S.B.Capoor, J. - (1.) This appeal by the State is directed against the order of the Magistrate First Class, Kandaghat at Simla, dated the 25th Sept., 1962, acquitting the respondent Vijay Kumar on a charge under section 16(1) (a)(i) of the Prevention of Food Adulteration Act, 1954 (Act No. 37 of 1954).
(2.) The case proceeded on the complaint of Shri Sham Lal Food Inspector, Simla, who appeared in the case as P.W.l. He has testified that in the presence of Ram Kishan (P.W. 2) and another person he inspected the grocer's shop of the respondent in the Lower Bazar, Simla on the 13th June 1961, and purchased from him 6 chhatanks of Haldi (turmeric powder) for 65. vide the memo Exhibit P.B. Two chhatanks each of the powder was put in three bottles which were sealed according to the rules. One of the bottles was given to the respondent and another sent to the Analyst to the Punjab Government, Simla. The latter's report dated the 29th June 1961 is to the effect that the total ash in the sample of Haldi powder sent to him was 8.58 per cent. According to the prescribed standard as given in Appendix B to the Prevention of Food Adulteration Act, 1954 at item A.05.01, the maximum possible permissible quantity of total ash in turmeric powder is 7 per cent.
(3.) The respondent in his statement under section 342 of the Code of Criminal Procedure admitted that six chhatanks of Haldi powder had been purchased from his shop as stated by the Food Inspector. The defence put up in the course of arguments before the learned Magistrate by his counsel was that even if the powdered Haldi in the container from which the sample was taken could be presumed to be uniform initially, dust particulars and others could enter it in the upper layer when the container was open so that the upper layer sample could contain a larger percentage of total ash than the rest of the Haldi in the container. The learned Magistrate was apparently of the view that it was only just before taking the sample the total content of the container should have been properly mixed up.;