C. K. BUCH, J. ( 1 ) THIS Revision Application is preferred by the petitioner challenging two decisions, one holding the petitioner guilty for the offence punishable under Section 16 (1) (a) (i) r/w. Section 7 of the Prevention of Food Adulteration Act. 1954 (hereinafter referred to as the Act) dated 11th March. 1998 and another decision dated 13th october. 2000 given by the learned additional Sessions Judge, Ahmedabad city, dismissing the Criminal Appeal of the petitioner and confirming the order of conviction dated llth March. 1998 passed by the learned Metropolitan Magistrate. Court No. 6. Ahmedabad. in Criminal Case no. 94/1989. ( 2 ) MR. PARDIWALA learned counsel appearing on behalf of Mr. K. B. Anandjiwala for the petitioner has taken me through all the relevant facts including the method adopted by CFL in recording findings as to use of equipment in analysing the sample i. e. use of microscope, though there is no such provision in the relevant Rules, that may probably lead this Court to any other or different approach. The first legal submission made before this Court by mr. Pardiwala is that both the lower Courts have failed to consider the plea of the petitioner accused as far as Section 19 (2) of the Act is Concerned. Section 19 (2) of the Act reads as under:" (A) vendor shall not be deemed to have committed an offence pertaining to sell of any adulterated or misbranded article of food if he proves (1) in a case where a licence is prescribed for the sale thereof, from a duly licenced manufacturer, distributor or dealer, (2) in any other case from any manufacturer, distributor or dealer (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. " ( 3 ) IT is not a matter of dispute which has been observed in para: 19 of the judgment and order of the learned trial court that during the course of recording evidence one bill was produced by the petitioner-accused to show that he had bought the Turmeric Powder from one shree Laxmi Bhandar having kabutar brand Agmark Masala Manufacturer and the complainant Food Inspector had drawn the sample of turmeric powder from that bulk and that sample was sent to public analyst for the purpose of analysis. The production of this document was not objected as record to its admissibility and. therefore, the bill was accepted as a piece of evidence and the same was given exh. 50. This document exh. 50 was considered by the learned trial Court but it is observed that this bill does not reflect any warranty and in absence of specific warranty, the petitioner accused cannot escape from his individual liability of selling an adulterated article. The defence available to the petitioner-accused under section 19 (2) of the Act would not be available in such contingency. It is argued by Mr. Pardiwala that as far as the contention of the petitioner-accused with regard to Section 19 (2) of the Act is concerned the law is well settled. Section 14 of the Act with its proviso clinches the issue. Looking to, the text of the proviso to Section 14, a bill, cash memo or invoice in respect of the sale of any article of food given by manufacturer or distributor or dealer, in such article to the vendor thereof shall be deemed to be a warranty given by the said manufacturer, distributor or dealer under this Section and, therefore, a deeming effect has been given by this proviso and each and every bill should be accepted as a warranty given by the manufacturer distributor or dealer. When the bill has been duly proved in evidence and has been exhibited and marked exh. 50 without there being any objection raised by the prosecution, this defence of the petitioner-accused ought to have been accepted. It is true that there is no evidence on record that the turmeric powder purchased from the manufacturer was preserved in the same condition and sold as it was bought from the manufacturer or dealer. This point according to Mr. Pardiwala is also no longer res Integra and it has been answered by this Court (Coram : H. H. Mehta. J) by judgment dated 25th February. 2000. while dealing with the Criminal Appeal No. 683/ 91. It has been observed by this Court that to make defence of warranty as provided under Section 90 of the Act as a genuine defence, it becomes abundant duty of the food Inspector to take further steps immediately including step of raiding the premises of either manufacturer or dealer from whom the food article was purchased by the vendor. It has been observed by this Court that to make defence of warranty as provided under Section 90 of the Act as a genuine defence, it becomes abundant duty of the food Inspector to take further steps immediately including step of raiding the premises of either manufacturer or dealer from whom the food article was purchased by the vendor. Inaction on the part of the food Inspector in this regard is likely to prejudice the defence of the vendor. It is argued that when it is difficult to hold that, the petitioner-accused