JUDGMENT - S.M. HAJARNAVIS, J.:---This is an appeal under section 417 of the Code of Criminal Procedure, filed by the State against the judgment of the Presidency Magistrate, 7th Court, Dadar, Bombay, acquitting the respondent of the offence punishable under section 16(1)(a) of the Prevention of Food Adulteration Act. Food Inspector, Manohar Sawant (P.W. 2), visited the milk shop of accused on April 18, 1972 at about 11.45 a.m. He purchased from him 700 millilitres of buffalos boiled milk for the purpose of analysis. He gave intimation to the respondent for that purpose and paid the purchase price. The respondent passed a receipt for the same. The milk was than divided by the Food Inspector into three equal parts and put into three separate dry and clean bottles which were packed, labelled and sealed as prescribed by the rules. One of the bottles was given to the respondent and the other was sent to the Public Analyst, Bombay, and the third he kept with himself for production in the Court. The report of the Public Analyst disclosed that the sample contains 11.2% fat and solid-not-fat (SNF) was 8%. The variation in fat may be from 6 to 8% in general. The Public Analyst also reported that the sample contains 11.1% extraneous water. He, therefore, gave the opinion that the sample was adulterated as defined under section 2(i)(a) of the Prevention of Food Alteration Act. After obtaining the sanction the respondent was prosecuted before the Presidency Magistrate, 7th Court, Dadar, Bombay. A charge under section 16(1)(a) of the Prevention of Food Adulteration Act was framed and was explained to the accused who pleaded not guilty and claimed to be tried. The prosecution examined only two witnesses namely the panch witness Manohar Ramchandra Haldankar and the Food Inspector Manohar Ratan Sawant. The panch turned hostile and he was cross-examined on behalf of the prosecution. The accused was examined under section 342 of the Code of Criminal Procedure after the prosecution evidence was over. He stated that he had not committed any offence and he had sold the cows milk to the Food Inspector and that the case against him was false. The panch turned hostile and he was cross-examined on behalf of the prosecution. The accused was examined under section 342 of the Code of Criminal Procedure after the prosecution evidence was over. He stated that he had not committed any offence and he had sold the cows milk to the Food Inspector and that the case against him was false. The learned Magistrate after taking all the material into consideration and after referring to the decision in (B.A. Samant v. The State of Maharashtra)1, 70 Bom.L.R. 794 observed that the Food Inspector did not care to follow the mandatory provisions of the Act and came to the conclusion that it was doubtful whether the Food Inspector purchased the milk in question from the accused and that he had divided it in the presence of the panch and he, therefore, held that the prosecution case is not free from doubt and the accused must be given benefit for the same. It is against this judgment the present appeal has been filed by the State. When this matter came before Tulzapurkar, J., on 24th March, 1975, the Counsel for respondent invited his attention to a decision of Allahabad High Court case in (Sultan Shah v. State of Uttar Pradesh)2, Cri. Rev. No. 579, dt. 10-4-73 Alld. He urged that on analysis of the sample the Public Analyst had reported that the fat contents of buffalos boiled milk was 11.2% and solid-not-fat contents were 8%. According to the standard fixed under Rule 5-A. 11.01.11 of the Prevention of Food Adulteration Rules, the fat contents of such milk in the State of Maharashtra should be 6% and solid-non-fat contents should be 9%. He submitted that the fat contents were more by 5.2% whereas the solid-non-fat contents were 1% less than the standard and, therefore, the Public Analysts opinion that the sample of buffalos boiled milk contained extraneous water to the tune of 11.1% could not be accepted. According to him, if the fat contents were more than the standard prescribed the fact that solid-non-fat contents were a little less than the standard was no indication that there was an addition of extraneous water to the milk and the sample could not be regarded as adulterated-Tulzapurkar, J. observed : "Since this was the principal point which Mr. Sewakramani urged before me on the basis of which he wanted to sustain the order of acquittal. Sewakramani urged before me on the basis of which he wanted to sustain the order of acquittal. I think in the interest of justice it is necessary to gave the evidence of the Public Analyst on record. I, therefore, remand the case back to the learned Magistrate with a direction that the evidence of the Public Analyst should be recorded in the case. After his evidence is recorded, the same should be certified to this Court along with the rest of the record, within two months from the receipt of the record, by the learned Magistrate" Shri Parkar, the learned P.P. also drawn my attention to the decision of Supreme Court in (Babulal Hargovindas v. State of Gujarat)3, A.I.R. 1971 S.C. 1277 where the Supreme Court has observed : "It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corporation. He is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness under section 63 of the Evidence Act to prove the execution of the will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most, courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows". It is not necessary for the purpose of this appeal to discuss the evidence of the Food Inspector. I proceed on the basis that he has followed