JUDGMENT R.K. Shukla, J. 1. This appeal filed on behalf of the Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad under section 378 (4) CrPC, is directed against the judgment and order dated 25-4-1938 passed by Sri K. P. Mathur, Special Judicial Magistrate, Allahabad whereby he has acquitted Asharfi Lal Yadav, accused-respondent of the charge under section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as Act). 2. Brief facts of the case are that on 19-12-1975 at 1.30 P. M., at Allahpur Matiara Road, Allahabad, Tulsi Ram Dubey PW 1, Food Inspector, Nagar Mahapalika, Allahabad disclosed his identity to the accused and told him that he would take sample of the mills for analysis. After giving notice to the accused in from VI, the Food Inspector took 660 ml., of milk on payment of its price. The Food Inspector has further stated in his cross- examination that he did not purchase 660 ml. milk in one bulk, but he first took 500 ml. then 100 ml. and thereafter 60 ml. approximately. Thereafter he filled the whole 660 ml. milk thus purchased from the accused-respondent in three phials equally after mixing formaline. It is not noted in form VI as to what was the class of the milk purchased as sample. The Public Analyst tested and reported treating it as buffalo milk. On analysis, the Public Analyst found fatty contents 2.6% and non-fatty solids were found 9.9%. Thus there was a deficit of 57% in fatty contents. After obtaining sanction, complaint was filed. The prosecution examined two witnesses, namely, Tulsi Ram Dubey Food Inspector PW 1 and S. C. Srivastava PW 2 in support of its case. The accused-respondent denied sale of milk sample and said that the: Food Inspector did not take milk sample in bulk but each phial was separately filled from the can one by one. After considering the entire evidence, the Special Judicial Magistrate, Allahabad acquitted the accused-respondent on the following two grounds :- 1. That it cannot be said that the prosecution has proved that formaline was added to the milk sample as required under rules 20 and 21. 2. Compliance of Section 11 (1) (b) has not been made out. The Food Inspector did not take milk sample in bulk to be divided in three equal parts. Such sample cannot be said to be worthy of reliance. 3. 2. Compliance of Section 11 (1) (b) has not been made out. The Food Inspector did not take milk sample in bulk to be divided in three equal parts. Such sample cannot be said to be worthy of reliance. 3. Tulsi Ram Dubey PW 1, Food Inspector has clearly stated that on 19-12-1975, at about 1.30 p. m. he purchased 660 ml. milk from Asharfi Lal Yadav, the accused respondent and sealed it in three phials after mixing formaline. In the cross-examination, he has stated as under :- "......Mulzim ke pas 220 ya 660 ml. ka napna nahi tha. Formalin bhi apne satn rakhta hon 660 ml. dudh ikattha nahin liya tha alag alag le kar teno shishion me barabar bhara tha. Mulzim ke pas can tha usi me liya 500 ml. fir 100 ml. liya fir 60 ml. andaz se liya.........." 4. From the above statement, it is quite clear that the Food Inspector first took 500 ml. milk then 100 ml. and thereafter 60 ml. milk, as there was no pot from which he could measure 660 ml. milk in one bulk, therefore, he took 500 ml. and 100 ml. milk from Napna and 60 ml. milk from his estimate. He mixed the whole 660 ml. milk -and thereafter mixed formaline. Then he divided the sample in 3 equal parts and filled the milk in 3 phials as required by law. Thus there was no contravention of Section 11(1) (b) of the Act. It is not the requirement of Sec. 11 (1) (b) that all the milk should be purchased in one bulk. The only requirement is that the sample milk should be filled in three phials in equal quantity. That has been done in this case. According to Section 11 (1) (b) of the amended Act, the Food Inspector has to divide the sample then and there into 3 parts, mark and seal in such manner as its nature permits and take signatures or thumb impression of the person from whom the same has been taken in such place and in such manner as may be prescribed. According to Section 11 (1) (c) of the Act, he should send one of the parts for analysis to the Public Analyst under intimation to the local Health Authority and send the remaining two parts to the local Health Authority for purpose of preserving the same. 5. According to Section 11 (1) (c) of the Act, he should send one of the parts for analysis to the Public Analyst under intimation to the local Health Authority and send the remaining two parts to the local Health Authority for purpose of preserving the same. 5. There is a divergence of judicial opinion on the mode of taking samples by the food Inspector, on the one hand, he High Courts of Allahabad and Gujarat in the cases of Bankey v. State of U. P., (1979) 1 FAC 319 Allahabad : Martand Balvant Risaldar v. Hasanbhai Gulamhusain, 1978 CrLR (Guj). 