A.R. Shimpi, J. - (1.) The State of Maharashtra has challenged the order of acquittal recorded in favour of the respondent in Criminal Appeal No. 29 of 1975 by the learned Sessions Judge, Satara.
(2.) The facts, in brief, are as under:- One Chandrakant Malekar, who is working as a Food Inspector, for Satara District, visited Koyana Vishranti Griha, belonging to the accused situated at House No. 34, Guruwar Peth, Karad, District Satara. Shri Malekar visited the said Vishranti Griha on 14-5-1973 along with the Panchas. The accused was present there. Shri Malekar told him that he wanted to purchase ice-cream from his Vishranti Griha for the purposes of analysis. The accused then sold 900 grams of ice-cream from the refrigerator in his Vishranti Griha to the complainant Malekar and charged Rs. 7.20 as the price. Malekar paid the price and obtained receipt from the accused. He divided the quantity of the ice-cream purchased by him in three equal parts, and put each part in separate dried and clean bottle. He then added 24 drops of formalin to each of the bottle in which the specimen of ice-cream was taken. The bottles were sealed and wrapped each with a brown paper. Then they were sealed. One bottle containing one third part of the ice-cream mixed with formalin was given to the accused and Malekar carried the two sealed bottles with him. He sent one of the sealed bottles on 16-5-1973 to the Public Analyst, Pune for analysis with his peon. Along with peon he had sent a memorandum containing form No. VII and sealed packet containing specimen seal and duplicate copy of the Memorandum. Malekar received the report from Public Analyst on 6th July, 1973, which showed that the milk fat contained in the specimen was only 4.52%. It was less than 8% of the fat which is required as per the rules. The Public Analyst held that the sample of the ice-cream was adulterated. The Food Inspector then wrote to the Commissioner, Food & Drugs Administration, Bombay, for according sanction for the prosecution, and the sanction was accorded on 9th October, 1973, and ultimately the complaint was filed on 26th November, 1973 in the Court of the Second Joint Civil Judge and Judicial Magistrate (First Class), Karad against the accused for selling adulterated food stuff, namely the ice-cream.
(3.) It is also an admitted fact that the accused appeared pursuant to the summons from the court for the first time in the Court on 2nd of April 1974. In the trial Court the Food Inspector was examined who substantially corroborated his complaint and deposed what I have stated as the prosecution case. He was cross-examined. He stated that he has taken B.Sc. degree in Science. According to him, if formalin is added in food articles, the quantity of it remains fit for analysis up to one year and it deteriorates if formalin is not added in it. After one year, it is not fit for analysis even if formalin is added and if formalin is not added in it, it is not fit for analysis even after two days. He further admitted that - "I have no authority to show that the food article is fit for analysis up to one year if formalin is added in it. I have not called opinion of the public Analyst in the above respect. I am not expert regarding the preservation of the food articles including ice-cream." It was suggested to him that even if formalin is added in the ice-cream, it will not be fit for the analysis after four months. He further submitted that he had not given any instructions in writing to the accused to keep the sealed bottle given to him in the refrigerator, and that there is no refrigerator in his office at Satara for keeping such sample bottles, and that the sealed sample bottle which he produced in Court, was not kept by him in the refrigerator.;