neither stored it properly nor sold it in the same condition as he purchased it, then in that eventuality, the accused should be given benefit of doubt. This Court in the case of R. S. PRAJAPATI V/s. STATE OF GUJARAT and ANR. REPORTED IN 1991 (1) GLR 82 , has observed that as per the provisions of Section 14 of the Act, even bill, cashmemo or invoice would be deemed to be a warranty. Where a bill, cash-memo or invoice is given at the time of sale, a separate warranty is unnecessary and the bill, cash-memo or invoice would be deemed to be a warranty. So even if there is no written warranty in the prescribed from, the production of credit bill is sufficient compliance of the law. which gives protection from prosecution to vendor who purchased the article from manufacturer, distributor or dealer under section 19 (2) of the Act. Similar observations are made in the case of amarchand V/s. STATE OF PUNJAB. REPORTED IN 1984 (1) FAC 1967. wherby it is held that the Court has power to implead the manufacturer/ dealer or distributor as an accused by exercising powers vested with the Court under section 20 (A) r/w. subsection (3) of Section 319 of the Code of Criminal Procedure. 1973 (2 of 1974 ). if during the trial the court is satisfied on evidence adduced before it that such manufacturer, distributor or dealer is also concerned with the offence. But in the present case, the sample has not been drawn or taken from sealed/packed container. The turmeric powder was in a separate tin and it was not in its original packing made either by manufacturer, wholesaler or distributor! so the ratio of this decision or similar decisions cited by Mr. Pardiwala would not help the petitioner-accused. But in the present case, the sample has not been drawn or taken from sealed/packed container. The turmeric powder was in a separate tin and it was not in its original packing made either by manufacturer, wholesaler or distributor! so the ratio of this decision or similar decisions cited by Mr. Pardiwala would not help the petitioner-accused. ( 4 ) I have gone through the other two judgments cited by Mr. Pardiwala (i) a judgment dated 17th July. 12 passed by this Court (Coram : S. M. Soni. J) in criminal Appeal No. 174/82 and (ii) a judgment reported in AIR 1771. 2346. in the case of Andra Pradesh Grain and Seed merchants Association V/s. Union of india. Mr. Pardiwala has referred para 18 of both these Judgments. I do not think it necessary to reproduce the relevant para 18 of both these Judgments. However, it will be beneficial to quote some part of the decision from Criminal Appeal No. 174/82. which is as under:"if the sample purchased from the dealer or from one who he had sold and sample purchased from the vendor, are found adulterated by the Public Analyst and if the vendor has taken the defence of warranty, in my opinion the defence of warranty is available to the vendor though the food article is sold in a loose condition. If sample of the food article purchased from the vendor is found adulterated, but. sample of article of Food purchased from the dealer is not found adulterated, then the vendor may not be entitled to the defence of warranty. It will be a circumstance that the article of food is not properly stored and/or is not sold in the same state. To make the defence of warranty a real one. so far as the vendors are concerned, in my opinion, the Food inspector should be alert and respond the defence and on the name of the dealer of that food article being disclosed by the vendor, the Food Inspector should immediately or simultaneously take action to purchase the article of food from that wholesaler or manufacturer. Inaction on the part of the Food Inspector to respond to such defence is likely to prejudice the defence of warranty if taken by the vendor. In the instant case, the Food Inspector has not taken the sample from the dealer. Inaction on the part of the Food Inspector to respond to such defence is likely to prejudice the defence of warranty if taken by the vendor. In the instant case, the Food Inspector has not taken the sample from the dealer. It became difficult to hold that the vendor neither stored it properly nor sold it in the same state as he purchased it. to establish the fact that the vendor stored the article properly and sold the same in the same state, his version is required to be accepted except disproved by the circumstances available on record. " ( 5 ) IN the case of Andra Pradesh grains and Seeds Merchants Association (supra), the Apex Court has discussed similar type of gum whereby it was it the submitted that the provision that the retailer, who opens container of a branded article of food, looses even the limited protection under. Section 19 (2) is without substance. Clause (2) of Section 19 of the Act neither provides nor implies that if the container of a branded article is opened, article of food ceases to be in the same state in which the vendor purchased it. But