316 have taken the view that Section 11 (1) (b) whether the sample is taken once and divided into three parts from a tin of mustard oil or three phials are dipped in the same mustard oil one after the other and sample are taken separately, is of no consequence because under section 7 of the Act, if food sold to the Inspector is proved to be: adulterated, it is of no consequence whether or not it represent as the entire stock in the possession of the accused. It would be sufficient compliance of the law if a sample is taken from the suspected adulterated article of food and divided into three parts or three times, three separate phials are dipped in the same article of food and properly marked and sealed in accordance with law. When three bottles are dipped in the same canister of oil, it cannot be said that each of them does not represent the whole bulk of the oil contained therein. 6. On the other hand, the High Courts of Bombay and Madhya Pradesh have taken a contrary view in the cases of State of Maharashtra v. Mahan Lal Vaishnawa, 1979 UCR 38, Shaikh Hamid v. Dagu, 1979 1 FAC 334 and Daulat Singh v. State of M. P., 1979 2 FAC 269 wherein it has been held that under section 11 (1) (b) of the Act it was incumbent upon the Food Inspector to take a whole sample of 375 gms. of sweet oil and then divide the sample into 3 equal parts and not collect each part from a common container. To my mind, the later view is too technical and not sound. 7. In the instant case, at fust 500 ml. of sweet oil and then divide the sample into 3 equal parts and not collect each part from a common container. To my mind, the later view is too technical and not sound. 7. In the instant case, at fust 500 ml. milk was taken then another 100 ml., milk was taken and thereafter 60. ml. milk was taken approximately and the whole bulk of milk was mixed and divided into 3 parts. There appears to be no illegality in this procedure or any contravention of Sec. 11 (1) (b). No prejudice was caused to the accused-respondent. This case is similar to the case of Ram Jiwan v. State, 1978 (1) FAC 104 decided by Delhi High Court. Therefore, in my opinion, the trial Court was not right in holding that there was contravention of Sec. 11 (1.) (b) of the Act as held in ground no. 2 mentioned above. 8. So far as the ground no. 1 relating to mixing of formaline is concerned, there is no illegality. Tulsi Ram Dubey, the Food Inspector has clearly stated that after taking sample of 660 ml., in the manner mentioned above, he mixed formaline, which he had with him and thereafter he divided the whole 660 ml. milk in 3 equal parts and sealed them in 3 separate phials. There is no cross-examination on the point of mixing formaline and its quantity. Form the report of the Public Analyst (Ex. Ka. 1). it is clear that the milk was found in fit condition for analysis. Therefore, it has caused no prejudice to the accused-respondent. In this view of the matter, I find no merit in this ground as well. The learned counsel of the accused-respondent vehemently contended that Food Inspector has not enquired form the accused-respondent as required by Rule 9 (f) as to what class of milk he was selling. Therefore, standard of buffalo milk applied in this case is not proper and it has caused great prejudice to the accused-respondent. So, the accused-respondent is entitled for benefit of doubt. 9. Rule 9 (f) of the Prevention of Food Adulteration RULEs reads as under :- "9(f) to make such enquiries and inspections as may be necessary to detect the manufacture, storage or sale of articles of food in contravention of the Act or rules framed thereunder ; " 10. So, the accused-respondent is entitled for benefit of doubt. 