Judgment ( 1. ) THIS order shall also govern the disposal of Criminal Revision No. 209/2000, Hukumchand v. State of madhya Pradesh. Both these revisions have arisen out of the common judgment of conviction and sentence dated 3. 6. 2000 passed in Criminal Appeal No. 25/97 by the 1st Additional Sessions Judge, Shivpuri by which the conviction of the petitioners has been maintained as awarded by the Chief Judicial Magistrate, Shivpuri in Criminal Case no. 1601/91 dated 13. 3. 97 by which the petitioners were convicted under Section 16 (l) (a) (l) of the Prevention of Food Adulteration Act, 1954 (hereinafter it shall be referred to as "the Act, 1954") but the sentence of one year rigorous imprisonment each has been reduced to six months rigorous imprisonment each and the fine as awarded Rs. 10,000 each has been reduced to Rs. 1,000 each. ( 2. ) IN short, the facts of the case are that the petitioner Ravindra Singh is having food licence for selling the bakery items at shivpuri styled as "mahadev Bakery". On 16. 3. 91, Food Inspector B. S. Tomar (PW1)visited the bakery shop where "long Ki Sev" was also stored for sale. The food inspector, after usual formalities, took the sample of the aforesaid item and divided it into three packets of 400 gms each. The notice under form 6 which is Ex. P 7 was given to the petitioner Ravindra Singh. The receipt of which is Ex. P 8. In the packets, lot number and code number were not mentioned, only the date of manufacture was mentioned. In the packets, labels were affixed as per Rule 15 of the Food Adulteration Rules, 1955 (hereinafter it shall be referred to as "the rules, 1955" ). The packets belonged to "prakash Namkeen, Indore". A notice was sent to the proprietor of "prakash Namkeen, indore" in Form No. 7 which is Ex. P 9. Panchnama Ex. P10 was prepared. The sample along with Form No. 7 was sent to the public analyst. The remaining parts of the samples were sent to the local health authority along with Form No. 7. On behalf of "prakash Namkeen, Indore" petitioner hukumchand has been designated as nominee by the manufacturer. The packet was sent to the public analyst on 16. 03. 91 along with sample of seal. The relevant documents are Ex. P11, Ex. P12 and Ex. P13. On behalf of "prakash Namkeen, Indore" petitioner hukumchand has been designated as nominee by the manufacturer. The packet was sent to the public analyst on 16. 03. 91 along with sample of seal. The relevant documents are Ex. P11, Ex. P12 and Ex. P13. The report of the public analyst which is Ex. P15 shows that the food article was found adulterated and mis-branded. ( 3. ) AFTER completion of the investigation, charge-sheet was filed. The trial court framed the charge under Section 16 (1) (a) (1)of the Act, 1954 against the petitioners for selling adulterated and misbranded "sev namkeen". It is submitted by the counsel for the petitioners that the trial court as well as the appellate court has not appreciated the evidence adduced by the prosecution properly and misconstrued the definition of adulteration and misbranded as defined under Section 2 of the Act, 1954 and Rule 32 (e) of the Rules, 1955. It is submitted by the counsel for the petitioners that neither any specific standard for the contents of namkeen Sev has been prescribed in the Act nor in the Rules, therefore, the report of the public analyst Ex. P15 cannot be relied on. It is also submitted that in the report of the public analyst, the contents which are mixed were shown to be Kesari Dal but as per the notification issued by the Public Health and family Welfare Department, Bhopal dated 30. 3. 2000, Kesari Dal was prohibited for consumption and this notification had come into force on 6. 4. 2000 while the incident took place in the year 1991, at that time, prohibition of Kesari Dal was not notified by the state Government, therefore, if on the basis of Kesari Dal, the article was found to be adulterated by the public analyst, the report cannot be accepted on this count also. Similarly, regarding misbrand, the essential ingredients were not proved by the prosecution. ( 4. ) ON the other hand, counsel for the respondent State submits that the trial court has rightly convicted the petitioners but he conceded that the notification came into force with effect from 6. 