the important aspect of the case on hand is that the accused (selling article of food-turmeric powder ultimately found adulterated during analysis, he cannot be permitted to plead that he was ignorant of the nature, substance and quality of the food when there is nothing on record to show that the turmeric powder was drawn from the packed or sealed container. ( 6 ) ONE another argument advanced by Mr. Pardiwala is that in the present case there is a breach of mandatory provision of Rule 4 (3) of the Prevention of Food adulteration Rules (hereinafter referred to as the Rules ). It would be beneficial to quote the relevant Rule 4 (3) of the Rules, which reads as under :"a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the director. " ( 7 ) IT is held by this Court in the case of STATE OF GUJARAT V/s. RAMANBHAI DURLABHBHAI PATEL. REPORTED IN 1997 (2) GLH 457 that a strict/compliance of the provision of Rule 4 (3) of the Rules would be necessary. " ( 7 ) IT is held by this Court in the case of STATE OF GUJARAT V/s. RAMANBHAI DURLABHBHAI PATEL. REPORTED IN 1997 (2) GLH 457 that a strict/compliance of the provision of Rule 4 (3) of the Rules would be necessary. The court/ further held that : the prosecution could not prove that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover were sent separately by registered post to the director of the Central Food Laboratory at pune. It appears that in the office copy of the memorandum in the file of the Trial court it was mentioned that the memorandum together with the specimen impression of the seal in question and the cover was sent separately by registered post to the Director of the Central Food laboratory at Pune. No receipt of registration or any acknowledgment slip duly signed by the addressee received back to the sender was brought on record to show compliance with the mandatory provisions contained in Rule 4 (3) of the rules. " ( 8 ) MR. Pardiwala has pointed out that this very important aspect of the argument placed before the trial Court as well as the Appellate Court has not been dealt with by both these Courts and this contention has been negatived in a very slipshod manner, especially by the learned additional Sessions Judge. In para 17 the appellate Court has held that, "close scrutiny of the documentary evidence produced by the prosecution, no slip and memorandum are produced. " But this plea has not been accepted by the Appellate court on the ground that the same was not raised before the learned trial Court. There is some force in the argument of mr. Pardiwala that this contention raises a question of law and the fact of breach of mandatory rule can be pointed out before the first Appellate Court which is supposed to evaluate the finding recorded by the learned trial Court from all the angles. It is submitted that the prosecution has failed in proving the important aspect that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover were sent separately by Registered Post to the director of the Central Food Laboratory at pune. It is submitted that the prosecution has failed in proving the important aspect that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover were sent separately by Registered Post to the director of the Central Food Laboratory at pune. receipt of registration or any acknowledgment slip duty signed by the addressee received back to the sender was brought on record to show compliance with the mandatory Provisions contained in Rule 4 (3) of the Rules ( 9 ) MR. Pardiwala submitted the gist of his detailed submission in writing. The same is taken on record alongwith the bunch of authorities cited by Mr. Pardiwala. I would like to reproduce the contention (C) pg. 8 of the written submissions :"one of the most important submissions as far as this Revision is concerned is, as to whether the Central food Laboratory analyzed the same sample which was sent or which may have been sent from the trial Court. The Act has provided a statutory right upon the accused to get the sample further analyzed through CFL after the sample is being analyzed by the Public Analyst. This right is a substantive right of an accused and if defeated in any manner, would cause grave test was report the CFL report test was prescribed prejudice. This Honble high Court may kindly peruse the two reports, i. e. the Report of the Public analyst and the Report of the CFL. The report of the CFL is quite contrary to the public Analyst. As per Exh. 26 Public analyst starch was absent. As per Exh. 52 starch was found and only microscopic carried out which has been nowhere under the Rules. It is highly doubtful as to whether the CFL report which is produced on record is with regard to the present case. There is variation in the number of Slip? however, this has been ignored by both the lower Courts. The magistrate had forwarded two separate samples and both the samples were received by the CFL. The report which has been produced on