Judgment: 1. The former criminal revision petition has been filed by the 2nd accused in S.T. No.718/2002 on the file of the Judicial First Class Magistrate Court, Neyyattinkara and the latter revision petition has been filed by the 1st accused therein. Though separate appeals were preferred against the judgment in S.T. No.718/02 they were dismissed. These revision petitions arise from the common judgment in Crl. Appeal Nos.255/2006 and 256/2006 filed respectively by the first and second accused. Therefore, they were clubbed together, heard simultaneously and disposed of by this order. The revision petitioners are referred to hereafter in this order according to their status before the trial court, and in such manner to suit the situation. 2. The first accused is a salesman in ‘Girikrishna Restaurant’ Neyyattinkara runs by the second accused. On 27.06.2002 at about 1 p.m. the Food Inspector, Neyyattinkara Circle who was in charge of Neyyattinkara Municipality, visited ‘Girikrishna Restaurant’ and expressed her intention to take sample of chicken fry and purchased 1.5 kgms of chicken fry that was kept for sale. Ext. P6 mahazar was then prepared. It was divided into 3 equal parts and one part of the sample was sent to the Public Analyst for analysis. The remaining 2 samples were sent to the Local Health Authority along with Ext.P10 intimation. The sample of chicken fry on analysis, was reported to be adulterated as per Exhibit P12 analyst report. The sample had ‘traces of carmoicine and presence of sunset yellow synthetic colour. Thereafter, sanction was obtained as per Exhibit P13 from the Local Health Authority to prosecute the revision petitioners. The complaint was then, filed before the Judicial First Class Magistrate Court, Neyyattinkara alleging commission of offences punishable under Sections 2(1a) (a) (j), 7(i) and 16(1A) (i) of the P.F.A. Act read with Rule 29 of the P.F.A. Rules. On getting notice under Section 13(2) of the Act the petitioners appeared before the court and applied for sending sample kept by the local health authority and caused it to be sent for analysis to the Central Food Laboratory. After such analysis Exhibit P16 report was submitted confirming the presence of sunset yellow colour FCF in the sample. It was reported to be adulterated, in the said circumstances, owing to the contravention of Rule 29 of the Prevention of Food Adulteration Rules (PFA Rules). 3. After such analysis Exhibit P16 report was submitted confirming the presence of sunset yellow colour FCF in the sample. It was reported to be adulterated, in the said circumstances, owing to the contravention of Rule 29 of the Prevention of Food Adulteration Rules (PFA Rules). 3. On the side of the prosecution PW1 and PW2 were examined and Exhibits P1 to P24 were marked. There was no oral or documentary evidence on the defence side, going by the judgment of the Trial Court. However, a perusal of the appellate judgment would reveal that in fact, Exhibit D1 was marked on the side of the defence. The Food Inspector was examined as PW1. After evaluation of the evidence on record the learned Magistrate found the accused Nos.1 and 2/revision petitioners herein, guilty for offences under Sections 2(1a) (a) (j), and 7(i) of the P.F.A. Act, 1954 read with Rule 29 of P.F.A. Rules 1955 and they were convicted thereunder. Consequently, they were sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.2,000/- (Rupees Two thousand only) each under Section 16(1A) (i) of P.F.A. Act and in default to undergo simple imprisonment for a period of two months. Against the said judgment they preferred appeals unsuccessfully and their conviction and also the sentence were confirmed by the appellate court. The above revision petitions have been filed in the said circumstances against the common judgment. 4. I have heard the learned senior counsel Sri. S. Gopakumaran Nair, appearing for the revision petitioners and also the learned Public Prosecutor Smt. Seena Ramachandran. Manifold contentions have been raised by the revision petitioners to challenge the conviction and sentence passed against them. It is firstly, contended that the shop from which the food article viz.; chicken fry was purchased was not properly identified by PW1 and hence it was not proved by the prosecution. However, the core contention of the petitioners is that there was fatal failure to comply with the mandatory provisions under Rule 14 of the Prevention of Food Adulteration Rules. The learned senior counsel contended that on that sole score the revision petitioners are entitled to be acquitted. However, the core contention of the petitioners is that there was fatal failure to comply with the mandatory provisions under Rule 14 of the Prevention of Food Adulteration Rules. The learned senior counsel contended that on that sole score the revision petitioners are entitled to be acquitted. In the absence of evidence as to adherence with the provisions under Rule 14 of the PFA rules presumption under Section 114 of the Indian Evidence Act should not have been drawn in favour of the prosecution to hold compliance with the mandatory provision under Rule 14 of the PFA Rules, it is contended. To buttress the contention the learned Senior counsel relied on the decisions of this Court in Koyakutty v. Food Inspector reported in 2000 (3) KLT 693 and in Babu v. Food Inspector reported in 2003 (2) KLT 90. Per contra the learned Public Prosecutor contended that there is evidence, oral and documentary to prove the guilt of the revision petitioners. There is compliance with the mandates under Rule 14 of the PFA Rules and no case was brought out by the revision petitioners for invoking the revisional jurisdiction of this court, it is further submitted. 