellant because of non-supply of the Public Analyst's report as is required under section 13(2) of the Act and the accused was deprived of exercising of his right to have the sample to be sent to C.F.L. The Hon'ble Supreme Court in the circumstances, set aside the conviction and allowed the appeal and has observed that "The matter arises under the Prevention of Food Adulteration Act. The sample taken was found to be adulterated. On the record it appears that the report of the Public Analyst is not supplied to the accused as required under section 13(2) of the Act. Consequently, he could not get his own sample examined by the Central Laboratory. It is a very valuable right given to him. Rules also provide that such a report should be supplied to the accused within a certain period." 16. In the present case also it has been borne out from the evidence that the report of Public Analyst was not sent to the accused persons as is required under Rule 13(2) of P.F.A. Act and, therefore, serious prejudice has been caused to them because they could not exercise their right by sending the sample to be examined by C.F.L. The ratio laid down by the Apex Court in the above mentioned case would be squarely applicable to the facts and circumstances of the present case. 17. The another infirmity that has been brought on record in this case is that the report of public analyst was not despatched within 40 days, as is required under sub-rule (3) of Rule 7 of P.F.A. Rules. 17. The another infirmity that has been brought on record in this case is that the report of public analyst was not despatched within 40 days, as is required under sub-rule (3) of Rule 7 of P.F.A. Rules. I may usefully to quote sub-rule (3) of Rule 7 of P.F.A. Rules, which contemplates as under:--- ("Sub-rule (3) of Rule 7.—"The public analyst shall, within a period of (forty days) from the date of receipt of any sample for analysis, (send by registered post or hand) to the Local (Health) authority a report of the result of such analysis in Form III: Provided that where any such sample does not conform to the provisions of the Act or these Rules, the Public Analyst shall (send by registered post or hand) four copies of such report to the said authority: Provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under section 12 of the Act) (Note.---In case of sample received under the proviso of Rule 7(1) or Rule 9-A, the period of forty days shall be counted from the date of receipt of the second part of the sample). 18. In the present case, the evidence of Food Inspector would indicate that the sample of groundnut oil was sent to public analyst on 3-11-1998, which was received by public analyst on 9-11-1998 and thereafter it appears that the report of Public Analyst was despatched to L.H.A. on 31-12-1998 and there was delay of about 10 days in despatching the report to public analyst and this has violated sub-rule (3) of the Rule 7 of P.F.A. Rules. The learned Additional Public Prosecutor contended that Rule 7(3) of P.F.A. Rules, is not mandatory and it is only in the nature of directory. This Court does not feel it necessary to enter into that controversy in view of the fact that there was non-compliance of various provisions of the P.F.A. Act and the Rules. In the facts and circumstances of the case, I am of the considered view that the trial Court was perfectly justified in acquitting the respondents-accused by giving them benefit of doubt. No interference into the said finding is warranted and consequently appeal is liable to be dismissed. The appeal is dismissed in limine. Appeal dismissed. -----