JUDGMENT RAJ MAN I CHAUHAN, J.-The above mentioned criminal revisions under section 397 (1)/401 of the Code of Criminal Procedure (hereinafter referred to as 'Code) have been filed by the revisionist Himachal Marketing Company against three separate impugned orders dated 31.8.2010, passed by the learned Additional Chief Judicial Magistrate/ Special Economic Offence, Court No. 17, Barabanki (hereinafter referred to as 'Magistrate') on the applications filed by the revisionist for release of pouches of Gutkha seized by the opposite party No.2, the Chief Food Inspector, Barabanki whereby the learned Magistrate has rejected the applications filed by the revisionist. 2. In all the three above criminal revisions, since the date and place of recovery of pouches of Gutkha and witnesses are almost the same and a common question “ as to whether the impugned order passed by the learned Magistrate is illegal and the pouches of Gutkha which have been seized by the opposite party No.2 may be released in favour of the revisionist," is involved for consideration before this Court, therefore, all the three criminal revisions are being disposed of by a common order. 3. The relevant facts giving rise to all the three criminal revisions may be summarized as under:. The revisionist i.e. Himachal Marketing Company, 278/67, Aish Bagh Road, Lucknow was involved in purchase and sale of the pouches of Gutkha. The company on 7.8.2010 was transporting the pouches of Gutkha filled in separate bags loaded on three separate vehicles for the purpose of sale. One of the vehicles bearing No. U.P. 32 2-2012 was carrying 100 bags each containing 180 pouches of Gutkha. In this way, there were 18,000/- pouches of Gutkha on the vehicle. This vehicle was intercepted by Sri V.K. Pandey, the Chief Food Inspector, Food & Drug Administration Department, Barabanki along with other Food Inspectors near Collectorate Compound, at about 6.00 P.M. He, suspecting that the pouches were containing tobacco product which were injurious to health, thought it proper to seize the pouches and send the sample of seized pouches to public analyst for analysis to ascertain as to whether the pouches were containing adulterated substance. Sri Pandey, therefore, seized the 100 bags being transported on the said vehicle in view of the provision under the Prevention of Food Adulteration Act (hereinafter referred to as 'Act'). He took the sample of seized pouches observing the formalities provided under Act as well as Rules framed thereunder. Sri Pandey, therefore, seized the 100 bags being transported on the said vehicle in view of the provision under the Prevention of Food Adulteration Act (hereinafter referred to as 'Act'). He took the sample of seized pouches observing the formalities provided under Act as well as Rules framed thereunder. The seized bags were kept in the custody of Local Health Authority, Barabanki. 5. On the same day at the same place at about 6.15 P.M. Sri Amresh Kumar, Food Inspector who was member of the raiding team intercepted the Vehicle No. U.P. CZ8898 on which 40 bags each containing 180 pouches of Gutkha were being transported by the revisionist. He seized the pouches of Gutkha and took the sample of the pouches observing the requisite formalities as referred above to send the same to the Public Analyst for analysis. Similarly, Sri K.K. Tripathi, Food Inspector, Barabanki who was also member of the raiding team intercepted the Vehicle No. U.P. 40 T-0228 on the same day at the same place at about 7.00 P.M. on which 40 bags each containing 180 pouches of Gutkha were being transported by the revisionist. He seized the pouches of Gutkha and took the sample of the pouches observing the requisite formalities as referred above to send the same to the Public Analyst for analysis. The above seized pouches of Gutkha were also kept in the custody of the Local Health Authority, Barabanki. 6. The revisionist thereafter filed three separate application for releasing the seized pouches of Gutkha before the learned Magistrate. The applications were opposed by the Chief Food Inspector. The learned Magistrate rejected the applications, vide impugned orders dated 31.8.2010, mainly on the ground that the sample of seized pouches of Gutkha were sent to the public analyst and the reports of the public analyst were awaited, therefore, the applications were premature to release the seized pouches of Gutkha in favour of the revisionist. 7. Sri V.K Pandey, Chief Food Inspector, Food & Drug Administration Department, District Barabanki, Sri Amresh Kumar, Food Inspector, Food & Drug. Administration Department, District Barabanki and Sri K.K. Tripathi, Food Inspector, Food & Drug Administration Department, district Barabanki have filed their counter affidavit along with copy of the report of the public analyst. 8. 