the procedure prescribed in taking the sample as in my opinion, the acquittal can be sustained on the point which Sewakramani the learned Counsel for the appellant has pressed before Tulzapurka, J., and again before me. It is an admitted fact that the Food Inspector purchased buffalos boiled milk from a milk shop at about 11.35 a.m. It is well known that when milk is boiled the fat contents in the milk will collect at top of the milk. The Food Inspector has not stated that when he took the sample of the milk, he has stirred the milk and tried to take the representative sample of the milk. The Food Inspector has not stated that when he took the sample of the milk, he has stirred the milk and tried to take the representative sample of the milk. It may be that he may have taken sample from the top of the milk from the accused and that may account for the higher percentage of the fat contents. The Public Analyst has himself stated that he has determined the total solids not fats on the basis of specified gravity and fat. He stated that five tests were carried out in this case. These five tests were (1) Specific Gravity (2) Total solids (3) Fat (4) Non-Fat-Solids (SNF) (5) Preservative. All these tests were taken in chronological order. Specific gravity was found by Lactometer. The temperature of milk was 290 centigrade. He has stated that he took room temperature as temperature of the milk, and that analysis took place between 11 to 5 p.m. From 11 a.m. to 5 p.m. room temperature was taken as 29°. He admitted that temperature varies to the extent of about 1° between 11 a.m. to 5 p.m. In order to arrive correct lactometer reading oral calculations were required. He said that he had special specific gravity bottle but he did not use them. The lactometer which was used by him was marked for 0 to 60 degrees centigrade. 29° centigrade will be about 85° fahreineight. He had correct those readings and applied corrections for those readings. He stated that it was not necessary that the temperature of milk should be brought near about 60°F. in order to have correct reading of Lactometer. He further stated, "for every 60°F. difference in temperature between 60°F., and room temperature i.e. milk temperature, one degree lactometer correction was applied which was plus or minus as the case may be". He agreed that, "The Chemical Analysis of Foods" by David Pearson is an authority book on the subject. He agreed that "For Lactometer which are calibrated at 60°F., a correction of 0.11 is applied for each 1°F., above and vice versa. But he has applied a correction of + 0.16 in this case because it was a buffalos milk. He could not show any authority for what he did but he stated that he had applied that correction on the basis of his practical experience. But he has applied a correction of + 0.16 in this case because it was a buffalos milk. He could not show any authority for what he did but he stated that he had applied that correction on the basis of his practical experience. He admitted that as large corrections and to produce errors it was preferable to bring the milk as near as 60°F., as possible before taking the reading. In this case he did not try to bring the temperature of milk from 84°F. to near 60°F. He further admitted that the change in degree would lead to different result in respect of specific gravity. He agreed that specific gravity played an important part in determining the quality of milk, therefore, error in specific gravity would lead to erronious result. He stated that he had taken total solid from specific gravity, and fat. From total solids he deducted fats and remainder was termed as SNF (Solid Non Fat). From the deficiency in SNF he came to the conclusion that extraneous water was present in the sample. By applying freezing point test presence of extraneous water could be ascertained without determination of fat and SNF. In this case total solids were 19.2%. According to Rules, minimum 15% total solids are required in buffalos milk i.e. 9% SNF + 6% fat. Fat percentage was determined first and then it was deducted from total solids to arrive at SNF. In determining fat he had followed Gerber Method. He agreed that Rose Gotlief, was more accurate method than Gerber Method. The fat contents in the said sample was 11.2%. The standard fixed under the rules for buffalos milk for fat is 6%. The fat percentage in milk varied according to the breed of buffalo. It also depends upon lactation period and also upon interval of milking period. The variation may be from 6 to 8% in general. He stated that the sample for analysis should be representative of bulk. If it was not representative character, it would not be a proper sample for analysis. The result may or may not, therefore, show whether the milk was adulterated. Under the circumstance it cannot be said that the milk analysed was representative in character of the milk that was stored by the respondent for the purpose of sale. If it was not representative character, it would not be a proper sample for analysis. The result may or may not, therefore, show whether the milk was adulterated. Under the circumstance it cannot be said that the milk analysed was representative in character of the milk that was stored by the respondent for the purpose of sale. That being so, the learned Magistrate was justified in saying that the prosecution is not entitled to say that to respondent had stored adulterated milk in his shop for sale. The acquittal is therefore, proper on this ground. I do not think that this is a fit case for an interference. I confirm the order of acquittal passed by Court and dismiss the appeal filed by the State. -----