JUDGMENT : This appeal is preferred by the Food Inspector, Mattannur Municipality against judgment dated 9.12.2005 in S.T.C. No.830/2000 of Judicial First Class Magistrate Court, Mattannur (for short 'the trial court') which was originated from a complaint lodged by him under the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). In the complaint lodged by the Food Inspector, commission of the offences punishable under Sections 16(1)(a)(i) r/w Section 2(ia)(m) and Section 7(i) of the Act and Rule 5 Appendix B-A.16.16(ii) were alleged against the 1st respondent, the sole accused in the case. 2nd respondent is State of Kerala represented by Public Prosecutor. 2. The complaint was lodged by the Food Inspector, Mattannur Municipality before the trial court alleging commission of the aforesaid offences by the 1st respondent. The trial court after trial, found the accused not guilty for the offences with which he was charged and acquitted him under Section 255(1) Cr.P.C. Aggrieved by that order the prosecution has come up in appeal. The facts of the case relevant for this appeal are summarised in brief hereunder: On 25.1.2001 at about 3 pm., the Food Inspector of Mattannur Municipality inspected a hotel named Raza and purchased 750 ml. of mango pickles in oil therefrom. The hotel was run by the 1st respondent. The purchased mango pickles in oil was forwarded to Public Analyst, Kozhikode for analysis. After analysis of the sample, the Public Analyst declared the same as adulterated and certified that it does not conform to the standard prescribed for pickles in oil. Based on the report of the Public Analyst, a prosecution was launched against the accused under the Act and Rules thereunder. 3. The complaint was taken on file as S.T.C.No.830/2001 by the trial court. On process being served, the accused entered appearance. He preferred an application under Section 13(2) of the Act for getting the sample available in the court forwarded to the Central Food Laboratory, Gasiabad for analysis. Accordingly, the sample was forwarded to the Laboratory and a report was obtained. Thereafter, copies of the prosecution records have been furnished to the accused. He was also enlarged on bail. On the scheduled day, the particulars of the offence were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. Accordingly, the trial was held. 4. Thereafter, copies of the prosecution records have been furnished to the accused. He was also enlarged on bail. On the scheduled day, the particulars of the offence were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. Accordingly, the trial was held. 4. On the side of the complainant, the Food Inspector, Mattannur Municipality was examined as PW1. The other witnesses of the prosecution were examined as PWs 2 to 4. The documents were marked as Exts.P1 to P23. After closure of the prosecution evidence the accused was questioned under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all the incriminating circumstances and tendered oral evidence in defence as DW1. The trial court raised the following points for consideration: “(i) Whether accused had adulterated mango pickle in oil as alleged by prosecution? (ii) If the offence is proved, what is the order as to sentence?” 5. On appreciation of the evidence and evaluation of the rival arguments put forth by the learned public prosecutor and the learned counsel for the accused, the trial court answered the points raised by it in the negative and found the accused not guilty for the offence charged against and acquitted him. Aggrieved by the judgment of the trial court that the prosecution has come up in appeal before this Court. 6. Sri.D.Chandrasenan, the learned Public Prosecutor has advanced arguments on behalf of the prosecution. According to him the trial court failed to appreciate the evidence adduced by the prosecution in its correct perspective and accordingly the guilt of the accused for the offences charged against him, was found against. According to him, PW1, the Food Inspector, Mattannur Municipality, had purchased the mango pickle in oil from a hotel named 'Raza' belonging to the accused and the purchase was well evidenced from the receipt marked in evidence as Ext.P6. After complying with all the procedural formalities validly, PW1 had forwarded the sample drawn from the purchased mango pickle in oil to the Public Analyst. After analysis a certificate was obtained by the court wherein the sample forwarded was certified as adulterated. Accordingly, a complaint was laid before the trial court to launch the prosecution. According to him, PW2 is none other than a Peon of Mattannur Municipality at the relevant time. After analysis a certificate was obtained by the court wherein the sample forwarded was certified as adulterated. Accordingly, a complaint was laid before the trial court to launch the prosecution. According to him, PW2 is none other than a Peon of Mattannur Municipality at the relevant time. He had accompanied PW1 while the mango pickle in oil was allegedly purchased from the hotel. He had not only witnessed the preparation of Ext.P7 mahazar by PW1 from the spot but also signed the same. According to the learned Public Prosecutor PW3 is the Secretary of Mattannur Municipality at the relevant time and was also designated as the Local Health Authority of the said municipality. The sample drawn from the mango pickle oil seized from the hotel was sent by PW1 to PW3 for analysis. The authority of PW3 to transact as the Local Health Authority is established by the prosecution through Ext.P10, the