7. Sri V.K Pandey, Chief Food Inspector, Food & Drug Administration Department, District Barabanki, Sri Amresh Kumar, Food Inspector, Food & Drug. Administration Department, District Barabanki and Sri K.K. Tripathi, Food Inspector, Food & Drug Administration Department, district Barabanki have filed their counter affidavit along with copy of the report of the public analyst. 8. The submission of the learned Counsel for the revisionist is that the seized pouches of Gutkha are not food within the meaning of section 2 (v) of the Act. Therefore, the Chief Food Inspector was not empowered to seize the pouches of Gutkha being transported by the revisionist. In fact the seized pouches of Gutkha are tobacco product in view of the provisions under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The pouches of Gutkha under seizure which were being transported by the revisionist could not be seized on the suspicion that the same were adulterated. The learned Counsel further submits that the three applications filed by the revisionist for releasing the seized pouches of Gutkha were rejected by the learned Magistrate mainly on the ground that the seized pouches of Gutkha were sent to the Public Analyst to ascertain as to whether the same were adulterated. The reports of Public Analyst were awaited when the learned Magistrate had rejected the applications filed by the revisionist but now the reports of Public Analyst have been received in which the Public Analyst has specifically reported that there is no standard of Gutkha prescribed under the Act, 1954 and Rules, 1955 framed thereunder. However, it can be treated as proprietary food according to Rule 37-A (c) and Rule 44 m of the PFA Rules. Therefore, no tobacco can be added to these food. The Public Analyst has reported that the samples were misbranded. The learned Counsel for the revisionist submits that since the seized Gutkha cannot be treated as food under the Act, therefore, no standard for the same has been prescribed thereunder. The pouches of Gutkha is tobacco product under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. It is to be governed by the provision under that Act or Rules framed thereunder and not under the Act or Rules. The pouches of Gutkha is tobacco product under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. It is to be governed by the provision under that Act or Rules framed thereunder and not under the Act or Rules. The' learned Magistrate has rejected the applications of the revisionist mainly on the ground that the report of the Public Analyst had not been received but report of the Public Analyst has been received now wherein the seized pouches of Gutkha have not been reported as adulterated. Therefore, they cannot be seized under the Act; rather the revisionist who is involved in selling the pouches of Gutkha is entitled to the custody of those seized pouches of Gutkha. 9. The learned Counsel for the revisionist further submits that the Public Analyst has reported that the samples are misbranded but the pouches of Gutkha are recognized as tobacco product, hence it cannot be said to be misbranded. The seized pouches of Gutkha cannot be retained by the opposite parties on the ground that these are misbranded. Learned Counsel further submits that the samples of Pouches of Gutkha sent by the Chief Food Inspector were not found to be adulterated by the Public Analyst, therefore, revisionist is entitled to get the pouches of Gutkha released in view of the provision under section 11 (6) of the Act. The impugned orders passed by the learned Magistrate is, therefore, illegal and is liable to the quashed and the revisions deserve to be allowed. The learned Counsel in support of his submission has placed reliance on the cases Sunderbhai Ambalal Desai v. State of Gujarat, SLP (Crl.) No. 2745 of 2002 with C.M. Mudaliar v. State of Gujarat, SLP (Crl.) No. 2755 of 2002, Godawari Pan Masala Products J.P. Ltd and another v. Union of India and others, and Consumer Action Group v. Cadbury India Ltd. and another, decided by the Hon'ble Apex Court and Vasudev Kesarwani v.• State of U.P., (Cr.R. No. 319 of 1995)., decided on December 19, 1995 by this Court. 10. Sri Rajendra Kumar Dwivedi, the learned A.G.A. opposed the revisions and argued that although the Public Analyst after analysis of the samples sent by the Food Inspector have not reported that the samples were adulterated but he has reported that the same were misbranded. 10. Sri Rajendra Kumar Dwivedi, the learned A.G.A. opposed the revisions and argued that although the Public Analyst after analysis of the samples sent by the Food Inspector have not reported that the samples were adulterated but he has reported that the same were misbranded. The Public Analyst has found that the pouches of Gutkha were containing tobacco which is injurious for health. Therefore, the seized pouches of Gutkha will be treated as adulterated. Therefore, the same' cannot be released in favour of the revisionist. 11. I have given thoughtful consideration to the rival submissions of the learned Counsel for the revisionist and learned A.G.A. as well as gone through the case laws cited by the learned Counsel for the revisionist. 