Judgment

MISRA, J. :- In this appeal by special leave the narrow question that this Court proposes to examine is whether the High Court was right in holding that churning of the curd of which a sample was taken, if done with hand, was done in a proper manner so as to make the sample homogeneous and representative.

2. The few relevant facts are that Shri G. A. Parikh, Food Inspector attached to Baroda Municipal Corporation visited the shop of the respondent No. 1 accused Madanlal Ramlal Sharma on Sept. 4, 1976 around 7.20 a. m. He purchased curd from a container having 2 1/2 Kg. of curd for the purpose of analysis. There was a board hanging on the outer side of the container that the curd is prepared from cows milk. The Food Inspector purchased 600 grams of curd and after churning the curd, he divided it in three equal parts and prepared three separate samples, each kept in a separate bottle. After various formalities including obtaining the sanction for prosecuting the respondent-accused, a complaint was filed in the Court of the learned Judicial Magistrate, First Class (Municipality) at Baroda. In the course of trial at the request of the accused the third sample was sent to the Central Food Laboratory for analysis and report. It may also be mentioned that the Food Inspector himself had sent one sample to the public analyst attached to the laboratory set up by the Municipal Corporation, for analysis of article of food. The report of the public analyst shows that the sample of curd contained 3% milk fat and 11.7% milk solid non-fat. On the other hand, the report of the Central Food Laboratory, Calcutta (Ext. 15) shows that milk fat was 2.9% and milk solid non-fat 10.8%. It was opined that the sample of curd was adulterated. The learned Magistrate held that the curd in question was prepared out of cows milk, that it did not conform to the prescribed standard and reached the conclusion that the prosecution case was established beyond a shadow of reasonable doubt. Consequently, the learned Magistrate convicted the first respondent-accused for an offence under Section 7 (1) read with S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 and sentenced him to suffer rigorous imprisonment for four months and to pay fine of Rs. 500/- in default to suffer further rigorous imprisonment for two months.

3. The first respondent-accused preferred Criminal Appeal No. 46 of 1977 in the Court of Session at Baroda. The learned Additional Sessions Judge who heard the appeal, inter alia, held that proper churning of the sample having not been done, the sample cannot be said to be homogeneous and representative of the curd in question so as to arrive at a proper conclusion on analysis of the sample and on the short ground acquitted the accused.

4. Two appeals were preferred against the judgment of the learned Sessions Judge. Criminal Appeal No. 218 of 1978 was preferred by the State of Gujarat and Criminal Appeal No. 603 of 1978 was preferred by the complainant Food Inspector. A Division Bench of the Gujarat High Court disposed of both the appeals by a common judgment. The High Court affirmed the acquittal observing that the conclusion is inescapable that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves. Hence this appeal by special leave by the complainant Food Inspector.

5. The sample of curd was taken on Sept. 4, 1976. Six years have passed and two Courts have concurred in acquitting the accused, namely, the Sessions Judge and the High Court. We are, therefore, reluctant to interfere with the order of acquittal, But the learned counsel Mr. M. C. Bhandare for the appellant; Food Inspector and the learned counsel Mr. Nain appearing for the State of Gujarat second respondent supporting the appellant, urged that irregularity in churning the curd before sampling the same in bottles, as found by the High Court, if allowed t