JUDGMENT - S.P. KURDUKAR, J.:---This Criminal Appeal is filed by the State of Maharashtra, challenging the order of acquittal dated October 16, 1976, passed by the Additional Sessions Judge, Jalgaon, in Criminal Appeal No. 61 of 1976. 2. The prosecution case may be briefly summarised as follows :--- The accused No. 1 to 4 are the partners, running a hotel business in the name and style Messrs. Laxmi Vilas Hotel at Jalgaon. This partnership concern was the accused No. 5 in this criminal case. It is not in dispute that the accused No. 5 has a business of selling food articles. On August 14, 1973, the complainant G.N. Choudhari, Food Inspector, Jalgaon, visited the premises of the Laxmi Vilas Hotel where the accused No. 1-Respondent No. 1 was supervising the business. The Food Inspector disclosed his identity and expressed suspicion about the Dahi stored in the premises for sale and offered to purchase it as a sample for analysis. It is the case of the prosecution that the complainant purchased 600 gms. of Dahi (Curd) in the presence of the panch witness Dinkar Patil and Madhukar Sonar. He divided the sample in three equal parts and filled in the same in three separate, clean dry and empty bottles. He also added 16.00 Ozs. of formalin to each of the bottles. After following the necessary procedure in regard to the sealing etc. , the Food Inspector sent one sample to the public analyst for necessary analysis. The report of the Public Analyst shows that the sample sent for analysis was sub-standard and not in conformity with the Rules framed under the Prevention of Food Adulteration Rules. After obtaining the necessary sanction, the present complaint came to be filed against all the accused persons. Original accused Nos. 3 and 4 were discharged by the learned trial Magistrate himself. So far as the defence of the accused No. 1 is concerned, he contends that at the relevant time, he used to supervise the business. According to him the curd sold was pure. At time of taking the sample, according to the accused No. 1, a little quantity of it spilled on the ground and he did not permit the Food Inspector to collect the same in the bottle. According to him, the fat is found to have spilled while filling in the bottles and that must have caused deficiency in the percentage. At time of taking the sample, according to the accused No. 1, a little quantity of it spilled on the ground and he did not permit the Food Inspector to collect the same in the bottle. According to him, the fat is found to have spilled while filling in the bottles and that must have caused deficiency in the percentage. The accused No. 2 denied that he has committed any offence. According to him, he had no concern with the collection of the samples in question. Accused No. 2 further pleaded that at the relevant time, he was in his village in Gujarat State. He further pleaded that he is not answerable to the present charge. 3. The trial Magistrate, on the appreciation of oral and documentary evidence on the record, convicted the respondent No. 1- accused No. 1 for the offence punishable under section 7(i) read with section 16(1)(a) of the Prevention of Food Adulteration Act, and sentenced him to suffer R.I. for six months and also to pay a fine of Rs. 500/- and in default of payment of fine , R.I, for one month. The learned trial Magistrate also convicted the accused No. 2-respondent No. 2 for an offence punishable under section 7(i) read with section 16(1)(a) and also under section 17 of the Prevention of Food Adulteration Act and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 500/- and in defaults of payment of fine, further R.I. for one month. The respondent No. 3-accused No. 5 M/s. Laxmi Vilas Hotel, a firm, was also convicted for the offence under section 7(1) read with section 16(1)(a) as also section 17 of the Prevention of Food Adulteration Act, and sentenced to pay a fine of Rs. 500/-. 4. The respondents, aggrieved by this order of conviction and sentence, preferred an appeal to the Court of Additional Sessions Judge at Jalgaon. The learned Additional Sessions Judge, by his judgment and order dated October 16, 1976, in Criminal No. 61 of 1976 allowed the appeal, set aside the convictions and sentences of the respondents-accused, and acquitted them for the offences with which they were charged. Aggrieved by this order of acquittal, the State of Maharashtra has preferred this appeal to this Court. 5. Mr. Aggrieved by this order of acquittal, the State of Maharashtra has preferred this appeal to this Court. 5. Mr. Gangakhedkar, the learned Public Prosecutor, appearing for the State, strongly urged that the order of acquittal is based on mere surmises and conjectures and the same should be set aside and the order of the learned trial-Magistrate may be restored. 