4. 2000. ( 5. ) IN these revisions, the main point is whether the food article which was purchased by the Food inspector from the petitioner Ravindra Singh and which was manufactured by petitioner Hukumchand was adulterated and misbranded or not? ( 6. 4. 2000. ( 5. ) IN these revisions, the main point is whether the food article which was purchased by the Food inspector from the petitioner Ravindra Singh and which was manufactured by petitioner Hukumchand was adulterated and misbranded or not? ( 6. ) FOOD Inspector B. S. Tomar (PW1), in his statement, deposed that he was posted as Sanitary Inspector and proved the documents from Ex. P1 (C) to P 4 (C) regarding sanitary Inspectors certificate, orders regarding appointment and certificate with regard to training. He was posted as Sanitary Inspector in the Gwalior Division. The copy of the order is Ex. P 5 (C ). He visited the shop of petitioner Ravindra Singh on 16. 3. 91 who was having licence for selling the food articles. On inspection, he suspected adulteration in the "namkeen Sev" therefore gave notice of Form No. 6 and purchased three packets of 400 gms each from the petitioner Ravindra Singh. The copy of the notice is Ex. P 7. The receipt is Ex. P8. He affixed the labels on the packets. A copy of the label is Ex. P8. The packet was sealed. The vendor disclosed that the food article belongs to "prakash Namkeen, Indore" and it was purchased through warranty and bill. Then notice was sent to the "prakash namkeen, Indore" along with Form No. 7. The postal receipt of which is Ex. P9. One part of the sample along with Form No. 7 was sent to the Public analyst, Bhopal through registered Parcel. The remaining two parts were sent to the local health authority on 16. 3. 91. The acknowledgment is ex. P12. The report of the public analyst was received on 1. 7. 91. As per the report of the public analyst, the food article was found adulterated and misbranded. The report is ex. P15. After receiving the report, a letter was sent to the "prakash Namkeen, Indore" on 17. 7. 91 which is Ex. P16 and the postal receipt of which is Ex. P17 but no information was received from the "prakash namkeen, Indore". Then he obtained the necessary permission from the Controller, food and Drugs Administration, Bhopal and enquired at Indore from the partner ramesh Chand Gupta. He informed about the nominee of the manufacturing company which is Ex. P20 (C ). P16 and the postal receipt of which is Ex. P17 but no information was received from the "prakash namkeen, Indore". Then he obtained the necessary permission from the Controller, food and Drugs Administration, Bhopal and enquired at Indore from the partner ramesh Chand Gupta. He informed about the nominee of the manufacturing company which is Ex. P20 (C ). In para 10, it is stated by the witness that the petitioner Ravindra singh purchased the food article from "prakash Namkeen, Indore" with warranty and bill and he admits that on the same condition it was sold by the vendor. A notice under Section 13 (2) was also sent to the petitioner but he has not filed the acknowledgment but he admits that there was no standard prescribed for Sev Namkeen under the Act or the Rules but he stated that the standard was prescribed on individual item. ( 7. ) ABHAY Kumar Phalke (PW 2) proved the notice under Section 13 (2) of the Act, 1954 to petitioners which is Ex. P27, P28 and P29. ( 8. ) IN this case, three points are important for consideration. The first is that whether the food article Namkeen Sev is adulterated? Secondly, whether it is mis-branded? And thirdly whether the petitioners are guilty for breach of provisions of relevant Act and Rules of the Prevention of food Adulteration Act, 1954. ( 9. ) THE report of the public analyst is Ex. P15. As per the report, the sample is adulterated vide Section 2 (ia) (a) of the Act and misbranded under Section 2 (ix) (k) of the Act and Rule 32 (e ). It is mentioned that on test kesari Dal powder was found present in the sample. On the basis of this, the report indicated that the sample was adulterated. The courts below found the sample adulterated on the basis of Rule 44a of the Rules, 1955. Rule 44a lays down that no person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale: (a) Kesari gram (Lathyrus Sativus)and its products. (b) Kesari Dal (Lathyrus Sativus) and its products, (c) Kesari dal flour (Lathyrus Sativus)and its products, (d) a mixture of Kesari gram (Lathyrus Sativus) and Bengal-gram (Cicer arietinum) or any other gram, (e) a mixture of Kesari dal (Lathyrus sativus) and Bengal-gram dal (Cicer arietinum) or any other dal, (f) a mixture of Kesari dal (Lathyrus sativus) flour and Bengal-gram (Cicer arietinum) flour or any other flour. From reading of Rule 44a, it is clear that prohibition about Kesari Dal was made with effect from such date as the State Government concerned may by official gazette specify in this behalf. ( 10. ) THE Public Health and Family Welfare Department Government of Madhya pradesh, Bhopal, issued a notification dated 30. 3. 2000 which is as follows: "no. F10-62-98-Med.-2-XVII.-In exercise of the powers conferred by rule 44a of the Prevention of Food adulteration Rules, 1955, the state Government hereby specify the 6th April, 2000 as the date on which the provisions of said rule in respect of Kesari Dal shall apply. It means that this notification was issued in exercise of the powers conferred by Rule 44a to the State and Kesari Dal was prohibited with effect from 6. 4. 2000 and onwards. In this case, the sample was taken on 16. 3. 91. At that time, the notification issued by the State government of M. P. under Rule 44a of the Rules, 1955 was not applicable. Dinesh Kumar v. State of M. P. Therefore, there was no ban on Kesari Dal on 16. 3. 91. ( 11. ) APART from the above notification, it is submitted by the learned counsel for the petitioners that no standard is prescribed for Namkeen Sev in the Act, 1954 as well as in Appendix-B of the Rules. This position has also been admitted by the Food Inspector B. S. Tomar (PW1) in para 10 of his statement in which he clearly admitted that there is no standard prescribed regarding namkeen Sev under the Act or the Rules. This position has frankly been admitted by the learned counsel for the State during the course of arguments. ( 12. ) IN support of the above contention, counsel for the petitioners relied on a decision of this court in Kanwarlal s/o jagannath Mahajan v. State of M. P. through Collector Mandsaur. This position has frankly been admitted by the learned counsel for the State during the course of arguments. ( 12. ) IN support of the above contention, counsel for the petitioners relied on a decision of this court in Kanwarlal s/o jagannath Mahajan v. State of M. P. through Collector Mandsaur. In this case also, the petitioner was convicted for selling the adulterated Namkeen Sev and this court held that Rules and Schedule of the act have not specified the standards for the contents of Namkeen Sev, therefore, the petitioner cannot be held guilty for selling the adulterated food article. In this citation in para 5, it is laid down that having considered the submissions advanced by the learned counsel for the parties and also considering the legal position, this court is of the opinion that there is much force in the arguments advanced by the learned counsel for the applicant that Namkeen Sev which has been prepared from Besan (Gram flour) oil, salt and other spices, the standard of gram-flour considered to hold the applicant guilty for selling the adulterated food article but when there is no specific standard for the contents of Namkeen Sev prescribed under the Rules and its schedule, the applicant cannot be held guilty for selling the adulterated food articles. He also relied on Prakash Chand v. State of M. P. The similar view was expressed by the Apex court in M. V. Krishna Nambissan v. State of Kerala. ( 13. ) THEREFORE, in view of above discussion and the definition laid down under 2 (ia) (1)of the Act, 1954 that an article of food shall be deemed to be adulterated if the quality of purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health. ( 14. ) AS no standard was prescribed for namkeen Sev and looking to the notification issued regarding the prohibition of kesari Dal with effect from 6. 4. 