Dr. Pratibha Upasani, J.

1. This Criminal Appeal is filed by the Appellant State of Maharashtra under Section 378(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the (Cr.P.C.), being aggrieved by the Judgment and Order dated 23rd December, 1985 passed by Judicial Magistrate, First Class, Court No. 1, Kolhapur in Criminal Case No. 157 of 1981. By the impugned Judgment, the Trial Court acquitted the Respondents/original accused Mohiddin Gaibi Chougule for offence punishable under Section 7(i) read with Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') and Rules thereunder, as amended.

2. The case of the prosecution is as follows :

The Food Inspector Mr. B. K. Karyappa went alongwith Mahadeo Anna Alase (the panch witness), and paid visit to the milk dairy of the Respondent/accused known as M/s. Shetkari Seva Dugdhalaya situated at CTS No. 1586 in 'C' ward at Kolhapur. He paid his visit on 9th March, 1981 at about 3.35 p.m. Thereafter, he disclosed his identity to the accused, that he was a Food Inspector, The accused was present in the premises and was looking after his business. Mr. Karyappa Inspected the premises in the presence of panch witness, and it was found that buffalo milk was stored for sale in the said premises. The Food Inspector purchased 660 ml. of buffalo milk for the purpose of test and analysis, and paid amount of Rs. 2/- as the price of the said buffalo milk, and obtained receipt from the accused in respect of the payment. Then, Food Inspector gave intimation to the accused in Form No. VI No. 474. He also issued notice to accused under Section 14(a) of the Act. The buffalo milk which was purchased by the Food Inspector was equally divided into three parts, and each part was filled-in each of three dry, clean and empty glass bottles. 18 drops of formalin were added in each bottle as preservative. These bottles were then sealed as per the provision laid down in the Act and the Rules thereunder, as amended up-to-date. Sample labels were pasted on the bottles with a paper slip having signature of Local Health Authority bearing No. KMC (ii) Kolhapur No. A-1950. Thereafter, signatures were obtained so as to have part of the signature on the paper slip and part of the signature on the wrapper. Then all the three sample parts were taken by the Food Inspector in his possession. Detail panchnama on the spot was made as per the situation which was prevailing at the premises.

On 10th March, 1981, the Food Inspector sent one sealed sample part bearing Sample No. BKK/19/81 to the Public Health Laboratory. Kolhapur, for the purpose of analysis alongwith the original memorandum in Form No. VII, under covering letter by hand delivery. Duplicate copy of Form No. VII, so also, the specimen impression was sent under covering letter by hand delivery and receipts of the same were obtained from the Public Analyst, Kolhapur. On the same day, the remaining two sample partsalongwith two copies of memorandum in Form No. VII under covering letter, and two copies of specimen seal impression under the covering letter were also sent by hand delivery and receipts thereof were obtained from the Local Health Authority, Kolhapur.

Further, the Public Analyst, Kolhapur sent report in respect of sample of buffalo milk bearing Sample No. BKK/19/81 vide report No. 1005 dated 1st April, 1981 from Local Health Authority, Kolhapur on 10th April. 1981.

The Public Analyst, in his report, declared the result of analysis as below :

'1. Total solids % - 12.94

2. Milk fat % - 5.20

3. Solids not fat % - 7.74.'

The report of the Public Analyst, thus, reveal that the sample contained milk fat which was less than 6.0%, and solid, not fat less than 9.0%, and therefore did not confirm to the standards of the buffalo milk as per the Rules made under the Act.

Thereafter, on 23rd April, 1981, the Public Analyst sent one letter to the accused, calling upon him to give information in respect of the licence and the proprietorship of the dairy, in which he was conducting his business. The accused sent his reply alongwith copy of the licence etc. stating that, he was the proprietor of the said dairy known as M/s. Shetkari Seva Dugdhalaya.

After the said information was received on 13th May, 1981 in Proforma No. A, the Food Inspector sent detailed information to Pune Division along with the covering letter and the original, so also, the true copies of the documents for obtaining sanction to launch prosecution against the accused through proper channel. Further, the Food Inspector Mr. Karyappa was transferred to Solapur and one Mr. R. B. Shete. Food Inspector had resumed in his place. Mr. R. B. Shete, the Food Inspector, who is complainant in this case, was posted and took charge from Mr. Karyappa. On 12th August, 1981, the consent order from the Joint Commissioner, Pune Division, Pune, was received to launch prosecution against the accused. Accordingly, on 15th September, 1981, the complainant R. B. Shete, Food Inspector. Kolhapur filed complaint against the accused in the Court of the Judicial Magistrate, First Class, Kolhapur. On 16th September, 1981, he sent intimation to the Local Health Authority, Kolhapur as case was filed against the accused bearing C.C. No. 157 of 1981. Thereafter, the Local Health Authority, Kolhapur, sent the required notice under Section 13(2) of the Act by registered post acknowledgment due, alongwith copy of the report of the analysis by calling upon the accused to give information whether he intended to send the sample to Central Food Laboratory for the purpose of analysis, which was duly received by the accused.

