S.S.DEWAN, J. - (1.) THIS Criminal Revision has been filed by Takan Dass petitioner against the judgment of the Additional Sessions Judge, Gurgaon, wanted March 18, 1986, dismissing the appeal of the petitioner against the judgment of the Chief Judicial Magistrate, Gurgaon whereby he was convicted under section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and was sentenced to six months R.I. and to pay a fine of Rs. 1,000/-.
(2.) THE case proceeded, on the complaint of S.P. Malik, Government Food Inspector It is alleged that on 30th July, 1981, at about 7.00 P. M. the Food Inspector along with Dr. R.K. Sharma intercepted the petitioner at Sohana Road, Badshahpur when he was having in his possession ten litres of cow's milk, contained, in a drum for sale. The Food Inspector purchased 660 mls. of cow's milk on payment of Rs. 2/-. One of the samples sent to the Public Analyst was subsequently found to be adulterated as its quality was below the prescribed standard. The only point pressed before me by the learned counsel for the petitioner is that the milk was not properly stirred by the Food Inspector when its sample was taken the Courts below, however, accepted the evidence of the Food Inspector at its face value that the contents of milk in the drum had been made homogeneous and ruled out the defence plea that the milk was not stirred before the sample was taken I, however, find substance in the contention of the learned defence counsel. On this point, the Food Inspector has no doubt stated at the trial that the milk was stirred before the same was purchased but in the complaint filed by Food Inspector, it is nowhere mentioned that the milk was stirred before its sample was taken by the Food Inspector. It is a matter of common knowledge that cream accummulates at the top of the milk and if the milk is not properly stirred when the sample is taken, it is bound to be deficient in essential ingredient. In the present case, the fact that the fat was found more than the minimum prescribed standard and the marginal deficiency was only in the solids not fat would further indicate that the stirring of the milk at the time of taking the sample is doubtful.
(3.) THE result, therefore, is that the Revision Petition is allowed, conviction and sentence of the petitioner are set aside and he is acquitted of the charge. The amount of fine if deposited by the petitioner, shall be refunded to him.;