JUDGMENT - Puranik S.W. J.-The applicant was prosecuted by the Corporation of the City of Nagpur for an offence under section 7(i) read with section 16(1 )(a)(i) of the Prevention of Food Adulteration Act, vide Criminal Case No. 127/1977. Shri Nimgade, Judicial Magistrate, First Class (Corporation) Nagpur found the applicant guilty of the offence and sentenced him to suffer rigorous imprisonment for three months and a fine of Rs. 500, in default further rigorous imprisonment for one month. The applicant thereafter preferred Criminal Appeal No. 46/1980 before the Additional Sessions Judge, Nagpur, who con­firmed the conviction and sentence and dismissed the appeal. It is against these two concurrent findings of conviction and sentence that the applicant has moved this Court by this revision. 2. The case of the Food Inspector in the complaint was that the accused carries on business of milk vendor. That on 22-2-1977 the accused applicant was carrying two cans of milk on a bicycle in the city of Nagpur. The com­plainant had intercepted him at Wanjari Nagar and had taken milk sample from the cans of the applicant-accused. It was the case of the Food Inspector that he had followed the procedure as prescribed under the Food Adulteration Act and handed over one sample bottle to the applicant, and the other was sent to the Public Analyst along with the specimen seals etc., as prescribed. On receipt of the Public Analyst's report that the milk was adulterated, he secured sanction from the concerned authorities and filed the complaint. 3. After the charge sheet was filed the Food Inspector examined him­ self as P. W. I and one panch witness (P. W. 2) and produced the Public Analyst's report regarding the milk sample and closed the case. The defence of the accused was that he is not a milk dealer; that he was not taking milk for sale but was taking the milk for the birth day ceremony at his brother's place; He also contended that his right under section 13(2) of the Act was frustrated because the sample was allegedly taken on 22-2-1977 while the charge sheet was put up on 22-9-1977 i. e. more than six months after the date of sample.. He further submitted that the accused was served with summons on 23-4-1978 i. e. one year two months after the date of the sample. 4. He further submitted that the accused was served with summons on 23-4-1978 i. e. one year two months after the date of the sample. 4. The trial Court held that the panch witness was hostile, but he had signed the panchanama. He therefore, relied on the said panchanama and the testimony of the Food Inspector (P. W. 1) and the report of the Public Analyst and found the accused guilty of the offence and sentenced him as above. The lower appellate Court also confirmed the conviction and sentence relying on the same evidence. 5. Shri A. P. Moharil, the learned counsel for the applicant contended that the procedure requires that the sample should be taken in the presence of two independent panchas. One independent panch (P. W. 2) was examined but he did not support the prosecution case and was declared hostile. The said panch had stated that the sample was already taken and sealed when he arrived on the spot. Thus he did not witness the process of purchase of sample and sealing of the sample. Shri Moharil also submitted that the Prosecutor on behalf of the complainant merely filed a pursis Ex.. 42 giving up of the other panch on the ground that he appears to have been won over. According to him there was no independent witness examined by the prosecu­ tion, to establish the factum of taking samples from the applicant. 6. He submitteed that the sample was taken on 22-2-1977 while the char-gesheet was put up on 22-9-1977 i.e, more than six months after the date of the sample. He contended that a sample of milk even if collected in a clean and dry bottle and formalin was added to the same yet the said sample will get decomposed in six months time. In the instant case since the complaint itself was filed after six months, the applicant's right under section 13(2) of the Act to get the sample analysed by the Director of Central Food Laboratory, Mysore, was frustrated. He relied upon the ruling of this Court, (The State of Maharashtra v. Subhash Ramkrishna Uddappi)1 for this proposi­tion. He also contended that the complainant has failed to establish that the applicant was a dealer in milk inasmuch as the chandipatra has not been proved from chandiwala. He relied upon the ruling of this Court, (The State of Maharashtra v. Subhash Ramkrishna Uddappi)1 for this proposi­tion. He also contended that the complainant has failed to establish that the applicant was a dealer in milk inasmuch as the chandipatra has not been proved from chandiwala. The applicant was not carrying a measure for milk but it is for the first time that the Food Inspector stated in Court that the applicant was carrying a measure. The panchanama also does not disclose the same. For all these reasons, according to Shri Moharil, the applicant was entitled to be acquitted. 7. Shri A. A. Desai, Govt. Pleader and the Public Prosecutor supported the impugned orders and stated that both the Courts below have concurrently found the applicant guilty on the basis of evidence and this Court in its revisional jurisdiction should not assess the evidence afresh. He, therefore, submitted that the revision is liable to be dismissed. 8. No doubt it is true that in the revisional jurisdiction this Court will not ordinarily reassess the evidence, but when it is found from the perusal of of the judgment that the Courts below have accepted evidence which is not legally acceptable or has based his conviction on the facts which are not legally established or there is perverse appreciation of evidence which in its totality results in miscarriage of justice, the revisional powers are wide enough to interfere with the said concurrent findings in the interest of justice, 9. The present case discloses some interesting facts which taken together would clearly show that the findings of the Courts below have infact resulted in miscarriage of justice. 