true copy of a Notification. As per the Notification, Municipal Commissioner is empowered to act as Local Health Authority, where health officers are not posted. Inviting attention of this Court to the provisions of the Kerala Municipalities Act, 1994 the learned prosecutor contended that the Municipal Commissioner is also known as Municipal Secretary. Exts.P19 and P20 marked in evidence by the prosecution are supportive of the said contention. In view of the above, the learned Public Prosecutor urged that valid pieces of evidence were available for the trial court to conclude that PW3 was empowered to transact as Public Analyst. PW3 had examined the sample forwarded to the Chemical Examiners' Laboratory and a report in Form No.3 has been prepared and made available to the trial court. It was certified therein that the sample pickle in oil was adulterated. Accordingly, the prosecution proceedings were initiated against the accused and by Ext.P22, the accused was also intimated by PW1. From Ext.P23 available in evidence, it is established that the intimation sent was received by the accused. Thereupon, the accused filed an application under Section 13(2) of the Act to get the second sample available in the court to be forwarded to the Central Food Laboratory for analysis. PW4, a witness to Ext.P7 mahazar was also examined by the prosecution to establish the incident that took place on 25.1.2001. Thereupon, the accused filed an application under Section 13(2) of the Act to get the second sample available in the court to be forwarded to the Central Food Laboratory for analysis. PW4, a witness to Ext.P7 mahazar was also examined by the prosecution to establish the incident that took place on 25.1.2001. Therefore, there is no scope for a doubt to entertain against the successful discharge of burden by the prosecution in proving guilt against the accused. But, the trial court on an incorrect appreciation of evidence failed to find him guilty. According to the learned Public Prosecutor circumstances being so, an elaborate scrutiny of evidence by this Court is required. 7. Per contra, the learned counsel representing the first respondent/accused has contended that the trial court had appreciated the evidence in it's correct perspective. According to him, had the evidence been properly appreciated by the trial court it would not have been arrived at a finding on point No.1 in the judgment under challenge against him. He had invited this Court's attention to the evidence adduced by the prosecution through it's witnesses, especially PW1, to contend that there is no basis for any of them to convince themselves that the food item purchased from the hotel was mango pickle in oil. According to him there is absolute want of evidence to establish the basis wherefrom PW1 had perceived that the food item purchased was mango pickle in oil. Inviting the attention of this Court to the evidence of PW1, the learned counsel contended that he had visited the hotel at about 3 pm on 25.1.2001 and the food item contained in a bucket kept at the kitchen was purchased. He had not stated that a label naming the food item was there on the bucket at the time of seizure or else that any employees of the hotel had conveyed to him, that it was mango pickle in oil. According to PW1 the employees of the hotel conveyed to him only that the contents in the bucket is nothing but 'mango curry' left after that day's service alongwith meals as side dish. 8. The learned counsel has also contended that a laboratory as contemplated under Section 23(1A)(ee) of the Act was not started functioning then. The learned counsel has also drawn the attention of the Court to Section 23(1A)(ee) to substantiate his arguments. 8. The learned counsel has also contended that a laboratory as contemplated under Section 23(1A)(ee) of the Act was not started functioning then. The learned counsel has also drawn the attention of the Court to Section 23(1A)(ee) to substantiate his arguments. Section 23(1A)(ee) being relevant in the context is extracted hereunder. “23. xxxxxxx (IA) xxxxxx (ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this Act;” 9. The contention of the learned counsel was that since the sample of the food item purchased from the hotel was not forwarded to a laboratory as envisaged by the provision cited supra, the food item seized cannot be said to have been properly analysed. The learned counsel has also invited the attention of this Court to Pepsico India Holdings Pvt.Ltd. v. Food Inspector and another [ 2010(4) KLT 706 (SC)] to contend that analysis of food item, if not held by a laboratory being constituted as per the provisions of Section 23(1A)(ee) of the Act, the prosecution is vitiated. The learned counsel has also relied on the dictum laid by the Division Bench of this Court in Rasheed N.K v. Food Inspector, Thalassery and another ( 2016(2) KLT 390 ) on the basis of Pepsico's case (supra) to rest the aforesaid contention. 