6. The main question in this appeal that arises for my considerations is whether there is sufficient compliance of mandatory provisions of section 11(1)(b) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act"). Admittedly, the alleged offence has taken place on August 14, 1973. The provisions of section 11(1)(b) of the Act as they stood on that date are as follows: "Section 11. Procedure to be followed by Food Inspectors. (1) When a Food Inspector takes a sample of food for analysis he shall xx xx xx (b) except in special cases provided by Rules under this Act separate the samples then and there into three parts and seal or fasten up each part in such a manner as its nature permits, and (c) (i) deliver one of the parts to the person from whom the sample has been taken; (ii) send another part for analysis to the Public Analyst; and (iii) return the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under sub-section (2) of section 13, as the case may be." 7. The evidence of the Food Inspector clearly shows that he has not purchased 600 Gms. of Dahi from the Laxmi Vilas Hotel. In his cross-examination, he has admitted that there were 20 glasses in which the curd was stored, out of which he had taken 6 glasses containing 100 gms, of curd. He further admits that it was not actually weighed. The evidence of the panch witness Dinkar Patil P.W. 2, shows that the Food Inspector was taking each glass and then poring each glass in the bottle. While this curd was being poured in the bottle, three to four tea-spoon full of curds had spilled on the ground. He further admitted that he accused did not allow the complaint-Food Inspector to collect this on the grounds that the place where it was spilled, was dirty and the analysis will not give the correct results. While this curd was being poured in the bottle, three to four tea-spoon full of curds had spilled on the ground. He further admitted that he accused did not allow the complaint-Food Inspector to collect this on the grounds that the place where it was spilled, was dirty and the analysis will not give the correct results. This witness has further admitted that there was a thick layer in all those glasses. It is not the positive case of the Food Inspector that he had taken layer or Malai which was found sticking to the glass after he has pored the cured in the bottles. From this evidence therefore, it is clear that the Food Inspector has failed to comply with the mandatory provisions of Clause (b) of sub-section (1) of section 11 of the Act. What is required to be purchased by the Food Inspector while taking the sample is that he must together purchase a total quantity of 600 gms and then he must separate the sample then and there into three equal parts. In this case, admittedly, the Food Inspector has not purchased the 600 gms. of curds but on the contrary he has taken each glass and poured it in the bottle. In my opinion, the learned Additional Sessions Judge is right in holding that the Food Inspector has not complied with the mandatory requirement of Clause (b) of sub-section (1) section 11 of the Act. In this context, it would be very material to note the defence of the accused also. According to the accused, the curd in the six glasses usually approximately 600 gms He has also stated that the Food Inspector used to pour each glass in the bottle. The layer of the fat is always on the surface of the curd substance in the glass. While pouring it in the bottle, the fat substance was spilled on the table. The accused No. 1 did not permit the Food Inspector to fill in that spilled curd substance in the bottle. It is thus clear that the defence of the accused is consistent with the fact that the Food Inspector has not in all purchased 600 gms. of curd from the accused in one lot and then divided it into three equal parts. It is thus clear that the defence of the accused is consistent with the fact that the Food Inspector has not in all purchased 600 gms. of curd from the accused in one lot and then divided it into three equal parts. It is also further clear from the evidence of the panch witness Dinkar Patil is consistent with the defence of the accused that the fat substance of the curd in the glass was spilled while pouring the same in the bottle, and the accused did not permit the Food Inspector to collect and put into bottle. It is, therefore. Quite probable that the deficiency that is found in the report of the Public Analyst is because of the fat substance which was spilled on the table. But, however, in my opinion, even the evidence of the Food Inspector clearly goes to show that he has not complied with the provisions of Clause (b) of sub-section (1) of section 11 of the Act and on this ground alone the accused must-succeed. 8. Mr. Ganatra, the learned Counsel appearing on behalf of the accused strongly relied upon the judgment reported in 1978 U.C.R. (Bom) at page 38 (State of Maharashtra v. Mohanlal Hanumandas Vishnav and another)1, wherein, this Court has observed that it was incumbent upon the Food Inspector to take the whole sample of 600 gms. and then divided it into three equal parts. Mr. Ganatra also relied upon-another judgment reported in 1976 F.A.J. page 81 (Babulal v. State)2, in which the Madhya Pradesh High Court has also taken the view that when the Food Inspector takes sample of Food for analysis, he shall except in special cases provided by the Rules under the Act, sperate the sample then and there into three parts and mark and seal and fasten each part in such manner as its nature permits. The words used in sub-clause (b) are clear and suggestive of the fact that the Food Inspector should collect the whole bulk of the sample in one container and then it should be divided into three equal parts. In view of my this finding, I hold that the Food Inspector has not complied with the mandatory provisions required by Clause (b) of sub-section (1) of section 11 of the Act and the prosecution must therefore fail. 9. In the result, the appeal fails and the same is dismissed. In view of my this finding, I hold that the Food Inspector has not complied with the mandatory provisions required by Clause (b) of sub-section (1) of section 11 of the Act and the prosecution must therefore fail. 9. In the result, the appeal fails and the same is dismissed. The bail-bond to stand cancelled. -----