The main legal point established in the judgment is the distinction between mandatory and directory provisions, the presumption of regular performance of official acts, and the need to prove prejudice in addition to non-compliance to invalidate an act complained of.

This criminal appeal against acquittal came up for hearing again when the judgment of conviction and sentence under section 16(1)(a)(i) of the Prevention of Food Adulteration Act was set aside in a petition filed under section 482 of the Code of Criminal Procedure and the appeal reopened.

2. Sample is curd, which the respondent exposed for sale in his hotel and sold to PW 2 Food Inspector on demand without specifying whether it is from milk of cow or buffalo. Rules require it to be treated as curd from milk of bufallo. Ext. P1 report issued by PW 1 Public Analyst shows it to be substandard going by the standard of curd from milk of cow or bufallo. It also contained not less than 31% of added water. Sale and adulterated nature of the sample were found by the Magistrate. Those aspects were not challenged before me.

3. Curd was exposed for sale in the hotel in cups. PW2 purchased 6 cups of curd. In the box, he said that the entire quantity purchased was poured into a larger vessel brought by him using an ounce glass and then it was churned and mixed before being sampled in three clean and dry vessels. Magistrate is of the opinion that this is insufficient. She said that the entire quantity of curd exposed for sale in the hotel had to be churned and mixed together and the purchase ought to have been after doing so in order to make what is purchased homogeneous. Omission to do so was the sole ground of acquittal.

4. Even the counsel for the respondent did not attempt to support this perverse ground of acquittal. This court, in umpteen cases, had occasion to say that in a sale if mixing or churning is required, it is for the vendor to do so. What PW2 claimed to have done itself is a super fluidity though he has done so in good faith. Attempt was, therefore, to support the acquittal on other grounds. It is trite law that an acquittal could be supported on grounds not relied on by the acquitting court. Acquittal was supported before me only on grounds of violation of Rules 14, 17 and 18 and none else. I need only consider those grounds.

5. Rule 14 deals with the containers used for sampling and how they were to be closed. They must be clean and dry and shall be closed sufficiently tight to prevent leakage, evaporation and entry of moisture when the sample is a dry substance. There is no complaint that these formalities are not observed. Mahazar mentions it and PW2 has sworn to it. In the box, for the first time, PW2 divulged the use of an ounce glass and vessel for mixing the curd. Nobody asked him and he did not voluntarily say that they were clean and dry. This is the basis of the technical plea. Ext. P1 report of analysis and the evidence of PW 1 show that everything was intact and the sample was fit for analysis. No extraneous matter was there evidencing any unclean vessel being used. When an official act is shown to have been performed, there is the presumption that it has been regularly performed until at least that presumption is rebutted. Normally clean and dry ounce glass and vessel alone could have been used by the Food Inspector. Presence of not less than 31% of added water cannot be attributed to an imaginary possibility of the ounce glass and vessel not being dry. If there is such a case, it ought to have been at least put to PW2 and an opportunity given to him. Contention in that respect was not taken before the trial court and it appears to be fanciful. The complaint seems to be that he did not mention in the mahazar that these vessels were clean and dry. When these vessels themselves were not made mention of in the mahazar, he cannot be expected to say that they are clean and dry. These are not vessels dealt with in Rule 14.

6. Violation of Rules 17 and 18 is also a new contention. These rules relate to the manner, method and time of the sealed containers and Form VII memorandum being forwarded to the public analyst and local health authority as well as copy of memorandum and specimen impression of the seal