JUDGMENT : G.R. Udhwani, J. 1. Judgment and order dated 22-3-2011 rendered by learned Metropolitan Magistrate, Court No. 8, Ahmedabad in Criminal Case No. 32 of 2005 recording the acquittal for the respondent No. 1 for the offence punishable under Sees. 7(i) and 16(1)(a)(i) of the Prevention of Food Adulteration Act (For short 'P.F.A. Act'), has been assailed in this appeal under Sec. 378 of the Code of Criminal Procedure (for short 'Cr.P.C.'). 2. Acquittal of the respondent No. 1 was recorded solely on the ground that the food article concerned i.e. Ghee was not heated to make it homogeneous, at the time of collection of the sample by the Food Inspector. However, the learned Counsel for the first respondent has raised two more contentions for sustaining the impugned judgment and order namely, breach of Rule 14 and Rule 16(d) of the Prevention of Food Adulteration Rules, 1955 (for short 'the P.F.A. Rules'), and therefore, having regard to the settled legal position that in acquittal appeal the contention raised by the acquit though may not have been taken in the Court of original jurisdiction can be permitted, this Court proceeds to adjudicate the appeal also on the said two additional grounds. 3. To buttress the contention that the sample of Ghee was required to be heated to make it homogeneous, reliance has been placed on various decisions including the one rendered in State of Gujarat on behalf of C.P. Gohil, Food Inspector v. Prakashbhai Ramchandra Takhtani (Vendor), Misc. Criminal Application No. 13587 of 2009 on 3-3-2010, wherein after noticing that Ghee was adulterated with "turmeric powder", the Court reiterated the proposition of law that the sample of Ghee was required to be heated to make it homogeneous. No different opinion can be expressed than the one expressed by the Court in the said case, however question involved in this case is slightly different. The public analyst report would show that the food article was adulterated with sesame oil and the question is whether it was a Ghee as defined in Entry A. 11.2.11 of Appendix 'B' to P.F.A. Rules. 4. The learned Counsel for the appellant as also learned A.P.P. have invited attention of this Court to Entry A. 11.2.15 of the P.F.A. Rules. 4. The learned Counsel for the appellant as also learned A.P.P. have invited attention of this Court to Entry A. 11.2.15 of the P.F.A. Rules. It was contended that for a food article to constitute Ghee under the above entry, it must be a sole derivative either of milk, curd, deshi (cooking) butter or cream and not a blend of the said sources nor the derivative of any other source not included in the definition of Ghee. It was contended that the scientific evidence has confirmed the presence of sesame oil in the food article in question and that sesame oil being the derivative of sesame seeds having not been recognized as the source of Ghee within the above definition, the food article collected by the Food Inspector eventually on analysis could not statutorily be confirmed as Ghee. It was contended that the respondent No. 1 had misrepresented to the Food Inspector that it was Ghee whereas on scientific test, it was not confirmed as Ghee, and therefore, procedure of heating the Ghee to make it homogeneous before collecting its sample was not applicable when the sample collected was in fact not a Ghee. 5. As against that the learned Counsel for the first respondent would contend that when the sample was being taken, the Food Inspector was unaware of the fact that the food article was not a Ghee, and therefore, he was under an obligation to comply with the judicial pronouncements mandating the heating of Ghee at the time of collection of the samples, to make it homogeneous. The learned Counsel would contend that in absence of observance of such procedure, the Ghee was not made homogeneous, and consequently, benefit contemplated in the judicial pronouncements must be given to the accused. 6. This Court finds substance in the arguments advanced by the learned Counsel for the appellant as also the learned A.P.P. The purpose and the object of heating the Ghee is to ensure that its constituents are released and mixed properly so as to make the sample homogeneous and representative to the food article concerned. The accused would be entitled to the benefit of breach of Rule 14 of the P.F.A. Rules, when he successfully demonstrates that the food article collected by the Food Inspector answered the definition of Ghee above, stated. The accused would be entitled to the benefit of breach of Rule 14 of the P.F.A. Rules, when he successfully demonstrates that the food article collected by the Food Inspector answered the definition