If admissible as substantive evidence without evidence aluende.

M.S.PATIL, J.:

The Food Inspector of the City of Mangalore, Dakshina Kannada, has filed this appeal on special leave under Section 378(1) and (4) of the Criminal Procedure Code questioning the legality and correctness of the judgment and order of acquittal dated 18.2.1983 passed by the II Additional Chief Judicial Magistrate, Mangalore, in C.C. No. 22 of 1982, on his file, acquitting the respondent-accused of the charge of the offence of food adulteration punishable under Sections 7 read with 16(1)(a) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, levelled against him.

2. The accused A.G.Suvarna is alleged to be a proprietor of the shop named and styled as M/s. Shakthi Cream Parlour, manufacturing and selling ice cream for human consumption, situated at Jeppu Market, in Mangalore City. On 31.8.1981, at about 12 noon, according to the prosecution, the Food Inspector (P.W.1) visited the said shop of the accused and purchased nine cups (900 Grams) of mango ice cream for analysis and having paid its cost of Rs.10.80 ps. to the accused, obtained a receipt as per Ex.P-2 and in the presence of the accused and panch witness Narayana P.W. 2 sampled the ice cream so purchased as per the procedure prescribed and after adding 24 drops of formalin for each of the three sample packets as preservative, he packed and sealed the same under mahazer Ex.P-4 and issued notice in Form VI as per Ex.P-3 to the accused as provided under Sections 10 and 11 of the Act. He, thereafter, sent one of the three sample packets along with memorandum in Form VIII containing specimen seals as per Ex.P-5 to the public analyst, Bangalore, through railway parcel and he also sent the specimen seal separately along with a copy of the memorandum of the seal by remaining two sample packets along with a copy of the memorandum of specimen seals to the Local Health Authority.

On receipt of the report from the Public Analyst as per Ex.P-7 stating that the sample was adulterated, he placed all the relevant papers before the District Health Officer and having obtained sanction for prosecution as per Ex.P-9, on 8.2.1982, filed a complaint against the accused. On the same day, the Local Health Officer sent a copy of the report Ex.P-7 of the Public Analyst with a covering letter Ex.P-11 to the accused intimating him the result of the Public Analyst and to make an application within ten days before the Chief Judicial Magistrate to get analysed the sample packed, kept in his custody, by the Director General, Food Laboratory at Pune, if he so desired. Although the letter Ex.P-11 was delivered on him on 19.2.1982 (vide Ex.P-12 postal acknowledgement), he, it appears, did not avail of that option given to him. The learned Chief Judicial Magistrate recorded the evidence of the complainant (Food Inspector) and the pancha as P.Ws.1 and 2 respectively and on the close of the prosecution evidence also examined and recorded the statement of the accused as provided under Section 313, Criminal Procedure Code. Although the accused admitted his signature on the papers affixed on the packets of sample and of his having also received the copy of the report of the Public Analyst with covering letter Ex.P-11 and the Postal acknowledgement Ex.P-12, but denied either he was proprietor of the shop or he was selling ice cream or he was present in the shop on 31.8.1981. He also denied P.W.1 having purchased ice cream from him. The learned Chief Judicial Magistrate, however, relying upon the evidence of P.W.1 the Food Inspector partly corroborated by the evidence of P.W.2, held that the accused was the proprietor of the shop in question and P.W.1 did visit the shop on 31.8.1981 and purchased the ice cream for analysis. He also noticed that the Public Analyst had in his report stated that the sample contained 32.84% solid, 3.8% milk fat and 4.61% proteins and the total solids and milk fat being less than the prescribed standard, the sample was adulterated, b