JUDGMENT C.D. Parekh, J. - This revision arising out of the order dated March 31, 1970 passed by Sri A.P. Agarwal, Civil and Sessions Judge, Agra. The applicant has been found guilty for an offence punishable under Section 7 (1) (a) (i) read with Section 10 of the Prevention of Food Adulteration Act, 1954 and has been sentenced to six months R.I. and a fine of Rs. 1,000/- and in default of payment of fine to undergo further six months R.I. The applicant preferred appeal against his conviction and sentence and the Civil and Sessions Judge, who heard and decided the appeal by his order dated March 31, 1970, dismissed the appeal but reduced the sentence to a fine of Rs. 500/- only, and in default of payment of fine the applicant has been made to undergo rigorous imprisonment for two months. With this modification in the sentence, the appeal, was dismissed and, therefore, this revision has been preferred before this court. 2. Briefly stated the facts of the case are that the Food Inspector, Sri B.S. Srivastava (who has been examined as a prosecution witness No. 1) on September 16, 1968, found the applicant selling milk at about 8 p.m. at the crossing of Peepal Mandi at Agra. The applicant gave out at the time of sale that he was selling mixed milk of buffaloe and cow in proportion of 60% cow milk and 40% buffaloe milk. The sample after having been taken was separated in three phials and each one of the phials was duly scaled by the Food Inspector and one of the phials was sent to the Public Analyst, Agra who by his report dated September 23, 1968 reported the following result of the milk. Fat 5.2% Non Fatty solid 6.8% Milk solid other than milk fat" 3. He expressed his opinion that the sample was deficient in non-fatty solid contains by about 22%. According to the Public Analyst no change has taken place in the contents of the milk which would have interfered with the analysis. He judged the sample on the basis of standard derived from the statutory standard for cow milk and buffalo milk mixed in the proportion of the specification as given out by the applicant. According to the Public Analyst no change has taken place in the contents of the milk which would have interfered with the analysis. He judged the sample on the basis of standard derived from the statutory standard for cow milk and buffalo milk mixed in the proportion of the specification as given out by the applicant. This report was signed on October 11, 1968 and on the basis of this Nagar Swastha Adhikari, Agra filed the complaint against the applicant treating the sample as adulterated. During the course of the trial the Magistrate questioned the applicant only with respect to the deficiency of non-fatty solid as stated in the report of the Public Analyst and he was asked to explain that the milk, which was taken from his possession and was sent to Public Analyst, was deficient by 22% in the non-fatty solid contents. The applicant denied the fact. Therefore, the applicant got the sample sent under the provisions of sub-section 2 of Section 13 of the Act to the Director of the Central Food Laboratory and the Director also examined the sample and his certificate is also on the record. By his certificate dated October 14, 1969 the Director has stated that the milk fat was 3.1%, milk solid non-fat 8.8%, starch and canesugar absent and formalin O. 1 ml. per 100 ml. of sample. He expressed his opinion that the sample of the milk was adulterated. 4. Learned counsel for the applicant submitted before me that in view of the certificate of the Director, Central Food Laboratory, the sample which had been taken from the possession of the applicant, was not deficient in milk solid and, therefore, the applicant is entitled to acquittal. I have gone through the charge framed against the applicant as well as questions put by the learned Magistrate. Learned Magistrate, on the basis of the fact stated in the report of the Public Analyst, framed charge for the deficiency of the milk solid and not about milk fat, and the milk solid, as it appears from the certificate of the Director, Central Food Laboratory was not deficient which the applicant is stated to have been found selling on the date aforesaid. About deficiency of the milk fat no question appears to have been put to the applicant nor was he charged for the same. About deficiency of the milk fat no question appears to have been put to the applicant nor was he charged for the same. In the circumstances there appears to be much force in the submission of the, learned counsel raised on behalf of the applicant. 5. Learned State counsel relied upon the opinion of the Director, Central Food Laboratory, who has expressed that the milk was adulterated. The percentage of the milk fat as given out by the Director, Central Food Laboratory, falls short to the prescribed standard. The contention of the state counsel is that the report of the director, Central Food Laboratory, under the provisions of sub-section 3 of Section 13 of the Act should supersede the report given by the Public Analyst as it is a document which is conclusive in evidence of the fact stated therein. The submission is that if the applicant has not been charged or questioned about the deficiency regarding the milk fat even then he can be found guilty and conviction may be maintained. 6. In my opinion, the learned State counsel is not correct, when the applicant was not charged for the offence, the facts as stated in the report of the Director may be correct but the evidence of the facts was not utilised nor the applicant was prosecuted by the Nagar Swastha Adhikari for deficiency of milk fat. It cannot, therefore, be said that the applicant may be held guilty for such an offence for which there was neither any complaint nor any charge framed against him. The certificate of the Director is conclusive of the facts stated therein but on the opinion of the Director the applicant was not examined. The applicant was not charged for selling adulterated milk for the deficiency of milk fat nor was he questioned about the same and to the prejudice of the applicant it will not be proper for this court to uphold the conviction and maintain the sentence awarded to him. 7. In the result, I allow the revision, set aside the conviction and sentence of the appellant. The fine, if paid shall be refunded to the applicant.