3. The prosecution story further is that, after the complaint was filed by the complainant/Food Inspector in the Court, process came to be issued against the accused in pursuance to which, the accused appeared in the Court and furnished bail. Evidence of the complainant Mr. R. B. Shete and Mr. B. K. Karyappa, the Food Inspectors, before charge was recorded. Opportunity was given to the accused to cross-examine them. Thereaftercharge against the accused was framed for the offence under Section 7(i) punishable under Section 16(i)(a)(i) of the Act. When the charge was read over and explained to him in Marathi, the accused pleaded not guilty, and claimed to be tried. His defence was that of total denial. However, he contended by way of defence that the Food Inspector had not stirred the milk or had made the milk homogeneous before the sample was taken by him. It was further his case that no information to Local Health Authority about the sample, which was sent to the Public Analyst, was given. It was also further contended by him that notice under Section 13(2) of the Act was not served upon him as alleged by the prosecution.

4. The learned Judicial Magistrate, First Class, after hearing both the sides, came to the conclusion that the prosecution failed to prove that the milk was stirred and was made homogeneous before sample of milk was purchased from the accused by Karyappa, the Food Inspector. The learned Judicial Magistrate, First Class, also came to the conclusion after recording evidence and after hearing both the sides that the Food Inspector had not given proper intimation to the Local Health Authority, after one part of the sample was sent to the Public Analyst, Kolhapur about the same. The learned Magistrate also observed that the prosecution did not prove that notice under Section 13(2) of the Act was properly served upon the accused. He also gave a finding that the prosecution did not prove beyond reasonable doubt that the sample milk did not confirm to the standards of the buffalo milk as per Act and Rules made thereunder. Giving these findings, the Trial Court held that the accused has not committed any offence and acquitted him for the charges framed against him. Being aggrieved, the State has now approached this Court by way of filing Criminal Appeal under Section 378(1) of the Cr.P.C.

5. We have heard Ms. Kamat, the learned A.P.P., appearing for the Appellant-State. It is her contention, inter alia, that Trial Court had not appreciated the evidence in proper perspective. It was also contended that it was wrong on the part of the Trial Court to acquit the accused merely on the ground that the prosecution had not proved that the sample milk did not confirm to the standards of buffalo milk, without discussing that point in detail in the Judgment. It was contended by Ms. Kamat that the Trial Court erred in holding that the Food Inspector Mr. Karyappa had not stirred the buffalo milk and made it homogeneous before purchasing the sample from the Respondent, and acquitting the accused on that ground.

6. We have gone through the proceedings, including the report of the Public Analyst, the depositions of both the Food Inspectors and the impugned Judgment. We find no infirmity in the impugned Judgment.

7. The report of the Public Analyst (Exhibit 26) reveals that the milk fat contains to the extent of the panchnama (Exhibit 16) did not disclose that the sample milk purchased by P.W. 1 Karyappa was stirred and that, it was made homogeneous. The panch witness Mahadeo also did not support the prosecution story on this point. P.W. 1 Karyappa also stated in his cross-examination that there was no mention, either in the complaint or in the panchnama that he asked the Respondent/accused to give stirred milk, and that, thereafter, the sample milk was purchased by him from the accused. He also admitted that no such mention is thereabout the stirred milk in the complaint or in the panchnama that the milk was stirred and was made homogeneous after it was collected by him in the aluminum pot or in the aluminum can. P. W. 1, however, for the first time in the Court, deposed in his substantive evidence that the milk was stirred. However, the absence of mentioning the said fact in the panchnama or in the complaint, speaks volumes, and it has to be held and it was rightly held that this was an afterthought and an improvement of the prosecution case of P. W. 1. The Trial Court has rightly observed that, 'It is a matter of common knowledge that cream accumulates on the top of the milk and if the milk is not properly stirred when the sample is taken, it is bound to be deficient ingredients .......'. Thus, when the obviousconclusion is that sample was collected by the Food Inspector without milk being stirred, and without making it homogeneous, and when no such mention is there in the panchnama or in the complaint, his statement to that effect only in the Court for the first time, has got no credibility. The Trial Court was therefore right in coming to the conclusion that the prosecution has failed to prove that the milk was stirred and was made homogeneous before sample of milk was collected by the Food Inspector Mr. Karyappa from the accused.

