JUDGMENT

J.M.L. Sinha, J. - This appeal arises out of the judgement and order dated 5 of April, 1969 passed by a Magistrate, First Class, Meerut, acquitting the respondent of the offence u/S. 16 of the Prevention of Food Adulteration Act.

2. The facts leading to this appeal can briefly be stated as under

On 21st November, 1967 near about 12.30 O'clock noon Sri Vir Singh,(PW 1) Food Inspector, Municipal Board, Meerut collected sample of turmeric powder from the shop of the respondent. The formalities prescribed under the law were duly complied with. One part of the sample was sent to the Public Analyst who reported the sample to be adulterated. A complaint was therefore filed for the prosecution of the respondent under section 16 of the Act.

3. The respondent in his statement in the trial court admitted that the Food Inspector collected sample of turmeric powder from his shop. He however, pleaded that the turmeric powder was sold for being used as a medicine to the injuries and not as an edible stuff. He denied that he received any price for the sample.

4. In order to prove its case the pro- section examined Sir Vir Singh (PW 1) Food Inspector, Roop Kishore (PTY 2) and Matroo Lal (PTY 3). Roop Kishorc (PW- 2) was declared hostile by the prosecution and cross-examined. The other two witnesses supported the prosecution case on all material points.

5. The respondent did not examine any witness in his defence.

6. The trial court on a consideration of the evidence adduced in the case came to the conclusion that the charge framed against the respondent was not made out beyond reasonable doubt and, in the result acquitted him. Feeling aggrieved against it, the State of Uttar Pradesh has come up in appeal before this court.

7. 1 have heard learned counsel on either side and have also perused the record of the case.

8. On a persual of the judgement of the trial court I find that the prosecution case has been mainly rejected on three grounds namely :

(i) that out of the three witnesses examined on the side of prosecution, Roop Kishore (PW 2) did not support the case and was declared hostile and the evidence of Matroo Lal is inconsistent with the evidence of sri Vir Singh, Food Inspector (PW 1) ;

(ii) the discrepancy in the Public Analyst Report and the report of the Director, Central Food Laboratory, made it unsafe to place reliance on either of the two reports in order to conclude that the sample collected by the Food Inspector was adulterated.

(iii) that it was quite likely that the turmeric powder out of which the sample was collected was meant for external application and not for edible purpose.

9. Now, so far as the first reason as- signed by the learned Magistrate for discrediting the prosecution case is concerned, I find that it has no substance. Vir Singh (PW1) Food Inspector consistently supported the prosecution case. Matroo Lal (PW3) also made a statement in support of the prosecution case. The only inconsistency in his evidence and the evidence of the Food Inspector is A-8 that while according to the latter only 450 grams of turmeric powder was collected as sample, Matroo Lal (PW3) stated that the sample weighed 750 grams. The learned Magistrate missed to take notice of the fact that the sample in the instant case was collected on 21st November, 196, while Matroo Lal (PW3) was examined in the trial court on 26th December, 1969, i. e. after a lapse of more than two years. The discrepancy in the amount of weight of the sample could therefore be on account of lapse of memory. It could not be ignored that the collection of the sample of turmeric powder was admitted to the respondent himself. The discrepancy in the weight of the sample was therefore immaterial and should not have been attached any weight. No other infirmity has been pointed out by the learned Magistrate in the evidence of Matroo Lal (PW3). In my opinion Matroo Lal (PW3) was a quite reliable witness and the learned Magistrate rejected his evidence on wholly insufficien