9. Rule 9 (f) of the Prevention of Food Adulteration RULEs reads as under :- "9(f) to make such enquiries and inspections as may be necessary to detect the manufacture, storage or sale of articles of food in contravention of the Act or rules framed thereunder ; " 10. According to this Rule, the Food Inspector is required to find out as to whether the milk being offered for sale is (a) buffalo milk, cow milk or any other class of milk or (b) merely a milk without any indication of any class. In the case of Asiq v. State, (1981) 2 FAC Allahabad 51 Hon'ble Murlidhar, J. as he then was has held on the evidence of that case that there was nothing to show that vendor was avoiding to give the class of the milk. The evidence showed that the Food Inspector never cared to find out what class of milk the applicant claimed to be carrying. Therefore, it was held in that case that it would not be possible to contend that the milk was offered for sale without any indication of class and fall back on the Note 1 for following the standard of buffalo milk. As the note does not apply, the milk cannot be held to be adulterated. In the instant case, there is no evidence on the record to indicate that when the Food Inspector purchased the sample of milk in dispute, the Food Inspector cared to ascertain the class of milk. There is no legal obligation on the vendor to disclose the class suo-motu when any one wants to buy the article. It will, therefore, not be possible to say that the class of milk is not indicated in the cases where the vendor says nothing and there is no evidence of any attempt to elicit the same. Only cases where notwithstanding such attempt, the vendor chooses not to disclose the class of milk or is unable to disclose it, it will correctly be the class offered for sale without indicating of the class. In the present case, no question was put to the accused- respondent about the class of milk he was selling. In absence of compliance of Rule 9(f). application of the standard of buffalo milk has caused great prejudice to the accused-respondent and he is entitled for benefit of doubt. In the present case, no question was put to the accused- respondent about the class of milk he was selling. In absence of compliance of Rule 9(f). application of the standard of buffalo milk has caused great prejudice to the accused-respondent and he is entitled for benefit of doubt. 11. The learned counsel for the appellant has relied on Prem Das v. State, 1961 AWR 405 for applying the standard of buffalo milk. That case is distinguishable from the facts of the present case. In the Prem Das's case, it was found that the applicant sold mixture of buffalo and cow milk, a sample of which was taken by the Food Inspector and sent for chemical analysis. The Public Analyst reported that the sample contained 5.9% milk fats and 7.0% non-fatty solid and that it contained 7.2% added water. Therefore, that Full Bench decision is not applicable to this case and in any case, the prosecution is not justified in the circumstances of the cage in applying the standard of buffalo milk when no attempt was made by the Food Inspector to ascertain the class of milk being sold by the vendor. 12. Relying on the observations of the Supreme Court in the case of Food Inspector Municipal Corporation, Baroda v. Madan Lal Ram Lal Sharma, 1983 AWC 126 SC that the churning is one of the methods of making sample homogeneous and representative, the learned counsel for the accused- respondent contended that there is no evidence on the record to show that any churning was done in this case before taking the: sample. Neither the learned counsel for the appellant nor I could find any evidence on the record which may indicate that churning was done before taking sample. Though there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument or by hand, it has received a judicial recognition in the above mentioned case that in milk and milk preparations, it is cisunctly possible that the fat settles on the top and in order to find out whether the milk or its preparations such as curd has prescribed content, the sample must be homogeneous and representative so that true analysis tan furnish reliable proof of nature and content of the article of ford under analysis. For this purpose, churning is one of the methods of making the sample homogeneous and representative. In absence of any evidence or indication of churning, this point also goes in favour of the accused-respondent. In view of the above discussion, there is no doubt that the two aforesaid grounds for acquittal are not justified. Even then it is not safe to convict the accused-respondent in absence of compliance of Rule 9 (f) as discussed above. In any case, the accuaed- respondent is entitled for benefit of doubt. 13. In the result, appeal fails and is accordingly dismissed. Appeal dismissed.