In this context, we may refer to the decision of the Madras High Court in Natarajan v. State by Food Inspector, Tirunelveli Municipalities, and decision of the Punjab and Haryana Court in Hoshiar Singh v. State of Punjab.

In Madras case (supra), it was held that non-mentioning of the fact in the complaint, of stirring of milk in a clean vessel by the Food Inspector is of no consequence, when in his evidence he has categorically stated that before he purchased the milk it was thoroughly stirred, and that, the trial is not vitiated. On the contrary, in the Punjab and Haryana case (supra), it has been held that stirring of milk before taking sample is necessary; and not doing so vitiates the conviction.

We have carefully considered both the authorities, and we respectfully agree with the decision given by the Punjab and Haryana High Court (supra). There are proper manners and methods of taking a sample of say; curd or milk. As far as taking a sample of curd is concerned, the proper manner and method would be that the set curd should be divided vertically and the entire one compartment should be taken churned and divided into three parts. As far as taking of sample of milk is concerned, it goes without saying that the milk has to be homogeneous, and it cannot be homogeneous unless it is stirred. In our opinion, non-mentioning of the fact that while taking the sample of the milk, it was stirred and if it is not mentioned also in the panchnama, but it is stated by the witness in the Court for the first time, the witness should not be believed. In the present case at hand, the Food Inspector has admitted that no mention is made either in the complaint or in the panchnama that the milk was stirred before sample was taken. We disbelieve and disregard the statement made by the Food Inspector in the Court for the first time, and hold that the Trial Court was right in rejecting the prosecution case on this point to theeffect that before sample of milk was purchased by Mr. Karyappa from Respondent, the milk was not stirred and was not made homogeneous.

8. As far as giving of proper intimation to the Local Health Authority by the Food Inspector, after one part of the sample was sent to the Public Analyst, Kolhapur, is concerned, the complaint as well as evidence of P. W. 1 Mr. Karyappa is silent, and this silence is very vocal. This indeed was the mandatory requirement, of which breach was committed. Thus, there was non-compliance of Section 11(c)(i) of the Act which requires that one of the three samples should be sent to the Public Analyst, coupled with the requirement that the intimation should be sent to the Local Health Authority. Thus, on this point also, there is a failure on the part of the prosecution to establish that this mandatory requirement was complied with.

9. If one goes through the evidence of P.W. 2 R. B. Shete, Food Inspector, it will be seen that he nowhere spoke that the Local Health Authority had sent notice under Section 13(2) of the Act to the accused, from whom, sample of milk was taken immediately, after the institution of the prosecution. No doubt, prosecution produced one acknowledgment receipt Exhibit 45, to show that the Local Health Authority had forwarded copy of the report to the Analyst alongwith Notice under Section 13(2) of the Act, intimating the Criminal Case No. etc. However, it is pertinent to note that the acknowledgment receipt Exhibit 45 itself was not sufficient to come to the conclusion that such a notice alongwith the report of the Analyst was received by the accused properly. Especially, when the accused had categorically denied service of any such notice by the prosecution. Inspite of this, the prosecution did not bother to examine anyone from the Local Health Authority, to show that any such notice alongwith the Report was sent to the accused. Thus, the Trial Court rightly held that there was non-compliance of provisions of Section 13(2) of the Act.

10. Thus, after hearing Ms. Kamat, the learned A.P.P., appearing for the appellant, and after going through the evidence on record, we are of the considered view that the prosecution version is not believable, the oral testimony of P.W. 1 Mr. Karyappa is uncorroborated and there is no cogent and reliable evidence to conclude that the sample milk in question was taken by the Food Inspector, after preparing the panchnama on the spot, after completing necessary requirements in the presence of P.W. 3 Mahadeo. It is to be highlighted that the said panch Mahadeo (P.W. 3) has not at all supported the prosecution story. The complaint Exhibit 1 does not narrate as to exactly what requirements were complied by the Food Inspector at the time of sealing of sample bottles, when there is a complete silence on this aspect also.

Under these circumstances, the Trial Court rightly came to the conclusion that the prosecution had not established its case against the accused beyond reasonable doubt, and rightly acquitted him. We therefore find no substance in this Criminal Appeal, which deserves to be dismissed. Hence, the following order :

Criminal Appeal No. 222 of 1986 is dismissed.