JUDGMENT - V.S. KOTWAL, J.:---On September 6, 1977 sometime in the morning the complainant Food Inspector went near Shivaji Chowk at Sinnar in Nasik District presumably for effecting raid in connection with sale of adulterated milk. He had taken two panch-witnesses as also his assistant. They were at short distance when they noticed one person sitting in the chowk under a tree with four cans and he was engaged in selling the milk from those cans to some of the customers, who were by his side. The complainant rushed towards him and disclosed his identity when he was told that buffalo milk was being sold from those cans. He then purchased 660 ml. litre of milk from the two cans out of the said four cans, on payment of an amount of Rs. 1.32 as the price. A cash memo was issued by the accused. The other formalities then came to be observed including dividing the said quantity in three equal parts, which were filled in six separate bottles which in turn came to be sealed putting lakh seal as well as paper seal bearing the sample number and Local Health Authority number and wrapper was placed around the bottles with twine string. The signatures of the accused were also taken thereon. The necessary information was collected as per requirement of the Rules under the Prevention of Food Adulteration Act. The accused was furnished with a receipt containing all those details and then a panchnama was drawn of all the happenings. On the next day one sample bottle was forwarded to the office of the Public Analyst as required by the Rules along with necessary Forms by Registered Post. The Public Analyst by his report dated 5th October, 1977 certified that the commodity was adulterated inasmuch as it contained 25.5% of added water and thus did not confirm to the standards of buffalo milk as per Rules. The two other samples were already forwarded to the Local Health Authority. A copy of the Public Analyst's report was also then forwarded to the Local Health Authority. The complainant then obtained necessary sanction in his favour for launching the prosecution and ultimately filed his complaint on 24th February, 1978 being Criminal Case No. 84 of 1978 against the accused in the Court of the Judicial Magistrate. A copy of the Public Analyst's report was also then forwarded to the Local Health Authority. The complainant then obtained necessary sanction in his favour for launching the prosecution and ultimately filed his complaint on 24th February, 1978 being Criminal Case No. 84 of 1978 against the accused in the Court of the Judicial Magistrate. First Class at Sinnar for offence under section 7(i)(v) read with section 16 of the Prevention of Food Adulteration Act. This was intimated to the Local Health Authority, who in turn informed the accused on 28th February, 1978 that if the accused desired to get the sample sent to the Central Food Laboratory at Calcutta for analysis then the accused should move the trial Court in that behalf. A copy of the Public Analyst's report was also sent to the accused under that letter and which was received by the accused on 3rd March, 1978. The accused, however, did not exercise that option and faced the trial. 2. Pleading not guilty to the charge which was framed after recording some evidence, the accused came out with the denial of all the adverse allegations. He also denied his signature on various documents. It was suggested that one Keru Kundalik Kalunge was found selling the milk near about the spot when raid was effected by another Food Inspector Kulkarni and the accused declined to act as panch in that case and, therefore, he has been involved falsely. 3. The learned trial Magistrate accepted the prosecution evidence and held the accused guilty of the said offence with which he was charged. In persuance thereof the accused was sentenced to imprisonment till rising of the Court and to pay a fine of Rs. 500/- or in default to suffer R.I. for three months. This order was recorded on 18th August, 1981. The accused did not prefer any appeal against that conviction. However, the State has filed this appeal under section 377(1) of the Code of Criminal Procedure against the quantum of sentence praying that the sentence imposed by the trial Court be enhanced. 4. Shri Kothari, the learned Public Prosecutor, for the State contended that basically the requirement of law is that for such an offence the sentence even in the minimum would not be less than six months. 4. Shri Kothari, the learned Public Prosecutor, for the State contended that basically the requirement of law is that for such an offence the sentence even in the minimum would not be less than six months. However, a slight distinction has been made by the legislature itself vis-a-vis some offences under this Act where some leniency is to be shown, but in that contingency also a minimum sentence of three months has been prescribed. He, therefore, submits that in view of this situation, and legislative mindate, no discretion is vested in the Court to give a sentence less than the minimum prescribed. Applying this test, according to Shri Kothari, therefore, sentence of one day and 500 rupees fine is wholly disproportionate and does not fit in with the requirement of law and, therefore, insisted that either the sentence of six months be imposed or in the minimum atleast three months' sentence should be inflicted. On merits, he supported the judgment and prosecution case. Smt. Pingulkar the learned Counsel for the respondent-accused, endeavoured to submit that though the phraseology used in the provision does ostensibly suggest that minimum sentence has got to be atleast three months, still it does not necessarily mean that discretion is outsted from the Court for giving less than three months in an appropriate case for appropriate reasons. She also contended that the alleged offence took place in September 1977 and appeal is being decided in September 1986 and thus according to her, it would be extremely harsh to impose a substantive sentence on the accused after a period of 10 years. According to Shri Kothari, the learned Counsel, however, this would be irrelevant because once the offence is established, this Court would have no option but to inflict minimum sentence. Smt. Pingulkar, the learned Counsel in the alternative submitted while challenging the conviction on merits that in view of several infirmities and deficiencies in the evidence, the conviction itself is not sustainable and, therefore, she prays for acquittal of the accused. 