JUDGMENT :- This appeal is filed by the State against the judgment of acquittal, dated 16.6.1997 passed by the VII Metropolitan Magistrate, Hyderabad in C.C.No.06 of 1994. 2. The first respondent was tried for the offences punishable under Sections 16(l)(a)(i), 7(i) and 2(ia)(m) of Prevention of Food Adulteration Act (for short 'the Act') and was acquitted by the learned Magistrate. Originally the Food Inspector filed complaint against the respondents 1 and 2. As the second respondent was absconding, case against him was separated and the first respondent was tried for the offences alleged. 3. According to the prosecution on 28.5.1993 at about 10.45 a.m., PW.1 (U. Narsaialz) the Food Inspector along with his attender PW 4 (M. Suryanarayana) inspected the shop of the first respondent and found him transacting business. Having found groundnut oil in an open stainless steel container which is meant for human consumption and kept for sale, PW-l called one person by name Pochaiah (PW3) an independent witness to be present at the time of his inspection and served Form No.VI notice on the first respondent indicating his intention to lift the sample of groundnut oil kept for sale. He purchased 450 grams of groundnut oil and obtained receipt from the first respondent. He divided the commodity into three equal parts, placed it in three clean dry empty bottles. It is the version of PWI that he conducted sampling and sealing process by strictly observing all the formalities prescribed under the Act and Rules. One part of the sample was sent to the Public Analyst along with memorandum in Form No.VII in a sealed package. Another copy of Form No.VII with the specimen impression of the Food Inspector was separately sent in a sealed cover. The remaining two parts of the sample were deposited with the local health authority for safe custody. 4. After analyzing the sample, the Public Analyst gave a report stating that the sample does not conform to 'Butyro Refractometer Reading, Iodine Value and Belliers Test', contained castor oil and is therefore adulterated. 5. At the time of lifting of sample itself, A-I produced before PW-I the Food Inspector, a Xerox copy of the bill issued by A-2 under which A-I purchased the groundnut oil. However, PW1 did not lift any sample from the business premises of n the 2nd respondent who is a manufacturer/wholesaler on the ground that the stock was not available. At the time of lifting of sample itself, A-I produced before PW-I the Food Inspector, a Xerox copy of the bill issued by A-2 under which A-I purchased the groundnut oil. However, PW1 did not lift any sample from the business premises of n the 2nd respondent who is a manufacturer/wholesaler on the ground that the stock was not available. But no tangible proof is placed by the Food Inspector in proof h of the fact that he actually visited the business premises of 2nd respondent and tried to secure the sample of groundnut oil e corresponding to the bill furnished to him e by the first respondent. Subsequently PW -1 submitted a report in regard to the matter in question to the Director, IPM and after P obtaining written consent to launch prosecution against A-1 and A-2, filed c complaint before the learned Magistrate. 6. After filing of the complaint, notice under Section 13(2) along with the report of the Public Analyst was sent to respondents 1 and 2. The case against 2nd respondent was split up as he was absconding and a separate C.C.No.28 of 1996 was assigned to the case of 2nd respondent on the ground f that non-bailable warrants were pending since long time. 7. Before the learned Magistrate in C order to prove its case, the prosecution examined PWs.1 to 4 and marked Exs. P-1 to P28. No oral evidence was let in on behalf of the first respondent but Exs.D-1 to D7 were marked on his behalf. 8. The learned Magistrate upon considering the oral and documentary evidence on record, acquitted the first respondent mainly on two grounds, namely, (1) PW -1 the Food Inspector failed to observe the mandatory provisions contained in Rules 14 and 16 of the Prevention of Food Adulteration Rules (for short 'the Rules'). (2) That despite the fact the first respondent handed over a Xerox copy of the bill under which he purchased groundnut oil from second respondent, PWI did not lift any sample of corresponding groundnut oil from the business premises of second respondent under the guise that stock was not available with second respondent by that time. 9. (2) That despite the fact the first respondent handed over a Xerox copy of the bill under which he purchased groundnut oil from second respondent, PWI did not lift any sample of corresponding groundnut oil from the business premises of second respondent under the guise that stock was not available with second respondent by that time. 9. At the hearing of the appeal, the learned Public Prosecutor appearing for the State would submit that even though there are some minor discrepancies in the evidence of prosecution witnesses, the evidence is consistent with regard to sampling and sealing process conducted by the Food Inspector and the report of the Public Analyst revealed that the groundnut oil was adulterated, since it contained castor oil, the learned Magistrate ought not to have acquitted the first respondent. 