( 1 ) THE main question raised in this appeal is: Whether the report of a Public Analyst under sec. 13 of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act) which is not in the form No. 1 prescribed by Rule 7 of the Prevention of Food Adulteration Rules 1956 (hereinafter referred to as the Rules) is admissible in evidence under sec. 13 (5) of the Act without examining the Public Analyst ? Together with this question the question which may collaterally arise has also been posed in this proceeding. It is whether: in a case where the report is not in the prescribed form as stated above is it open for the prosecution to examine the Public Analyst and prove the facts stated in the report ?

( 2 ) THE matter has come up before us on a difference of opinion on the first question which arose as a result of our learned brother Surti J. having found himself unable to see eye to eye with the interpretation of sec. 13 (5) of the Act by our learned brother D. A. Desai J. in Criminal Revision Application No. 587 of 1972 decided on July 17 1973 On account of this Surti J. has referred the matter to a Division Bench.

( 3 ) THE facts necessary for the present purpose may be stated briefly. The appellant is a food grains dealer; and respondent No. 2 being the Food Inspector of Ahmedabad Municipal Corporation purchased from the appellants shop on August 3 1971 Tuver Dal. Admittedly he did this for the purpose of the Act. Therefore having divided this article into three samples and sealing them he sent one of the samples to the Public Analyst. The Public Analyst gave his report at Ex. 5 stating as the result of his analysis that metanyle yellow colour had been added to Tuver Dal which is not allowed under the Act. This report was given in form No. III as prescribed by Rule 7 of the Rules. But the difficulty in this case for the prosecution arose out of the fact that instead of utilising the amended form No. III as substituted in the year 1968 in the Rules the old form No. III was utilised. The report has been made on August 5 1971 In view of this report the appellant came to be prosecuted for the offence punishable under sec. 16 (1) (a) (i) read with sec. 7 of the Act. At the trial the appellant pleaded not guilty to the charge. The aforesaid report of the Public Analyst was admitted into evidence as evidence of the facts stated therein without examining the Public Analyst. We are not much concerned with the defence raised by the appellant to the effect that he had purchased the Tuver Dal from a whole-seller and bad sold it in the same condition.

( 4 ) THE learned City Magistrate did not accept this defence and having held that Tuver-dal was adulterated convicted the appellant under sec. 16 (1) (a) (i) read with sec. 7 of the Act sentencing him to six months simple imprisonment and a fine of Rs. 1000. 00 with further simple imprisonment for three months in case of default. Hence this appeal.

( 5 ) IN the case which arose before D. A. Desai J. in Criminal Revision Application No. 587 of 1972 also the report of the Public Analyst was in the old form and not in the amended form. The question about admissibility of this report without examining the Public Analyst therefore arose before the learned Judge. The learned Judge expressed himself on this question as under:" Surprisingly this form No. III was amended on 8th July 1968 and even after a lapse of five years the Ahmedabad Municipal Corporation has not awakened to its duty to amend its printed forms in which the reports are submitted. Only that report which is in the prescribed form becomes admissible in evidence without the evidence of the Public Analyst. If the report is not in the prescribed form and Public Analyst is not examined obviously the report would be inadmissible If the report is excluded from the evidence there is nothing to show that article of food in question was an adulterated article of food. I am expressing no opinion on the question