record would show that lha Slip NO. 1-417. M. R. No. 55/89. CC no. 82/89. So Far as the present case is concerned, as per the report of the Public analyst, the Sr. No. is 11/i/417/58. The magistrate had forwarded two separate samples and both the samples were received by the CFL. The report which has been produced on record would show that lha Slip NO. 1-417. M. R. No. 55/89. CC no. 82/89. So Far as the present case is concerned, as per the report of the Public analyst, the Sr. No. is 11/i/417/58. The criminal Case Number is not 82/89 but as per the evidence and the judgment, the criminal Case No. is 94/89. In all probability it appears that the report which has been sought from CFL is with regard to some other case being Criminal case No. 82/1989 and not with regard to the Criminal Case No. 94/1989. If this is the position, then the sample which was drawn from the shop of the accused and which was examined by the Public Analyst has not been sent to CFL and some another sample of another case appears to have been sent. This has caused grave prejudice to the accused as far as the substantive right of getting the sample examined through CFL. " ( 10 ) I have carefully considered the original whereby exh. 3 - certificate of test/ analysis issued by Central Food Laboratory indicates that. "certified that the sample bearing no. LHA slip No. I 417, H. R. No. 55/89. C. C. No,82/89. Dist. No. M/m/6th/37/89, purporting to be a sample Turmeric powder received on 25. 9. 89 with memorandum No. M/l/6th/37 of 1989 dated 16. 9. 89 from m. M. Court No. 6. Ahmedabad (Gujarat) was in a condition fit for analysis and has been analysed and that the results of such analysis are stated below :- thereafter. the analytical data is mentioned and the said certificate further indicates that - the seals on sample container were intact. The seals on cover of court on sample container as well as on outer cover of sample parcel were also intact and tallied with the specimen impression of seal enclosed with the copy of memorandum forwarded separately. "the first reading of the slip received by the CFL if considered in light of exh. 19 i. e. Appendix A. Form-I C as per Rule 4 (1) of the Rules 3. it is logically inferable that the sample analyzed by the CFL was pertaining to Court Case No. 82/89 and the sample was registered at Sr. No. 55/89 in the muddamal register. 19 i. e. Appendix A. Form-I C as per Rule 4 (1) of the Rules 3. it is logically inferable that the sample analyzed by the CFL was pertaining to Court Case No. 82/89 and the sample was registered at Sr. No. 55/89 in the muddamal register. Figure-1/ 417 reflected in the analysis report of the CFL tallies with the Figure mentioned in exh. 39 referred to and proved by PW- bharatchandra Ramanlal Desai at exh. 37 (Public Analyst ). Though it is clear that on receipt of report of analysis from CFL, nothing mentioned by the Public Analyst in his report remains relevant or such report of the Public Analyst cannot be allowed or considered for any purpose as the subsequent report of CFL supersedes the first -report (report of the Public analyst ). However, with a view to do substantive justice and also with a view to prevent miscarriage of justice. I have cross-checked the number and nature of sample sent to CFL and also the sample examined by the Public Analyst at vadodara. Exh. 26 is the report of the public Analyst bearing No. 02/424 of 1788. The very person who had analyzed the sample i. e. Mr. B. R. Desai and the report given by him in Form-III (as per Rule 7 (3) 1 was examined by the prosecution. This report describes the sample as, "received on the 30th day of may, 1988 from Shri c. C. Jani. Food Inspector, for the area within the Units of Municipal Corporation of City of Ahmedabad a sample of Dareli hardar ( Turmeric Powder) bearing code no. and serial No. II/i/417/38 of the Local (Health) Authority. . . " Name of the vendor is also mentioned as chetankumar rameshchandra Shah. It is true that in the slip received by CFL figure it is not mentioned prior to referring to figure 1/ 417. Even there is no reference of figure 58 in the report of the Public Analyst. On perusal of Rojnama/proceedings drawn by the Metropolitan Magistrates Court no. 6, Ahmedabad, it indicates that initially the Criminal Case was registered as Case no. 82/89. It simultaneously indicates one number written in red ink with a sketch pen i. e. MR 55/89. On the second page of Rojnama also the number of Criminal case is mentioned a Case No. 82/89. 6, Ahmedabad, it indicates that initially the Criminal Case was registered as Case no. 82/89. It simultaneously indicates one number written in red ink with a sketch pen i. e. MR 55/89. On the second page of Rojnama also the number of Criminal case is mentioned a Case No. 82/89. However, the third page of the Rojnama, which starts from 9th January. 