( 1 ) APPELLANT Rabari Teja Mohan has been convicted by the learned City Magistrate 6 Court Ahmedabad in Criminal Case No. 90 of 1966 for the offence punishable under sec. 16 (1) (b) of the Prevention of Food Adulteration Act 1954 (37 of 1954) which will hereafter be referred to as the Act. He has been sentenced by this Court to suffer rigorous imprisonment for six months and to a fine of Rs. 11 in default rigorous imprisonment for three months.

( 2 ) THE appellant-accused was charged with having on or about the 6 day of August 1965 at 5. 30 A. M. near Block No. 327 in Bapunagar Rakhial at Ahmedabad prevented Food Inspector Shri Mangulal C. Mehta from taking sample of milk from the appellant by throwing away the milk on the ground and thereby having committed an offence punishable under sec. 16 (1) (b) of the Act. The accused was tried on this charge which the learned City Magistrate has found to have been proved against him beyond reasonable doubt. It appears to be the prosecution case that on the morning of August 5 1965 at about 5. 20 A. M. Food Inspector Mehta accompanied by his peon P. W. 4 Mahmadmiya had gone to Bapunagar in Rakhial within the city of Ahmedabad. The accused was seen carrying two cans containing the milk with him on his cycle. He had measures with him. He was selling milk. The food Inspector called two panchas P. Ws. Vadilal and Ramkishan. The accused was then called but he did not come. The Food Inspector then went to him. He asked him about the quality and the rate of milk that he was selling. In reply the accused stated that it was cows milk. However he did not express his willingness to sell the milk. The Food Inspector then told him that he was the Food Inspector but the accused said that he wont sell the milk. The Food Inspector requested him to give the milk on payment of the price. However instead of giving the milk the accused threw away the milk. The Food Inspector then asked the name and the address of the accused. A panchnama was then drawn up which was read over to the panchas and was signed by the panchas. The Food Inspector who recorded the panchnama also signed it. The Food Inspector then drafted the complaint and obtained the necessary sanction to prosecute the accused. After obtaining the sanction he instituted the complaint against the accused. This in brief is the prosecution case as is revealed from the evidence of the Food Inspector P. W. No. 1 Mangulal Mehta Ex. 2. In support of his evidence panchnama Ex. 3 which was signed by the panchas in the presence of the Food Inspector was relied upon. The prosecution had also examined the two panch witness P. W. 2 Ramkishan Mulchand Ex. 8 and P. W. 3 Vadilal Mohanlal Ex. 9. Although the panchas admitted their presence and the factum of the panchnama having been signed by them they did not support the prosecution case in all aspects and it appears that they were treated as hostile witnesses. The prosecution also relied upon the evidence of the peon P. W. 4 Mahmadmiya Mohmad Afzal Ex. 10 who supported the evidence of the Food Inspector. On this evidence the learned City Magistrate has accepted the prosecution case as against the accused and convicted and sentenced him as aforesaid.

( 3 ) IN the case which was tried as a warrant case and where there was a de-novo trial because of the another Magistrate having taken office during the pendency of the case the accused had pleaded not guilty to the charge. In his statement recorded under sec. 342 of the Code of Criminal Procedure in answer to the Courts question:-YOU heard the entire evidence of the prosecution. Do you wish to say anything ?the accused replied:- i am not selling milk at all. I maintain only cows and buffaloes. I do not know anything in the matter. In answer to the second question viz. The panch witness Ramkishan states that he had seen you on 5-8-65 at about 5-30 A. M. near Block No. 327 at Bapunagar. Do you wish to say anything to that ?the answer was:- no Sir. In an