12. From a perusal of the impugned order, it appears that the learned Counsel for the revisionist had argued before the learned Magistrate that the seized pouches of Gutkha were not food within the meaning of section 2(v) of 'the Act but the learned Magistrate rejected his contention holding that the Hon'ble Apex Court in the case of Godawari Pan Masala Products I.P. Ltd. and another (supra) did not accept the argument that the Pan Masala could not be treated as food. The learned Magistrate observed that the samples of seized pouches of Gutkha were sent by the Chief Food Inspector to the Public Analyst for analysis. The reports of Public Analyst were awaited. Therefore, the applications were premature to release the seized pouches of Gutkha. But now the report of the Public Analyst are available. From a perusal of the Public Analyst's report, it appears that the Public analyst has not found the sample to be adulterated as no standard of Gutkha is prescribed under the Act; rather he has reported that the samples were misbranded. The opinion of Publie Analyst is being extracted herebelow:- Opinion:- There is' no standard of Gutkha in PFA 1954 & Rules, 1955. Such type of food article which has not been standardized under PF A is called proprietary food. According to Rule 37-A (c) and Rule 44 (J) of PFA Rules, 1955, tobacco shall not be used as ingredients in any food article. So, the sample is misbranded" 13. Such type of food article which has not been standardized under PF A is called proprietary food. According to Rule 37-A (c) and Rule 44 (J) of PFA Rules, 1955, tobacco shall not be used as ingredients in any food article. So, the sample is misbranded" 13. As per opinion of Public Analyst as mentioned above, it is clear that no standard of such type of food has been prescribed under the Act; rather as per opinion of the Public Analyst the sample can be treated as proprietary food wherein no tobacco can be used as ingredient of such food, therefore, the same is misbranded. Since no standard of Gutkha has been prescribed either under the Act or Rules framed thereunder, therefore, it cannot be said to be adulterated. 14. Section 11(6) of the Act lays down the provision where any article has been seized by the Food Inspector treating the same as food and the sample of seized 'article is sent to the Public Analyst for analysis. If the Public Analyst after analysis of the sample does not find the same to be adulterated, the same shall be released to the person from whose possession it was seized. The section 11 (6) of the Act reads as under:"11(6) [If it appears to the Magistrate that any such(a) article of food is not adulterated; or (b) adulterant which is purported to be an adulterant is not an adulterant, the person from whose possession the article of food or adulterant was taken shall be entitled to have it restored to him and it shall be in the discretion of the Magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the Magistrate may think proper." 15. In this case the samples of seized pouches of Gutkha were sent to the Public Analyst for analysis who after analysis did not report the same to be adulterated. Therefore, the revisionist is entitled to the custody of the seized Gutkha in view of the provision referred above. 16. In this case the samples of seized pouches of Gutkha were sent to the Public Analyst for analysis who after analysis did not report the same to be adulterated. Therefore, the revisionist is entitled to the custody of the seized Gutkha in view of the provision referred above. 16. As regards that the seized Gutkha contained ingredient of tobacco, the same is covered under the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, therefore, the seized pouches of Gutkha can be dealt with under the said Act and not under the Act. Admittedly, the seized pouches of Gutkha are perishable in nature and after lapse of certain time, they will loose their utility to be used. In the circumstances, keeping in view the nature of the seized pouches of Gutkha as well as the fact that they are not reported to be adulterated by the Public Analyst, the same can be released in favour of the revisionist. The impugned order passed by the learned Magistrate rejecting the applications of the revisionist is illegal and is liable to be quashed and the revisionist is entitled to possession of the seized pouches of Gutkha. Accordingly all above three revisions deserve to succeed. 17. All the above three criminal revisions are allowed and all the three impugned orders dated 31.8.2010, passed by the learned Magistrate are set aside. All the three applications filed by the revisionist for the release of seized pouches of Gutkha are allowed. Let the seized pouches of Gutkha be released in favour of the revisionist on his executing a personal bond of Rs. 50,000/- (fifty thousand) in each seizure to the satisfaction of learned Magistrate.