JUDGMENT - V.P. SALVE, J.:---The acquittal of respondent Nos.1 and 2 in this appeal will have to be quashed for the reasons that the trial Court has misinterpreting the ratio of the Supreme Court judgment reported in (Municipal Corporation of Delhi v. Kacheroo Mal)1, (1976)1 S.C.C 412 and relying on the sub-para of plecitum 'B' acquitted the accused. In fact the most relevant paragraph in the reported case of the Supreme Court (ibid) is paragraph 13, which lays down :---

" That under the Rules a minimum proportion of insect-infestation or insect-damage is provided to deem the article unfit human consumption shows that the mere fact that any part of an article was insect-infested may not be conclusive proof of its being 'adulterated' under sub-clause (f). All the adjectives, used in the sub-clause are a presumptive and not an absolute test for quality of the article being unfit for human consumption.

"In the case of an article in respect of which the Rules do not prescribe any minimum standard of purity or any minimum proportion of insect-infestation that would exclude it from the definition of 'adulterated article, it will be a mixed question of law and fact whether the insect-infestation is of such a nature, degree and extent as renders the article unfit for human consumption. The opinion of the Public Analysts who examines and analyses the sample as to the fitness or otherwise of the sample for human consumption, would constitute legal evidence. A Public Analyst is supposed to be specially skilled in the science of dietetics. And as expert in in the science, he is competent to spine testify about this fact."

2. This is a case in which the Food Inspector purchased groundnut oil and Ral Tandul from accused No. 2, who is arrayed as respondent No. 2 before us. The groundnut oil was found not adulterated. However, on analysis of the Ral Tandul, it was found to be unfit for human consumption as it was infested with germs. The seizure was in the presence of panchas (P.Ws. 2 and 3), who as usual, turned hostile did not support the prosecution. However, there is no dispute that the samples were purchased and seized by Food Inspector (P.W.1) from accused No. 2.

3. Mr. Patankar, learned Counsel for respondents Nos. 2 to 4 contended that the trial or the prosecution should be vitiated because Rules 14 and 16 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called " the Rules") were not followed. It was his contention that it must be stated positively by the Food Inspector that he took successive steps as directed in the Rules, particularly rule 16, while sealing and also while dispatching the seized samples. It was, according to him, a lacuna in the prosecution case and rule 16 being a mandatory rule, any lacuna left by the prosecution in its case must result in benefit being given to the accused.

4. Assuming for the sake of argument that rule 16 is mandatory, in the cross examination of P.W.1, we find that he has made a categorical statement that he has followed rule 16. According to Mr. Patankar, this statement on oath is not sufficient. P.W. No. 1 should have given the details of the steps taken by him, showing that rule 16 was strictly followed. He cited an unreported judgment, viz., Cri. App. No. 531/75 dt. 24-9-1976, in support of his contention. In that case, the Court held that on reading all the evidence of the Food Inspectors, it was made clear that he had not used the gum as is required under Rule 16 to fix the envelopes. This is not a similar case. No questions were put to the Food Inspectors (P.W. 1) here in this case, whether he used gum or not to fix the envelopes, in which the samples were taken. If he had denied that he had used gum, then, perhaps, the said case could have been used by Mr. Patankar to show to us that Rule 16 has not been followed. In the absence of any such specific questions being put to the witness, we cannot held that Rule 16 is not followed. On the other hand, we find that when

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