SHAIKH HAMID S O SHAIKH TARMOHAMAD Vs. DAGU S O GANGARAM LIMBHARE

JUDGEMENT

(1.) This appeal is directed against the order of acquittal dated 31st August, 1976, passed by the learned Judicial Magistrate, First Class, Aurangabad, in Criminal Case No. 7497 of 1975. The proceedings arise out of a prosection under the provisions of Prevention of Food Adulteration Act and the article in question is milk.

(2.) Case of the prosecution is that on 29th August, 1975 at about 7.30 in the morning, the complainant, who is the Food Inspector, had gone with panch Ramesh to Bungalow No. 5 to purchase milk. The accused was coming from Village Mitmita, to seel milk of cow and buffalo at Aurangabad. The Food Inspector purchased milk of cow and buffalo from the accused after disclosing his intention. After completing his formalities and after receipt of report of the Public Analyst and after sanction, the present prosecution was filed against the accused for having committed an offence punishable under section 2(i)(a) read with section 16(1-A) of the Prevention of Food Adulteration Act. Holding that the prosecution had failed to prove that the accused sold adulterated cow and buffalo milk to the complainant, the learned Magistrate acquitted the accused. This acquittal is challenged before me in this appeal filed by the original complainant.

(3.) In support of the prosecution case, prosecution witness No. 1, the Food Inspector, in question was examined. The panch Ramesh was also examined as prosecution witness No. 2. Going through their evidence as also the report of the Public Analyst and considering the facts and circumstances of the case and the legal position involved, it is, in my opinion not possible to interfere with the order of acquittal passed by the learned trial Magistrate in favour of the accused. Evidence on the record shows that the complainant took milk not at one time but at three times and put it in three separate bottles. This is not a case where sample was taken and then divided into three separate parts and put into three separate bottles in question. On the contrary, this is a case where samples can be said to have been thrice taken independently and put into three separate bottles. No good reason has been given by the witnesses as to why he took the different samples and put them in three separate bottles and as to why he did not take one sample and divide it into three different parts as is the usual procedure under the Act and Rules. The Food Inspector cannot in the circumstance be said to have strictly followed the procedure of section 11(1)(b) of the Prevention of Food Adulteration Act. Though this by itself may not be a very crucial circumstances against the prosecution, it can alongwith the other circumstances of the case prevent this Court from interfering in an appeal against an acquittal.