2000, it cannot be said that the date on which the sample was taken, Kesari Dal was prohibited, therefore, Rule 44a will not be applicable and in absence of any specified standard regarding namkeen Sev, it cannot be said that the sample which was analyzed by public analyst is adulterated. ( 15. ) AS per the report of the public analyst Ex. ( 15. ) AS per the report of the public analyst Ex. P15, it is mentioned that the sample was misbranded under Section 2 (ix) (k) and rule 32 (e ). As per definition given under section 2 (ix) (k) misbranded means "an article of food shall be deemed to be mis-branded if it is not labelled in accordance with the requirements of this Act or rules made thereunder. ( 16. ) RULE 32 (e) of the Rules, 1955 lays down that every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label a distinctive batch number or lot number or code number, either in numerical or alphabets or in combination, the numerical or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words "batch No. " or Batch or "lot No. " or "lot" or any distinguishing prefix. ( 17. ) THE alleged sample which was taken from the petitioner Ravindra Singh is said to be manufactured by "prakash Namkeen, indore" and the petitioner Hukumchand is the nominee of the firm. In this regard the statement of B. S. Tomar (PW1), para 10, is relevant. He stated that Namkeen Sev was purchased by the petitioner Ravindra Singh from "prakash Namkeen, Indore" through bill and warranty and it was sold on the same condition as it was purchased by the petitioner Ravindra Singh. In para 17 of the statement regarding lot number or batch number, it is deposed by the witness that he has made seizure memo Ex. P10. No batch or lot number is mentioned. He also admits that the notice of Form No. 6 was not given to the petitioner No. 2 Hukumchand who is the nominee of the Prakash namkeen, Indore [ex. P20c]. ( 18. ) FROM the above testimony, it is clear that the original bill or warranty has not been produced or proved by the prosecution in the trial court. ( 19. ) UNDER Section 14 of the Act, 1954, it is laid down that no manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. ( 19. ) UNDER Section 14 of the Act, 1954, it is laid down that no manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. It is also written that provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section. ( 20. ) DURING the course of arguments, counsel for the petitioners submits that Rule 32 (e) of the Rules 1955 is declared ultra vires, therefore, as per the report of the public analyst Ex. P15, the food article cannot be termed as misbranded. ( 21. ) NOW, it is the settled position that as rule 32 (e) of the Rules 1955 has been declared to be ultra vires being beyond rule making powers under Section 23 of the Act 1954. Its violation cannot be said to be an offence. Finding of the Public Analyst that the food article was misbranded cannot be allowed to stand. Hiraram v. State of madhya Pradesh. ( 22. ) THE above view fortified by the Apex court in its decision rendered in Dwarka nath and another v. The Municipal Corporation of Delhi. ( 23. ) APART from the above fact, the sample which was sent for analysis was not injurious to health as stated by the public analyst in report Ex. P15. ( 24. ) THEREFORE, to sum up the above discussion, Namkeen Sev which was sent for its analysis to the public analyst is not proved as adulterated because at the relevant time Rule 44a was not applicable in the State of M. P. Secondly, due to declaration of Rule 32 (e)as ultra vires and in absence of the report that the Food Article was unfit for its consumption, it cannot be said that the said food article is misbranded in view of the definition given under Section 2 (ix) (k) of the Act. ( 25. ) THEREFORE, the findings recorded by the courts below cannot be sustained. ( 25. ) THEREFORE, the findings recorded by the courts below cannot be sustained. Hence, the conviction and sentence as recorded by the trial court against the petitioners under Section 16 (1) (a) (1) of Prevention of Food adulteration Act, 1954 is hereby set aside. If the amount of fine has been realized, then it be refunded to the petitioners. Bail bonds of the petitioners shall stand discharged. Revision is allowed accordingly. A copy of this order be also put in Criminal revision No. 209/00, Hukumchand v. State of Madhya Pradesh. Revision allowed accordingly.