1990, indicates the Case No. 94/89. It seems that thereafter the Criminal Cast has proceeded as Case No. 94/89. The original complaint exh. 1 indicates both these numbers i. e. Criminal Case Nos. 82/87 and 94/89, but this very page i. e. exh. 1 refers mr No. 55/89 so it would be incorrect to infer that the sample analyzed by CFL may not be one of the parts of the sample analyzed by the Public Analyst and allegedly drawn from the petitioner- accused. Undisputedly, the petitioner- accused was present when the sample was drawn and in absence of specific cross- examination on the point, this Court can infer that all the three samples may have been given separate numbers, especially when there is no confusion as to the number of the code and other description of the sample sent for analysis to both these authorities, namely the Public analyst and CFL. When there are two different numbers indicated in the proceeding itself so far as Criminal Case is concerned, it would be incorrect to infer that the sample examined in respect of criminal Case No. 82/89 has been wrongly considered in another Criminal Case i. e. Criminal Case No. 94/89. technicality can defeat a technicality is a good principle but there is no scope to invoke this principle from the facts emerging on close scrutiny of each relevant document referred to hereinabove. I do not find any merit in this point. Initially the Court was of the view that unless it emerges clearly that the other case was totally a different case and in that case also the Food Inspector has prosecuted a vendor from whom sample of turmeric powder was drawn and was sent for analysis to the Public Analyst, the ratio of decision of the Full Bench of this court, reported in 1984 (2) GLR 1350 , therefore, would squarely apply and the court is not in agreement to the submission of Mr. Pardiwala that if we go by the ratio of the decision of the Full bench, the decision does not say that the court has to just shut its eyes even if there is a mistak apparent on the face of the record. Of course, there is some force in the arguments of Mr. Pardiwala that unless the Court is convinced about the existence of mistake apparent on the face of record, the report of Central Food laboratory (CFL) shall have to be accepted and it supersedes all the findings and observations, and the contents of the report of Public Analyst. The alleged variation pointed out by Mr. Pardiwala as to the slip number and the case number do not indicate a mistake under which it can be inferred by this Court that the laboratory has considered the report of some another case erroneously or the complainant has produced a document as a piece of evidence on the record of the court, which is apparently of some other case. It is true that as per the report of the Public Analyst what was found by way of microscopic examination is turmeric powder mixed with Besan, whereas in the report of the CFL what has been found is a foreign starch identified as wheat starch. The question posed by Mr. Pardiwala is as to how can there be such a variation of this magnitude. But the Court is of the view that ultimately the CFL on analysis found that the sample sent for analysis is adulterated. The finding recorded by the public Analyst initially becomes non and irrelevant, if the Court reaches to a conclusion that there is no error or a gross mistake in sending the sample for second analysis on the request made by the petitioner-accused in writing through CFL. It is categorically held by the Full Bench of this Court that the Court, "cannot compare two reports and call upon the prosecution to explain the variation as Jar as the extent of adulteration is concerned" and in view of the above discussion, it was not necessary for any of the Court below to call upon the prosecution to explain the alleged apparent error because as discussed earlier, there is no material error or mistake. ( 11 ) THE another issue raised by mr. ( 11 ) THE another issue raised by mr. Pardiwala is that the CFL found presence of foreign starch and it was identified as a wheat starch while analyzing the turmeric powder but no such microscopic test has been prescribed under the Rules and this test has not been approved even by the Apex Court. In support of his submission, Mr. Pardiwala has placed reliance on two decisions (i) 1981 SC 1233 in the case of jagdishchandra V/s. STATE OF M. P. AND (II) 1996 Cr. L. R. (GUJ. 354. The finding recorded by the Public Analyst of the CFL is ultimately by following some process and using a scientific instrument namely microscope. During the process of examination the scientist may have to adopt various processes to arrive at an exact conclusion. Which method, to record conclusion, should be adopted first may not be provided in the Rules and it is not necessary that each such minute details need incorporation in such Rules. The court is supposed to infer that the CFL must be a well equipped institution and till date none of the Courts has raised a valid doubt as to the efficiency and infrastructural