The court is not bound by the opinion of the Public Analyst or the Director of Central Food Laboratory and can reach its own finding on the issue of adulteration based on the evidence before it.

( 1 ) DEPARTING from the normal procedure in dealing with Criminal Revision Petitions at the admission stage I have heard the counsel in detail.

( 2 ) THE first contention raised by him is that the conviction of the petitioner by the courts below under the Prevention of Food Adulteration Act is illegal for the reason that the quantity of turmeric powder in fact purchased was not 450 grams but 400 grams. The argument proceeds to assert that in case it is found that 400 grams had been purchased then dividing the sample into three parts the requisite quantity meant for analysis could not have been furnished by the Food Inspector either to the public Analyst or the Director of Central Food Laboratory, Calcutta. I have seen Exhibit P. C. that document came into being at the actual time of purchase. It is specifically stated therein that the quantity purchased was 450 grams. While making the purchase the Food Inspector H. C. Saini allowed the present petitioner to write anything he wanted by way of protest on document Exhibit P. C. The only protest recorded was to the effect that the petitioner was the servant and not the proprietor. If instead of 450 grams of Haldi (turmeric powder) 400 grams had been purchased there was an occasion for the petitioner to write on the face of Exhibit P. C. that what was stated in the body of the document regarding the quantity purchased was incorrect and that in fact he had sold 400 grams of Haldi.

( 3 ) I have also gone through the evidence of Public Witness s. 1 and 4, which has been read out to me by the learned counsel. Public Witness 1 H. C. Saini was the Food Inspector, who lifted the sample. He stated in his examination- in-chief that he had purchased 450 grams of Haldi (turmeric powder ). It is significant that he was not at all cross-examined and it was never suggested to him that the purchase made by him from the petitioner in the presence of Public Witness 4 Balwant Singh was of a quantity of 400 grams of Haldi (turmeric powder) and not of 450 grams.

( 4 ) SECTION 138 in the Evidence Act permits cross-examination. It has been held by courts that where a particular material assertion is made in examination-in-chief and the witness is not cross-examined in respect of that assertion then it will be taken that the party affected admits the truth of that assertion. The provisions of section 138 came in for interpretation before the Patna High Court in Karnidan Sarda and another v. Sailaja Kanta Mitra, AIR 1940 Patna 683 (1), and the Punjab High Court in Ganpat Ram Khosia v. Kishen Lal and another, 1958 P. L. R- 349 (2 ). Considering the law laid down in those cases I am of the view that where cross-examination is not directed against the positive material assertion affecting the opposite party, it would amount to the affected party accepting the truthfulness of that assertion unless there is some exceptional proof to the contrary. It is no doubt correct that in the statement of Public Witness 4. Balwant Singh it is stated that 400 grams of turmeric powder were purchased. That statement by the witness who did not make the actual purchase although he, according to his evidence, was present there, does not dislodge the documentary evidence furnished by Exhibit P. C. , which is supported by the deposition of Public Witness I H. C. Sarin, who actually made the purchase and whose deposition was never questioned by putting to him the assertion that he had purchased only 400 grams of turmeric powder. I do not find that the findings of the courts below deserve to be disturbed on account of the first contention raised before me that the quantity purchased was not 450 grams.

( 5 ) THE second contention is that the report by the Director of Central Food Laboratory, Calcutta, having superseded the report of the public Analyst and he having not stated in so many words in his report that the turmeric powder, the sample whereof he had examined, was not fit for human consumption, the courts ar