of Ghee above, stated. If what is collected does not turn out to be Ghee on scientific test, the accused has no right to urge for the said benefit. True, it is that in the instant case, the Food Inspector was unaware of the fact that what he has collected is not a sample of Ghee and it is also true that he was required to adhere to the judicial pronouncements to the above effect, if he had collected the sample of Ghee; however in none of the judicial pronouncements cited by the learned Counsel for the respondent No. 1, it was contended that the food article collected by the Food Inspector was not Ghee. It was thus admitted position that the food article, was Ghee. It is in the context of such admitted position that the decisions have been rendered obliging the Food Inspector to heat the Ghee at the time of collection of sample to make it homogeneous. In the instant case, the sample collected by the Food Inspector does not answer the definition of Ghee, above stated, as it is not sourced from one of the recognized sources under the definition, but it is a blend of additional source i.e. seeds of sesame. 'Ghee' defined in above-referred entry must be a derivative of one of the five sources namely, milk, curd, deshi (cooking) Ghee, butter or cream. It cannot be even a blend of the said recognized 5 sources in the definition. Sesame seeds are not defined as a source of Ghee, and therefore, oil derived from sesame seeds would not constitute Ghee and the addition of sesame oil to other recognized derivatives of Ghee, would take the food article out of the definition of Ghee i.e. a food article would cease to be Ghee on addition of any of the articles to it except those statutorily recognized in its definition itself. The Ghee when containing sesame oil can no more be defined as Ghee and thus would be adulterated within the meaning of Sec. 2(ia)(a) of the P.F.A. Act. The Ghee when containing sesame oil can no more be defined as Ghee and thus would be adulterated within the meaning of Sec. 2(ia)(a) of the P.F.A. Act. May be, that at the time of the collection of the sample, the Food Inspector was unaware of the fact that what he was collecting was not Ghee and he was obliged to adhere to the decisions above-referred for making the sample homogeneous; in the opinion of this Court if that premise is shaken and eventually by scientific evidence, if it is found that the sample collected by the Food Inspector was not in fact Ghee, non-observance of the proposition in the pronouncements above-referred would not benefit the accused trial Court was oblivious to the definition above-referred and the above-referred factual and legal position and landed in error in recording the acquittal on the ground above-referred. 7. However, the learned Counsel for the respondent No. 1 has successfully demonstrated the breach of Rules 14 and 16(d) of the P.F.A. Rules inasmuch as the Food Inspector does not bear testimony to the fact that the vessel in which he collected the sample was cleaned on the spot. The fact that the vessel in which the sample was collected, must be cleaned on the spot has been reiterated in plethora of decisions few of them being State of Gujarat v. M/s. Harkhchand Dahyuabhai, Criminal Appeal No. 670 of 1990 decided on 16-11-2000, State of Gujarat v. Jitendrakumar Natvarlal Patel, Criminal Appeal No. 3156 of 2008 decided on 20-2-2018, State of Gujarat through S.S. Patel, Food Inspector v. Shyamal Tolaram Kourani, Misc. Criminal Application No. 16203 of 2008 in Criminal Appeal No. 3036 of 2008 decided on 13-5-2009 and accused has been given benefit of doubt on that count. 8. Similarly, in Jethalal Lallubhai v. Baroda Municipal Corporation, 1978 GLR 448 , Khengar Dhana Rabari v. State of Gujarat, Criminal Revision Application No. 447 of 1978 decided on 8-2-1979, State of Gujarat v. Machhalal Bhabhutajee, Criminal Appeal No. 977 of 1977 decided on 15-4-1980 and State of Gujarat v. Shri Laxmi Industries, Criminal Appeal No. 2303 of 2005 decided on 15-9-2016, the accused as benefited for breach of Rule 16(d) of the P.F.A. Rules. In the instant case, no evidence came forth to say that the knots of the twine or thread were covered by means of sealing wax bearing the impression of the seal of the sender. 9. Thus, in the opinion of this Court, the respondent No. 1 is entitled to maintain the acquittal on the above two grounds. The appeal therefore, must fail and is dismissed, however not on the ground indicated by the Court below, but on the ground of breach of Rules 14 and 16(d) of the P.F.A. Rules. 10. For the foregoing reasons the appeal is dismissed. 11. Record and Proceedings if any shall be returned to the Court below.