adequacy of the CFL and if a food particle is traceable at an initial stage of examination when it is placed in a microscope and the expert eye is able to conclude that the foreign particle found is nothing but starch and that the wheat starch, it would not be proper or legal for this Court to say that the finding recorded by the 5 CFL should be ignored merely because use of microscope in analyzing the food particle is not specifically provided in the Rules. Unless it is brought on record that it is not possible to identify the wheat starch on microscopic examination only, it is always necessary to go into further detail examination of such particles. Further physical or chemical process only could lead to a specific conclusion and unless the same is established, it would not be legal to justify or ignore the finding. So I do not find any merit in this argument also. ( 12 ) THE finding recorded by this court (Coram: R. M. Doshit. J) while dealing with a Criminal Revision Application No. 110/94. So I do not find any merit in this argument also. ( 12 ) THE finding recorded by this court (Coram: R. M. Doshit. J) while dealing with a Criminal Revision Application No. 110/94. decided on 15th September, 2000, in connection with the validity of the sanction accorded by the authority also would not help the present petitioner. Looking to the evidence on record, it is difficult to reach to a conclusion that neither the sanction accorded by the authority is competent nor the same has been accorded mechanically or without application of mind. The sanction is found valid and legal. It is also relevant to note that so far as validity and legality of the sanction is concerned, there is no substantial challenge to the oral evidence led by the complainant in this regard. Even in the cross-examination of the original complainant, the finding recorded is not found convincing. So I do not find that the finding recorded holding the petitioner accused guilty is either bad or illegal or perverse. So this Revision application so far as confirmation of conviction is concerned, requires to be dismissed on merit. ( 13 ) SO far as the quantum of punishment imposed by the learned trial court is concerned, the Court finds that the substantive sentence imposed by the learned trial Court is harsh, especially when no prohibited colour or inedible particle or material was found mixed in the turmeric powder, The sample of turmeric powder was drawn on 28th May, 1988 and the complaint was filed in the month of August i. e. on 21st August, 1989. Of course, legally the material difference in the report of Public Analyst and the cfl cannot be looked into for holding the petitioner-accused guilty but in both the analysis, if it is found that no prohibited colour or inedible mixture is found in the food article analyzed by both these laboratories and when it was safe for the court to conclude that the material found adulterated can be said to have been adulterated technically otherwise it was not in accordance with the standard prescribed under the Act, then a liberal approach ought to have been taken. In such cases, substantial sentence is irrelevant and holding the accused guilty is sufficient because it carries much weight in the society and the field where he has to exist as a trader, manufacturer or dealer. In such cases, substantial sentence is irrelevant and holding the accused guilty is sufficient because it carries much weight in the society and the field where he has to exist as a trader, manufacturer or dealer. Today in the year 2004 i. e. after a lapse of about 15 to 16 years, if the petitioner-accused is asked to undergo substantive sentence of such a long period, would not only be impracticable, harsh and deterrent but also improper from the point of view of justification. So the substantive sentence can be reduced substantially by increasing the amount of fine. ( 14 ) CONSIDERING the quantum of punishment imposed by this Court and in the above cited case by the Apex Court, I feel that substantive sentence in the present case should be reduced to one week simple imprisonment, Keeping the amount of fine imposed as it is because rs. 5,000/- had much greater value in the year 1988, the day on which the accused had paid the amount of fine. The Court is not inclined to show any other leniency with regard to fine in the present case. ( 15 ) THE Revision Application, therefore, is partly allowed on the point of punishment and the substantive, sentence is hereby altered from three years S. I. to one week S. I. The petitioner-accused is directed to surrender, if he has not remained in jail for at least one week, before the learned trial Court within twelve weeks from the date of this order, failing which the concerned trial Court shall be at liberty to issue a warrant for arrest. ( 16 ) IN view of the above observations, the Revision Application is disposed of and the Rule is made absolute in above terms. .