R.K. Shukla, J. - (1.) This appeal filed on behalf of the Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad under Sec. 378(4) Code of Criminal Procedure, is directed against the judgment and order dated 25 -4 -1978 passed by Sri K.P. Mathur, Special Judicial Magistrate, Allahabad whereby he has acquitted Asharfi Lal Yadav, accused -Respondent of the charge under Sec. 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as Act).
(2.) Brief facts of the case are that on 19 -12 -1975 at 1.30 P.M., at Allabpur Matiara Road, Allahabad, Tulsi Ram Dubey PW 1, Food Inspector, Nagar Mahapalika, Allahabad disclosed his identity to the accused and told him that he would take sample of the milk for analysis. After giving notice to the accused in from VI, the Food Inspector took 660 ml., of milk on payment of its price. The Food Inspector has further stated in his cross -examination that he did not purchase 660 ml. milk in one bulk, but he first took 500 ml. then 100 ml. and thereafter 60 ml. approximately. Thereafter he filled the whole 660 ml. milk thus purchased from the accused -Respondent in three phials equally after mixing formaline. It is not noted in form VI as to what was the class of the milk purchased as sample. The Public Analyst tested and reported treating it as buffalo milk. On analysis, the Public Analyst found fatty contents 2.6% and non -fatty solids were found 9.9%. Thus there was a deficit of 57% in fatty contents.
(3.) After obtaining sanction, complaint was filed. The prosecution examined two witnesses, namely, Tulsi Ram Dubey Food Inspector PW 1 and S.C. Srivastava PW 2 in support of its case. The accused -Respondent denied sale of milk sample and said that the Food Inspector did not take milk sample in bulk but each phial was separately filled from the can one by one. After considering the entire evidence, the Special Judicial Magistrate, Allahabad acquitted the accused -Respondent on the following two grounds: 1. That it cannot be said that the prosecution has proved that formaline was added to the milk sample as required under Rules 20 and 21. 2. Compliance of Sec. 11(1)(b) has not been made out. The Food Inspector did not take milk sample in bulk to be divided in three equal parts. Such sample cannot be said to be worthy of reliance.;