JUDGMENT

Chaitali Chatterjee (Das), J.—The instant criminal revisional application has been filed challenging the judgment and order dated September 22, 2004 passed by the learned Additional Sessions Judge, 1st Court, Nadia, Krishnagar, affirming the judgment and order dated March 24, 2000 passed by the learned Chief Judicial Magistrate, Nadia, in case no.735C of 1997 under Sections 16(1)(a)(i) and 7(1) of the Prevention of Food Adulteration (PFA) Act.

2. The prosecution case in a nutshell is that on May 16, 1997, the Sub Divisional Food Inspector, Krishnagar Sadar Sub Division, Shri Debasish Roy, visited the sweetmeat shop of the present petitioner and found that the petitioner has stored 8 kg. of Dahi (curd) for sale in several earthen pots lying in the shop. The said Food Inspector purchased 600 gms. of Dahi under proper receipt and thereafter, took one part of the sample and sent the same to the Public Analyst, Nadia, for analysis and opinion after observance of all the legal formalities. The other two parts of the sample were sent to the local (Health) authority, Sadar Sub Division, Nadia, as per the provisions of PFA, Act, 1976.

3. On the basis of the report of the Public Analyst, Nadia, and after getting sanction from the higher authority, a complaint was lodged before the learned Chief Judicial Magistrate, Nadia, against the present petitioner which was registered as Case No.735C of 1997. The learned Magistrate took cognizance and directed to issue process. After appearance before the learned Magistrate, charge was framed under Sections 19(1)(a)(i) and 7(1) of the PFA Act against the present petitioner which was duly read over and explained to him and since he pleaded not guilty and claimed to be tried and, accordingly, the trial commenced.

4. In order to bring home the charges, the prosecution examined as many as two witnesses, one is the complainant and the other is a staff of the complainant’s office. None was examined by the defence.

5. The learned Chief Judicial Magistrate after analyzing the evidence and considering the entire facts and circumstances of the case, passed an order of conviction on March 24, 2000 under Sections 16(i)(a)(i) and 7(1) of the PFA Act and sentenced the present petitioner to suffer imprisonment for six months and to pay fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment for another fifteen days.

6. Assailing the said order, a criminal appeal was filed before the learned District and Sessions Judge, Nadia at Krishnagar, and the learned court upon hearing all the parties, affirmed the order of conviction passed by the learned Chief Judicial Magistrate. Hence, this revisional application has been filed before this Court.

7. The learned Senior Advocate, representing the petitioner, argued that the court of Magistrate as well as the learned appellate Court failed to take into account that no independent seizure list witness was examined and it is hit by Section 10(7) of the PFA Act as well as Section 100(4) of the Code of Criminal Procedure. It is the contention of the learned Senior Advocate that there was no answer given by the prosecution as to whether the sample so collected was from one pot or from all. No inference regarding adulteration of the food can be drawn if the sample was taken from all the pitchers where the food was stored. It is the further contention that ultimately the report of the analyst was that the Dahi was of low fat category and was thereby adulterated. But no such report was submitted whether any harmful ingredient was mixed and the low quantity of fat in the curd depends on the milk which was used to prepare the curd. It is further contended that low fat can never be spurious and be called as adulterated. The further argument advanced is that the possibility of losing fat from the collected Dahi of 600 gms. by the Food Inspector cannot be ruled out and during the process of churning by the Food Inspector before or after mixing the Farmolin, it ha