10. On the other hand, the learned Counsel appearing for the first respondent would submit that the mother of the 1st respondent being the owner of the shop, the 1st respondent who was a student transacting business cannot be held liable for punishment, there is deliberate violation of the mandatory provisions of Rules 14 and 16 by PW-l the Food Inspector and the evidence of PWs.1 to 4 is highly discrepant on material particulars and therefore, the learned Magistrate is perfectly justified in acquitting the first respondent. 11. Let us now examine the rival contentions in the light of the evidence forthcoming and having regard to the facts and circumstances of the case. 12. Before arriving at a conclusion in regard to the contention that the second respondent not being the owner of the shop cannot be convicted for the offence alleged, I it would be relevant to take note of the f principles laid down in the following decisions: (i) The Public Prosecutor v. Kupandra Chetty, AIR (35) 1948 Mad. 478. In the said case, 'A' while transacting business in the shop of his brother 'B', sold adulterated ghee to the Food Inspector and in the prosecution of 'A', it was contended on his behalf that since the shop belongs to his brother, he cannot be convicted for the offence under Section. 5(1)(d) of Madras Food Adulteration Act. The Madras High Court held, that 'A' remaining in the shop in the absence of his brother 'B' and acting as deputy can be considered as a person who offered ghee for sale. 5(1)(d) of Madras Food Adulteration Act. The Madras High Court held, that 'A' remaining in the shop in the absence of his brother 'B' and acting as deputy can be considered as a person who offered ghee for sale. It is not suggested that the respondent was there only as a causal visitor or that he did not go there for the purpose of looking after the business. Under these circumstances, it has to be held that the respondent was the person who offered for sale the quantity of ghee, which did not conform to the definition of the word ghee in the Act. (ii) Ramrai Mahadev Nayak and another v. State of Maharashtra, AIR 1981 SC 1776 (1), in which case the accused a permanent resident of Mysore came on short visit to Bombay and was unfortunately asked to look after the hotel belonging to the father only for one day on which date the Food Inspector inspected the hotel and took sample of Gilebi which was ultimately found to be adulterated. Having regard to the given situation, the Apex Court held that there can be no doubt that taking of the samples amounted to sale under the Prevention of Food Adulteration Act and as the appellant was in-charge of the hotel, he would be liable for the offence for which he has been punished. However, the Apex Court considering that the presence of the appellant in the hotel was due to the circumstances beyond his control, instead of sending him to jail, gave him the benefit of the Probation of Offenders Act. 13. The contention urged on behalf of the first respondent is that on the date of offence, he was a student as disclosed from Exs.D-5 and D6 (Transfer Certificate and conduct and bona fide Certificate respectively. The licence of the shop was in the name of his mother and as his mother fell sick on the said date, he was attending to the business, and therefore, he cannot be prosecuted for the offence. It is true that Exs.D-1 to D3 (APGST Certificate, Form No.II and MCH licence respectively) stand in the name of Chandrakala the mother of the first respondent and obviously she is the licensee of the shop. 14. It is true that Exs.D-1 to D3 (APGST Certificate, Form No.II and MCH licence respectively) stand in the name of Chandrakala the mother of the first respondent and obviously she is the licensee of the shop. 14. But, the contention urged by the learned Counsel cannot be accepted because taking of sample by the Food Inspector amounts to sale under the provisions of Food Adulteration Act and the 1st respondent cannot escape liability on the ground that the licence was in the name of his mother and he was transacting the business only as she was sick on the relevant date. Therefore, the mere fact that the licence is in the name of the mother of first respondent does not absolve him from criminal liability under the Act, if he is otherwise liable for commission of offence. 15. The next aspect requires attention is whether there are any violations of the Act and Rules committed by the Food Inspector, which entitle the second respondent for acquittal? 16. Rule 14 of the Prevention of Food Adulteration Rules lays down that the samples of food for the purpose of analysis shall be taken in clean dry bottles and shall be closed and sealed sufficiently tight to prevent leakage, evaporation or entrance of moisture, while Rule 16 prescribes an elaborate procedure for the manner of packing and sealing of samples to ensure the purity of samples at the time of analysis. 