10. In the backdrop of the rival contentions put forth by the learned Public Prosecutor and the learned counsel for the 1st respondent, a scrutiny of the evidence on record is done. It is pertinent to note that PW1 is an authorised officer attached to Mattannur Municipality to conduct the search and seizure under Act. The oral evidence tendered by him is totally insufficient to discern that the food item was purchased by him after a perception that it was nothing but mango pickle in oil. The oral evidence of PW1 is totally silent about any query made by him to any of the employees of the hotel or its customers available for being convinced that the food item purchased was 'mango pickle in oil'. He presumed on his own that the food item is mango pickle in oil, but on what basis, is not known. Whether a label was affixed on the bucket for identification of it, is not known. He presumed on his own that the food item is mango pickle in oil, but on what basis, is not known. Whether a label was affixed on the bucket for identification of it, is not known. Sample was drawn by PW1 from the food item purchased describing it as mango pickle in oil and was examined on the premise that it was such a food item. In such an examination the Public Analyst found that it does not conform to the standards prescribed under Clause (ii) of Rule A.16.16 of the Rules, 1955. Only when the food item seized by the authority concerned was convinced prima facie by the prosecution as mango pickle in oil, then alone it could seek for an analysis to confirm whether it conform to the standards prescribed under Clause (ii) Rule A.16.16 of the Rules, 1955 and on obtaining to chargesheet the owner of the hotel or shop as the case may be. In the case on hand without having any definite idea as to the nature of the food item seized that it was sent to the public analyst for analysis. What was forwarded for analysis to the public analyst was not branded mango pickle in oil with a label showing its ingredients. The food item from its description itself is indicative of something of instant preparation meant for service for the day and not for preservation. 11. Section 23(1A)(ee) and (hh) provides that: “23. Power of the Central Government to make rules — (IA) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :— xx xx xx xx (ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this Act; (hh) defining the methods of analysis;” 12. From the provision extracted supra, it is for the Central Government to make Rules after consultation with the committee and to publish those by Notification in the Official Gazette. Under clause (ee) of sub-section (1A) of Section 23 of the Act, the Central Government shall make Rules defining the laboratories where samples of articles of food or adulterants may be analysed by Public Analysts under this Act. Under clause (ee) of sub-section (1A) of Section 23 of the Act, the Central Government shall make Rules defining the laboratories where samples of articles of food or adulterants may be analysed by Public Analysts under this Act. Under Clause (hh) of sub-section (1A) of Section 23 of the Act, the Central Government is empowered to make Rules defining the methods of analysis. Therefore, only when Rules have been framed by the Central Government in accordance with Section 23 of the Act, then alone certainty as to the laboratories where analysis must be done and the manner in which it shall be done would be reached. At the relevant time when the offence was allegedly committed by the accused, Rules defining the laboratories and the methods of analysis had not been framed by the Central Government. 13. When the maintainability of a criminal prosecution was challenged on the ground of absence of any prescribed and validated method of analysis under Section 23(1A) and (hh) of the Prevention of Food Adulteration Act, 1954 and non-specification of level of tolerance in respect of presence of pesticide residue in sweetened carbonated water in Table appended to Rule 5(2), the Apex Court reversed the judgment of the High Court maintaining the prosecution in Pepsico India Holdings Pvt. Ltd. v. Food Inspector and another [ 2009(2) KLT 69 ] holding that non-formulation of rules under Section 23(1A) (ee) and (hh) is fatal to the prosecution. The Supreme Court also held that failure of Central Government to frame Rules to define Laboratories where samples of food items could be analysed by public analyst or to define validated method of analysis are relevant for the purpose of brining home a charge against the accused for violation of Rules 65 and 2(ia)(h). The decision of the Apex Court in Pepsico supra was followed by a Division Bench of this Court in Rasheed M.K. v. Food Inspector, Thalassery and another [ 2016 (2) KLT 390 ] to hold that prosecution proceedings have to be terminated for failure of the Central Government to define Laboratories in terms of Section 23(1A)(ee) and consequential failure to conduct analysis of particular sample by a public analyst attached to such a Laboratory. On appreciation of the evidence on record in the case on hand, the sample of mango pickle in oil, seized from the petitioner's shop was not analysed by a public analyst associated with a Laboratory as defined under Section 23(1A)(ee) of the Act and not in accordance with the method of analysis provided under Section 23(1A)(hh). Therefore, the prosecution, by which the accused was charge-sheeted for the offence punishable under Section 16(1)(a) (i) r/w Section 2(ia)(m) and Section 7(i) of the Act and Rule 5 Appendix B-A.16.16(ii) based on the report obtained after analysis of the sample of mango pickle in oil by the public analyst or the Central Food Laboratory will not sustain. In view of that, the challenge by the appellant against the finding of the trial court that the accused is not guilty of the offence punishable under Sections 16(1)(a)(i) r/w Section 2(ia)(m) and Section 7(i) of the Act and Rule 5 Appendix B-A.16.16(ii) and the order of acquittal will not sustain. The judgment under challenge is not liable to be interfered with. The appeal deserves dismissal. In the result, the Crl. appeal is dismissed.