The court held that a sample of milk collected for analysis under the Prevention of Food Adulteration Act, 1954 must be representative and that the sanction for prosecution must be granted with proper application of mind by the sanctioning authority.

J.G. Chitre, J.

1. The petitioner is hereby assailing the correctness, propriety and legality of the order of conviction and sentence which has been passed by the J.M.F.C. Sarangpur in Cr. Case No. 682/88, wherein, the petitioner was convicted for an offence punishable under Section 16(1)(A)(i) read with Section 7(1) of Prevention of Food Adulteration Act, 1954 (for short 'the Act, 1954').

2. The prosecution case in brief is that, on 18-5-1988 at about 8.15 A.M. or so, Food Inspector Rijwi was present at Sarangpur Bus Stand, where he saw the petitioner holding two cans containing milk. The Food Inspector Rijwi informed the petitioner that he intended to purchase the said milk for the purpose of sending it to Public Analyst for analysis and, thereafter, purchased 750 Ml. of milk by making necessary payment in money. The said milk was divided in 3 separate samples by collecting those samples in clean, dry glass jars and 20 drops of formalin were added in it. Those glass jars were, thereafter, packed, sealed by using the thread. The seals were affixed on it and the samples were forwarded to the office of Public Analyst for analysis. The Public Analyst after analysing the same, opined that the said sample was containing fat to the extent of 5.1% solids not fat 7.14% and thus, opined that the said milk was adulterated.

3. After appreciating the evidence on record, the learned Magistrate held that the prosecution had proved the charge levelled against the petitioner for commission of the offence mentioned above. He passed the order of conviction and sentence against him as mentioned in the judgment. The learned A.S.J. heard the appeal against it and affirmed the order of conviction and sentence and that is being assailed by this revision petition by the petitioner in this Court.

4. Shri Sharma appearing for petitioner submitted that the sample which was sent to Public Analyst did not present a representative sample because before collecting the samples, the milk in the can was not stirred. It is his submission that on account of such non-stirring of the milk, the sample which was sent to the Public Analyst did not represent the homogenousness of the milk, which was stored in the milk can. Shri Verma submitted that the sample was divided and, therefore, the sample was the representative one of the milk which was stored in the can.

5. It is a matter of experience and accepted scientifically that the fat globules float at the surface when the milk is stored in an utensil. When the sample is to be taken or drawn of such milk, the entire milk has to be stirred so as to maintain homogeniosity of the entire milk. Such process was not followed by the Food Inspector, while collecting samples and, therefore, the report of the Public Analyst cannot be treated to be the legal and acceptable evidence for the purpose of coming to a conclusion that the petitioner had sold adulterated milk to Food Inspector Rijwi.

6. Shri Sharma further pointed out that the evidence on record does not prove that the seals, which were affixed on the sample bottles were desiferable and, therefore, the Public Analyst had the opportunity of tallying the seal, which were affixed on the sample bottle with specimen of the seal which according to the prosecution case was sent to Public Analyst separately by registered post. The specimen of the sample of the seal has to be sent separately by registered post not only that, but the seal which has been impressed on the forwarding letter has to be also desiferable. In the present case, nothing can be read out from the seal, which is bearing on the forwarding letter. If that was so, it is a matter of suspicion as to what in fact has been compared by the Public Analyst, when the analysis was done. It is pertinent to note at this juncture that, there is variance in the reports of the Public Analyst and the Central Food Laboratory. That also creates a dent about the credibility of the reports and the homogeniosity and representative