5. Since this is an appeal where sentence is sought to be enhanced, the accused obviously would get a right to challenge the conviction itself notwithstanding the fact that the accused himself had not preferred an appeal against the conviction. 5. Since this is an appeal where sentence is sought to be enhanced, the accused obviously would get a right to challenge the conviction itself notwithstanding the fact that the accused himself had not preferred an appeal against the conviction. This apart, even otherwise when the sentence is sought to be enhanced, it would be obviously obligatory on the Court to analyse and assess the evidence on its own merits, especially when as rightly submitted by Smt. Pingulkar, the learned Counsel, that it is nearly after 10 years that the question of enhancement of sentence has cropped up. We have thus examined the entire record with the assistance of learned Counsel for both sides, and we feel that the matter is not free from doubt as some of the questions are quite debatable which are not even answered by the prosecution and which are equally ignored by the learned trial Magistrate. 6. We have already indicated above the nature of allegations of the prosecution. In short, at about 10.30 a.m. on September 6, 1977 the accused was seen selling milk when he was possessing four cans of buffalo milk when certain quantity was purchased by the complainant in the capacity as Food Inspector and certain formalities were observed and the Public Analyst's opinion was obtained when it was certified that it was an adulterated sample, since it did not confirm with the rules under the Act especially when it was found to have contained nearly 25.5% added water. The accused has denied everything and in view of this denial a more careful assessment of the prosecution evidence is necessary. Some of the salient features which have been canvassed by Smt. Pingulkar, the learned Counsel, can well be indicated. In the first instance, it is apparent from the record that even before the complainant went to the Shivaji Chowk and then rushed to the accused in that chowk itself he had taken two panch-witnesses with him. Significantly the complainant did not even suggest that he had gone there in pursuance of any prior information. Then it is significant to note that even those panch-witnesses, who haven been taken by the complainant before hand have not supported the prosecution on any count. They were thus disowned and cross-examined on behalf of the prosecution. Significantly the complainant did not even suggest that he had gone there in pursuance of any prior information. Then it is significant to note that even those panch-witnesses, who haven been taken by the complainant before hand have not supported the prosecution on any count. They were thus disowned and cross-examined on behalf of the prosecution. Shri Kothari the learned Public Prosecutor, no doubt submitted that they have admitted their signatures on the panchnama and some of the documents and, therefore, the proof of those documents and especially of the panchnama can be held to have been established. Admittedly, the panchas have completely denied that they had even gone to the spot in Shivaji Chowk. According to them, all those documents were brought to them duly prepared by the Food Inspector when they were in their respective shops and their mere signatures were obtained. Thus they asserted that nothing had happened in their presence and if that be so then it would not be proper to place implicit reliance atleast on the document, which is styled as panchnama. It appears from the original panchnama that the signatures of both the panch are obviously in different ink which tends to support atleast ostensibly their contention that the panchnama was already written and their signatures were taken in their shops. The complainant then admits that there were atleast 5 or 6 persons close to the accused to whom the accused was selling the milk. Thus the process of selling of milk was in progress when the complainant went there. It is not as it that all those customers dispersed the moment they saw the complainant rushing towards the accused because they continued to be on the spot even after arrival of the Food Inspector. Thus the basic fact that accused was really selling the milk could well have been established by simple process of examining atleast one witness from those customers. Still not only no one from that batch has been examined but the complainant candidly admitted that he did not even make enquiry with any one nor did he take down their names and addresses and he just allowed them to go away from the spot. It was also submitted by the learned Counsel for the respondent that someone from this batch could have been asked to act as panch, which would have been more rational under the circumstances. It was also submitted by the learned Counsel for the respondent that someone from this batch could have been asked to act as panch, which would have been more rational under the circumstances. It is not indicated as to whether any cash amount was found with the accused nor is there any evidence of the complainant that any measure was found so that milk could have been sold to the customers. It is then suggested that cash memo was supposed to have been issued by the accused which is at Exhibit 15. That cash memo is admittedly not on any printed form or printed sheet, but it is on a plain loose sheet. Some of the writing on the same are obviously in different ink. It does appear atleast from the manner in which the signature purporting to be that of the accused appears thereon that the entire writing could not have been done by the accused himself. The panchas have also not done it and significantly the complainant admits in terms that he did not scribe even a single word on that document. That means the author of