10. When a case depends on more or less technical evidence of collecting sample, forwarding it to a Public Analyst and depends entirely on the Public Analyst's report as an expert, it is all the more necessary for the complainant to establish with clear and cogent evidence the procedural formalities as prescribed under the Act. It is for these reasons that :the rules provide that the sample must be taken in presence of two independent panchas. In the case in hand, we find that only one panch as P. W. 2 has been examined who does not support the prosecution. He states that he arrived on the spot after the seizure and sealing of sample was already effected by the Food Inspector. In the case in hand, we find that only one panch as P. W. 2 has been examined who does not support the prosecution. He states that he arrived on the spot after the seizure and sealing of sample was already effected by the Food Inspector. Thus the panchanama of the seizure of samples is not established by the complainant. The prosecutor was duty bound to examine Other independent panch. He has rnerely filed pursis Ex. 42 stating that the other panch is won over by the accused. This statement is neither here nor there. The trial Court seems to have relied upon the said pursis Ex. 42 and his personal experience that usually panch witnesses are won over in several cases. He also relied upon the decision of our High Court of (Shankarlal v. The State of Maharashtra)2, in which it has been held that there is no legal embargo upon accepting the evidence of the Food Inspector even if the Panch witness has not been examined. In a given set of circumstances the said proposition may be followed but it does not relieve the Food Inspector from his duty under section 10(7) of the Prevention of Food Adulteration Act. When one panch witness has turned hostile the other panch ought necessarily be examin­ed. In case he also does not support prosecution case, he can be cross-examined and it could be found out whether the said witness has been won over or not. That has not been done in the instant case. Second Panch has been given up without being examined and as such I do not think that there has been a proper compliance of section 10(7) of the Act. 11. The other aspect of the case is that the sample was taken on 22-2-1977, while the complaint was filed on 29-9-1977 i.e. more than six months after the dale of sample. As held in (State of Maharashtra v. Subhash Ramkrishna Uddappi)3, a sample of milk even after addition of formalin is not fit for analysis six months after the date of taking of the sample. In that event the right of the accused to get the sample independently analysed would naturally be frustrated. As held in (State of Maharashtra v. Subhash Ramkrishna Uddappi)3, a sample of milk even after addition of formalin is not fit for analysis six months after the date of taking of the sample. In that event the right of the accused to get the sample independently analysed would naturally be frustrated. In the present case the accused appeared for the first lime on 23-4-1978 i.e. one year and two months after the date of the sample and there was no useful purpose to be served by sending a sample for analysis on behalf of the accused. I am, therefore, in agreement with the contentions of the applicant that his right under section 13(2) of the Act has been frustrated. 12. In view of these two basic infirmities in the prosecution case, I am not inclined to attach much importance to the other submissions on behalf of the applicant. An observation may, however, be made in respect of the contentions of the learned Government Pleader. The learned Govern­ ment Pleader submitted that Public Analyst's report was sent by registered post with acknowledgement due to the accused much before filing of the complaint. The applicant-accused refused the said envelope and there, he cannot claim that his right under section 13(2) of the Act has been frustrated. In this connection, applicant's counsel drew my attention to the fact that it was the specific case of the accused that he had not received any such envelope by registered post and he has not refused any such envelope containing Public Analysts report. He also pointed out that such a suggestion was made to P. W. I the Food Inspector, In that event it was for the Food Inspector to examine the concerned postman to prove the endorsement of the refusal allegedly made by the accused. That has not been done, and hence I find that the contention of the learned prosecutor cannot be sustained. 13. In the light of the discussion above, I am of the opinion that there are two basic infirmities in the prosecution case and the trial Court as well as lower appellate Court have lost sight of the fact that independent panch having been declared hostile, the other panch ought necessarily to have been examined and if the other panch is not examined an adverse inference could be drawn against the prosecution. At any rate it was a case where benefit of doubt has to be extended to the accused. The other infirmity being that the case was launched belatedly thus frustrating the right of the accused. These infirmities have led to miscarriage of justice and I, therefore, feel that it is a fit and proper case where interference is called for, Hence, the following order. 14. Criminal Revision Application No. 40/1981 is allowed. The con­viction and sentence imposed upon the applicant under Prevention of Food Adulteration Act are quashed and set aside. The applicant be set at liberty. The bail bond shall stand discharged. Fine, if paid be refunded to the applicant accused. Revision application allowed.