( 1 ) HOW the lack of a little extra carefulness on the part of certain official of the Court of the Judicial Magistrate (First Class) at Vyara has proved a costly lapse for and a fatal blow to the prosecution is amply and eloquently demonstrated in this case.

( 2 ) THE judgment and order of acquittal passed by the learned Additional Sessions judge of Surat on 11th July 1984 in Criminal Appeal No. 76 of 1982 is under challenge in this appeal by leave of this Court under S. 378 of the Code of criminal Procedure, 1973 (the Code for brief ). Thereby the learned Additional sessions Judge accepted the appeal of respondent No. 1 herein against his conviction by the learned Judicial Magistrate (First Class) at Vyara of the offence punishable under S. 16 (1) (i) read with S. 7 (i) of the Prevention of Food Adulteration Act, 1954 (the Act for brief) by his judgment and order passed on 16th June 1982 in criminal Case No. 1236 of 1981. Thereby respondent No. 1 herein was sentenced to simple imprisonment for one month and fine of Rs. 500. 00 in default simple imprisonment for 15 days more for the offence proved against him.

( 3 ) IT is not necessary to set out in detail the facts giving rise to this appeal. It appears that the Sanitary Inspector in the Ukai Project area took sample of buffalo milk on 2nd May 1981 from respondent No. 1 herein and it was found to be adulterated by the Public Analyst. He thereupon lodged his complaint with respect to the offence stated to have been committed by respondent No. 1 under s. 16 (1) (i) read with S. 7 (i) of the Act. It came to be registered as Criminal case No. 1236 of 1981. It ended in conviction of respondent No. 1 of the aforesaid offence and sentence of simple imprisonment for one month and fine of Rs. 500/ - in default simple imprisonment for 15 days more. That aggrieved respondent no. 1 herein. He, therefore, carried the matter in appeal before the Sessions Court at Surat. It came to be registered as Criminal Case No 76 of 1982. It was assigned to the learned Additional Sessions Judge at Surat for hearing and disposal. It appears that in the Court of appeal on behalf of the prosecution an application for additional evidence was made for bringing on record certain additional materials. It came to be taken on record as Ex. 15 in the appellate proceeding. By his order passed therebelow on 8th December 1983, the learned Additional Sessions Judge accepted the application for additional evidence and remitted the matter to the trial Court for recording the additional evidence only on that point. Pursuant thereto, the matter went to the trial Court and additional evidence was recorded. Thereafter, by his judgment and order passed on 11th July 1987 in Appeal No. 76 of 1982, the learned Additional Sessions Judge accepted the appeal and acquitted respondent No. 1 herein of the offence of which he was convicted by the learned trial Magistrate. The aggrieved State Government has thereupon approached this court by leave of this Court and has invoked its appellate jurisdiction of this Court under S. 378 of the Code for questioning the correctness of the aforesaid appellate judgment and order of acquittal.

( 4 ) LEARNED Advocate Shri Adil Mehta for respondent No. 1 has raised a preliminary objection against maintainability of this appeal by submitting that the appeal would lie only at the instance of the complainant, namely, the concerned sanitary Inspector, and not at the instance of the State Government in view of Sec. 378 (4) of the Code. In support of his submission, he has relied on the ruling of the kerala High Court in the case of State of Kerala v. V. S. Raj and Anr. reported in 1985 (1) FAC 281. As against this, learned Additional Public Prosecutor Shri S. T. Mehta for the appellant-State has submitted that, in view of the scheme of Sec. 378 of the Code, the present appeal at the instance of the State Government is maintainable.

( 5 ) IN order to appreciate rival submissions urged