5. As notice earlier, Exhibit P12 is the report of the Public Analyst and Exhibit P16 is the report from the Central Food Laboratory. Going by Exhibit P12 the sample contained Carmoicine traces besides the presence of synthetic colour Sunset Yellow FCF to make it adulterated. Exhibit P12 was superseded by the report of the Central Food Laboratory in Exhibit P16. Going by Exhibit P16 the sample contained Synthetic colour Sunset Yellow FCF and, as such, there is contravention of Rule 29 of the PFA Rules so as to make the food article adulterated. Exhibit P6 mahazar is also to be looked into in the light of the rival contentions raised in this regard. Rule 29 of the P.F.A. Rules 1959 prescribes the articles of food in which permitted colours can be added. Rule 30 prescribes the permissible limits of synthetic food colours in various articles categorised under Rule 29. Going by the provisions under Rule 28 of the P.F.A. Rules the colours carmoisine and sunset yellow FCF are permitted synthetic colours can be used only in those items of food articles specified under rule 29 that too, only within the permissible limits under Rule 30. Going by the provisions under Rule 28 of the P.F.A. Rules the colours carmoisine and sunset yellow FCF are permitted synthetic colours can be used only in those items of food articles specified under rule 29 that too, only within the permissible limits under Rule 30. It is nobody’s case that chicken fry is an item of food articles mentioned under Rule 29. Therefore the question is whether the presence of carmoisine or sunset yellow FCF in chicken fry would amount to contravention of Rule 29 and consequently, make the sample adulterated. The defence contended that going by Rule 29 of the P.F.A. rules the synthetic colours can be added to tomato sauce and tomato sauce was, infact, added to chicken fry at the time of its preparation. The defence was that the presence of sunset yellow FCF occurred only on account of the addition of tomato sauce. I will leave this issue here to be dealt with a little later, that too, if it is found to be necessary at that stage. 6. I will now, revert to the questions, whether compliance with the provisions under Rule 14 of the PFA Rules, is mandatory and whether failure to adhere to the mandates thereunder is fatal enough to fetch acquittal to the accused. When can compliance with the provisions under Rule 14 of the PFA Rules presumed by virtue of Section 114 of the Indian Evidence Act, 1872 is the other question that assumes relevance in the context of the contentions. For a proper and profitable consideration of the aforesaid questions it is worthy to refer to Rule 14 of the PFA Rules and it read thus:- “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.” Rule 14 of the P.F.A. Rules deals with the manner of sending samples for analysis. As regards the first question I need not have to endeavour much to answer the same in the light of the decisions of this Court in Koyakutty v. Food Inspector reported in (2000 (3) KLT 693) and in Babu v. Food Inspector reported in (2003 (2) KLT 90). As regards the first question I need not have to endeavour much to answer the same in the light of the decisions of this Court in Koyakutty v. Food Inspector reported in (2000 (3) KLT 693) and in Babu v. Food Inspector reported in (2003 (2) KLT 90). In view of the factual position obtained in this case the point to be answered is whether by virtue of Rule 14 the intermediary vessel whereon samples were taken had to be dry and clean to claim compliance with the provisions thereunder. In Koyakutty v. Food Inspector reported in (2000 (3) KLT 693) this court found that absence of any evidence to show that the intermediary vessels used for mixing the sample or for sampling were clean and dry would result in violation of the mandatory provisions under Rule 14 of the PFA Rules. It has been further held that the provisions under Rule 14 are mandatory and its violation would vitiate the conviction. 7. It is to be noted that the question of presumption in the official act under Section 114 of the Indian Evidence Act with reference to Rule 14 of the P.F.A. Rules, was not discussed or decided in Koyakutty’s case (supra). However, both the aforesaid issues were considered in depth by the Division Bench in Babu’s case (supra). After considering the various authorities including the decision in Koyakutty’s case (supra) Rule 14 of the PFA Rules and Section 114 of the Indian Evidence Act, in Babu’s case it was held inter alia, by the Division Bench as hereunder: 1. Provisions of R.14 of the Prevention of Food Adulteration Rules are mandatory and if it is proved that mandates of the above rule are not complied with, the accused is entitled to acquittal. 2. Not only the container in which sample of food articles are taken, intermediary vessels, spoon etc. where food articles are handled for mixing, stirring or otherwise for the purpose of sampling also shall be clean and dry. 3. If the Food Inspector proves that sampling is done accordance to the rule, in the absence of cross examination or contrary evidence, a presumption can be taken under S.114 of the Evidence Act that the official act of sampling was done in accordance with rules and containers which samples were taken as well as intermediary vessels used for sampling the food articles were dry and clean. 4. 