the said document is someone else. The complainant when questioned further clearly admitted that he did not know as to who wrote that document. As to who would be the scriber of that document has not been properly explained. Some confusion has also been committed vis-a-vis Code number and sample number. It is not clarified as to from where and at what point of time the complainant had obtained the Code number from the Local Health Authority because that Authority's number is to be written on the label which is to be pasted on the bottles. The complainant in that behalf has admitted that without reference to any document, he could not say as to when he got that number. All the documents do indicate that this number might have been written subsequently because the manner of writing, the instrument with which it was written and also difference in ink, would support this inference and this is to be read in the light of the admission of the complainant. If that be so, then one cannot say with that degree of certainty that all the required process including the sealing part as also putting of the necessary number on the seals was done at the spot. If that be so, then one cannot say with that degree of certainty that all the required process including the sealing part as also putting of the necessary number on the seals was done at the spot. This assumes importance because the accused has completely denied the authorship of that document as also he being the signatory. No one has seen the accused signing the document. Under the circumstances, these features pertaining to this document and which would be common to all other documents would assume importance and that importance becomes more magnified when we find that both the panch-witnesses have completely disowned the prosecution case. No doubt, lakh seal was alleged to have been affixed on the bottles but that would not be enough by itself and other part of the sealing was more necessary and it cannot be said with certainty that it was really done on the spot. Merely because the Public Analyst's report indicate that seal was intact it does not necessarily mean that first terminus at the time of obtaining sample has been properly established by the prosecution. They have also examined the complainant's assistant, who was admittedly present along with him at that time. There is also an anxiety on the part of the complainant to deny the presence of another Food Inspector Kulkarni near about the spot. However, ultimately he come round and admitted that the said other Food Inspector was at a short distance and was effecting raid on yet another Milk Vendor by name Keru. It does appear that all the persons were in the close vicinity and, therefore, in all probability Kulkarni also might have been there and yet he has not been examined. The accused had come out with a positive defence that the milk from the said person Keru was taken by Kulkarni and the complainant had asked the accused to act as a panch against the said person Keru and since the accused declined, this case has been foisted on him. Though it would not be proper to record any firm finding either way in the absence of adequate material, still in view of all the attendant circumstances, including the panchas not supporting the prosecution, this suggestion of the defence would require serious consideration and cannot be lightly brushed aside. Though it would not be proper to record any firm finding either way in the absence of adequate material, still in view of all the attendant circumstances, including the panchas not supporting the prosecution, this suggestion of the defence would require serious consideration and cannot be lightly brushed aside. It is true that as required by sections 13 and 14 of the Act the Local Health Authority intimated to the accused on 28th February, 1978 that the accused could exercise his option to send the sample to the Central Laboratory at Calcutta and this intimation was received by the accused on 3rd March, 1978. Though there was not much of delay on the part of the Local Health Authority, still there does appear to be some delay inasmuch as the sample was taken on 6th September, 1977 whereas intimation was received by the accused including opinion of the Public Analyst on 3rd March, 1978. Though we are not basing our decision solely on this aspect, yet it cannot be said to be irrelevant. 7. It is unnecessary to multiply the other deficiencies on facts since in our opinion, these infirmities are adequate enough to raise reasonable doubt, the benefit of which will have to be given to the accused. Unfortunately, all these infirmities are not properly considered by the trial Court. The minimum, therefore, that can be said that it would be rather hazardous to record a conviction on the basis of such type of evidence. It is clarified that the deficiencies which are indicated hereinabove and inferences which are being drawn are obviously restricted to the peculiar facts and circumstances of this case and in view of the evidence that is led on behalf of the prosecution and we are further clarifying that under such inferences we do not even remotely intend to lay down any guide line or principle. This, in our opinion, is sufficient safe-guard to ward off any confusion. 8. Consequently, since the accused is entitled to an acquittal, the question of enhancement of sentence does not survive. The net result would be that the State appeal will have to be dismissed, but at the same time conviction and sentence imposed against the accused will have to be set aside. 9. Appeal filed by the State for enhancement of sentence is dismissed. 10. The net result would be that the State appeal will have to be dismissed, but at the same time conviction and sentence imposed against the accused will have to be set aside. 9. Appeal filed by the State for enhancement of sentence is dismissed. 10. The order of conviction and sentence recorded by the learned trial Magistrate against the respondent-accused is set aside and the respondent-accused is acquitted of all the charges levelled against him. His bail bonds stand cancelled. The fine, if paid, be refunded to him. Appeal dismissed. -----