17. PW-1 the Food Inspector stated in his deposition that the container from which he lifted the sample was having a wide mouth and it was a measure of 200 ml, that he took the oil with the said measure twice. According to him, his attender M. Suryanarayana (PW4) sealed the bottles as per his direction. However, PW3 an independent witness stated in his evidence that in the shop of A-I the tin from which the sample was taken was placed in a big tray along with other oil tins. PW-l inspected 3 or 4 varieties of oils with the same measure and lifted the sample of groundnut oil with the same measure without cleaning it and the said 200 ml measure was lying in the tray with other measures. He also stated that PWI obtained the sample twice and poured into three bottles. PWI did not clean the measure and the bottles. According to this witness PW-l himself sealed the bottles. He also stated that PWI obtained the sample twice and poured into three bottles. PWI did not clean the measure and the bottles. According to this witness PW-l himself sealed the bottles. 18. From the evidence of PW-3 it is obvious that there is every possibility of san1ple lifted by PW -1 mixing with the other oils dropped from the remaining measures. Further according to PW-3, PW-l himself sealed the sample bottles; whereas PW-l stated that his attender PW -4 sealed the bottles as per his directions. Therefore, as rightly contended by the learned Counsel appearing for the first respondent there arises a doubt as to the fact whether the inspection by PW -1 was done in the presence of PWs.3 and 4. PW4 also stated in his deposition that PW -1 lifted the sample with the same measure twice and he himself sealed the bottles after pouring groundnut oil into the sample bottles. 19. Thus, it is clear from the evidence forthcoming that the sample was not taken once but twice which is not contemplated under the rules and the evidence also indicates that PW-I took the samples without cleaning the intervening vessel. 20. Rules 14 and 16 are mandatory; PW-l the Food Inspector while conducting the sampling and sealing process has to strictly observe the mandatory provisions contained in Rules 14 and 16 and any violation wi11 result in benefit of doubt to the accused. 21. Further it is the duty of the prosecution to prove by adducing positive evidence that the mandatory provisions of Rules 14 and 16 have been complied with by the prosecuting Food Inspector and the accused is under no obligation to prove, that there is any violation of such mandatory provisions. The prosecution is not supposed to have recourse to the weakness of the defence. Once the provision is held to be mandatory, non-compliance of the provisions would adversely affect the prosecution case. It would create grave doubt as to the contents of the package, which were received by the Public Analyst. Further the implements used by the Food Inspector for taking samples and the bottles in which the samples were kept must be pure and clean, otherwise the quality of the sample item with be contaminated by the use of uncleaned implements. It would create grave doubt as to the contents of the package, which were received by the Public Analyst. Further the implements used by the Food Inspector for taking samples and the bottles in which the samples were kept must be pure and clean, otherwise the quality of the sample item with be contaminated by the use of uncleaned implements. If the sample was taken with the impure or contaminated, implements the report of the Public Analyst cannot be pressed into service to convict the accused person for the offence under the Act. 22. Moreover, in the instant case, admittedly no sample was lifted from the shop of second respondent even though the name of A.2 was disclosed on the very same day by A.1 at the time of inspection. Exs.P11 and P12 (Form VI and declaration respectively) appear to have been created by the Food Inspector to patch up the latches in his inspection and the fact that, in fact, PW.I inspected the shop of second respondent by which time the groundnut oil was not available for inspection is not proved by the prosecution by means of adducing any reliable evidence. Further PW-4 admitted in his evidence that on that day they did not go to the shop of A-2. He only stated that they served notice on Virupaksha Oil Depot (second respondent) and came back. From the evidence of PW -4 any amount of doubt is created as to whether, really PW.1 the Food Inspector served Form No.VI notice personally on the second respondent. 23. As indicated above, PWs.1, 3 and 4 gave different versions with regard to the sampling and sealing process. PW -1 did not strictly follow Rules 14 and 16. The evidence of PW -4 is that he is no other than the attender of PW-l. The version of PWs.l and 4 is unworthy of credence. 24. For the foregoing reasons, the judgment of acquittal passed by the VII Metropolitan Magistrate, Hyderabad in C.C. No.06 of 1994 is confirmed. The appeal preferred by the State is dismissed.