4. If contrary evidence is adduced, finally it is for the court to find out from the totality of evidence as a finding of fact, whether R.14 is violated or not. (emphasis added) Thus, it is obvious that the Division Bench virtually held that Koyakutty’s case, on the first point at issue, was correctly decided and then, went on to look into the scope of Section 114 in respect of cases under Prevention of Food Adulteration Act and formulated points No.3 and 4. It is thus obvious that the questions whether compliance with the provisions under Rule 14 of the PFA Rules is mandatory and whether its violation would vitiate conviction are to be answered in the affirmative. 8. The question as to whether a presumption under Section 114 of the Evidence Act can be drawn in cases of Food Adulteration cases was considered by this court in the decision in Mathukutty v. State of Kerala reported in (AIR 1988 Ker 60). It was held that presumption under Section 114 could be drawn in cases of Prevention of Food Adulteration Act depending upon the evidence. A presumption under Rule 114 is a presumption of fact and it enables the court to presume that an official act has been regularly performed. No doubt, that presumption is rebuttable. But, the question is whether there is initial onus on the prosecution to prove that sampling was done according to the rule and in what manner it can be discharged. Even while observing that the Prevention of Food Adulteration Act was enacted to curb and remedy the widespread evil of food adulteration and to ensure the availability of wholesome food to the people the Division Bench virtually laid emphasis on the initial onus on the prosecution to prove that sampling was done in accordance with law. Para 4 of Babu’s case is so far as it is relevant reads thus:- In 1990 (1) KLT 36 (supra) it was held that when an official act is shown to have been performed, there is the presumption that it was regularly performed until it is rebutted, that normally clean and dry vessel alone would be used by the Food Inspector. The above decision was overruled by the Supreme Court in S. Harikumar v. Food Inspector (1995 SCC (Cri.) 933) on another point in that case. The above decision was overruled by the Supreme Court in S. Harikumar v. Food Inspector (1995 SCC (Cri.) 933) on another point in that case. Supreme Court found that nowhere the Food Inspector has stated that the curd was stirred and churned before the samples were taken. Here in this case the Food Inspector gave evidence and deposed that it was properly stirred. There was no cross examination regarding that point. True that the Food Inspector is not supposed to speak of all the various steps taken by him to show that he had acted in conformity with the Act and the Rules. However, the Food Inspector has to give evidence, at least in the general way, to indicate compliance with the mandatory provisions. In such cases his evidence could be corroborated by the mahazar and other evidence supported by the contents of the analysis report. As found earlier, provisions under Rule 14 of the PFA Rules are mandatory. Not only the container in which the sample of food articles are taken but, intermediary vessels, spoon etc.; where food articles are handled for mixing, stirring or otherwise for the purpose of sampling also shall be clean and dry. In view of the said position there can be no doubt the Food Inspector while giving evidence has to depose, at least in a general way, regarding the compliance with the mandatory provisions under Rule 14 of the PFA Rules. Such evidence has to be let in with respect to the container and intermediary vessels. In other words, the Food Inspector has to depose, atleast, that the samples were collected in accordance with the rules. In that context the following pointers from the Division Bench decision in Babu’s case (supra) assume relevance:- In paragraph 5:- “But when it is deposed that sample was taken according to rule, if there is no cross examination and no defence plea is set out during trial or 313 statement that sampling was not done in hygienic condition and intermediary vessels were not dry and clean, court can presume that it was done in hygienic condition and mandates Rule 14 is complied with.” In paragraph 6:- “here in this case, the Food Inspector deposed that taking of sampling and sealing was done in accordance with law and there is no cross examination on this point. In such circumstances, in the absence of any contrary evidence at all, it can be presumed that intermediary vessels used for mixing and sampling were clean and dry and there was compliance with the Rules.” In paragraph 14:- “But when prosecution has proved that sampling was done in accordance with law, it is for the accused to point out regarding the alleged defects in the case and the court has to decide the matter on the totality of evidence.” (emphasis added) 9. The corollary of the aforesaid pointers and the points formulated by the Division Bench, as extracted hereinbefore, would make it clear that the Food Inspector concerned has to depose, atleast in the general way, that the sampling was done accordance to the Rules lest the presumption under Section 114 of the Evidence Act cannot be raised. The pointers which are extracted above in paragraph 5, 6 from the judgment in Babu’s case (cited supra) would undoubtedly laid emphasis on the necessity to prove compliance with mandatory procedures by the Food Inspector and also throw light on the burden to be discharged by the prosecution order to make the court to draw the presumption under Section 114 of the Evidence Act. It also makes it clear that when the prosecution discharged that onus in the absence of cross-examination or contra-evidence the court would be justified in drawing the presumption in favour of the prosecution. In view of the said discussions the next question to be considered in this case is whether the prosecution has let in any evidence through the Food Inspector to discharge that burden viz., to show that sampling and sealing were done in accordance with the rules and that the containers in which samples were taken as also intermediary vessels used for sampling the food articles were dry and clean. True that there is evidence which is supported by Exhibit P6 and also the oral evidence of PW1 which would show that sealing was done in accordance with the rules inasmuch as the samples were sealed in a dry and clean polythene cover. A scrutiny of the evidence of PW1 would reveal that she had not deposed in the required manner to discharge the burden to show compliance with the rules as regards the intermediary vessels, spoon etc. where food articles were handled for mixing, stirring or otherwise for the purpose of sampling. A scrutiny of the evidence of PW1 would reveal that she had not deposed in the required manner to discharge the burden to show compliance with the rules as regards the intermediary vessels, spoon etc. where food articles were handled for mixing, stirring or otherwise for the purpose of sampling. The Food Inspector who was examined as PW1 had not deposed to the effect that the intermediary vessels were also clean and dry. The Food Inspector had not even deposed to the effect that the sampling was done in accordance with rules. Had the Food Inspector deposed at least to the effect that the sampling was done in accordance with rules definitely onus would have shifted to the defence and in the absence of a cross examination to show that the intermediary vessels were not clean and dry or in the absence of any contra-evidence to that effect, definitely, the presumption under Section 114 of the Evidence Act could have been drawn in favour of the prosecution. In the circumstances, it can only be hold that there was absolute absence of any evidence with respect to the compliance with the provisions under Rule 14 of the P.F.A. Rules, with respect to the intermediary vessels. The first point formulated by the Division Bench in Babu’s case (cited supra) is that provisions of Rule 14 of the P.F.A. Rules are mandatory and if it is proved that mandates of the Rule are not complied with the accused is certainly entitled to be acquitted. It is to be noted that in the case on hand, both the courts below failed to consider the aforesaid position of law. Where the evidence on record has been misconstrued or where the absence of a crucial piece of evidence which would decide the compliance or otherwise of a vital mandatory provision is not considered in proper legal perspective it would result in failure of justice and in such cases, certainly, this court can interfere with a concurrent finding of fact. In the decision in Daungarshi Madanlal Zunzunwala v. M/s. Deviprasad Omprakash Bajoria reported in 1985 Crl.L.J. 1943 the Bombay High Court held that a concurrent finding of fact based on illegal appreciation of evidence cannot be called a question of fact but it is a question of law for the purpose of Section 397 Cr.P.C. and therefore, the High Court can interfere under its revisional jurisdiction. I am of the view that the fact that courts below had recorded findings concurrently would not by itself invite imprimatur of infallibility and such concurrent findings could not be maintained if they are unfounded and unsustainable in law. In the circumstances, the cumulative impact of points 1 to 3 formulated in Babu’s case (supra) with reference to the evidence available in this case persuades me to hold that the prosecution had failed to prove that the mandatory provisions under Rule 14 of the P.F.A. Rules are complied with. In short, in view of the failure on the part of the prosecution to prove compliance with Rule 14 of the P.F.A. Rules, the accused are entitled to be acquitted. In that view of the matter there is no need to consider the question as explained, earlier, as to whether tomato sauce could be added to the chicken fry and whether criminal liability could be attached on account of the presence of sunset yellow FCF solely due to the addition of tomato sauce while preparing the chicken fry. In fact, it has become unnecessary to consider that question any further. 10. The long and short of this long discussion is that, for the failure on the part of the prosecution to prove compliance with the mandatory provisions under Rule 14 of the P.F.A. Rules the presumption could not have been drawn in favour of the prosecution and it has to beheld that the prosecution had not succeeded in proving the guilt of the accused. It would be unsafe to rest conviction of the accused on such evidence as available in this case. The evidence on record in this case, in the circumstances, are insufficient to bring home guilt of the revision petitioner/Accused Nos. 1 and 2 and therefore the revision petitioners are entitled to be acquitted. Accordingly they are acquitted of the charges framed against them. The offence and sentence passed against the revision petitioners in S.T.No.718/2002 on the file of the JFCM-1, Neyyattinkara which was confirmed by the court of Sessions, Thiruvananthapuram as per judgment in Criminal Appeal Nos.256/2006 & 255/2006 are set aside. In the said circumstance the bail bond, if any, will stand cancelled. The revision petitions are accordingly allowed.