UMESH CHANDRA, J. ( 1 ) THIS is an appeal by Nagar Swasthya Adhikari, Nagar Mahapalika, Allahabad, against the judgment and order dated 21. 3. 1978 passed by Special Judicial Magistrate, Allahabad, convicting and sentencing opposite party, Balraj Yadav son of Ram Kishore resident of Malawan Khurd, Police Station Sarai Inayat, under section 7/16 Prevention of Food Adulteration Act, but instead of sentencing him, released him under the Probation of First Offenders Act, 1958 on his furnishing a personal bond of Rs. 2000/- with two sureties in the like amount to keep peace and good behaviour for a period of two years. ( 2 ) ON 19. 9. 75 at about 11. 30 a. m. Food Inspector Shri Ram Chander (P. W. 1) found the accused selling and carrying for sale milk in Colonelganj. After disclosing his identity purchased 660 M. L. of milk vide Ex ka 1, on payment of its price. This sample was divided into three equal parts and filled in three clean and empty phials. They were leveled, packed and sealed after adding form a line. One sealed public was given to the accused. One of such phial was sent to Public Analyst along with memo and sample seal. The Public Analyst reported that the sample was deficit in fat contains by about 13% and also in non-fatty solid contains by about 2o%. The sample was judged on the basis of the standards applied for buffalo milk. After getting sanction for prosecution and after informing the accused about the report, a complaint was lodged, leading to prosecution of Balraj Yadav for being committed an offence punishable under section 7 (1) (16) (i) (a) (1) of the Prevention of Food Adulteration Act. ( 3 ) IN support of the charge the prosecution examined Ram Chander (P. W. 1), Food Inspector, S. C. Srivastava (P. W. 2) the clerk in the Foods Department. The accused denied the taking of the sample and produced Mata Pher (D. W. 1) in his defence who stated that he carries on milk business. He has cow and buffalo and on 19. 9. 75 he had asked Balraj Yadav to take the milk to Vikrama Singh. This witness was not cross examined by learned counsel for the prosecution. The accused denied the taking of the sample and produced Mata Pher (D. W. 1) in his defence who stated that he carries on milk business. He has cow and buffalo and on 19. 9. 75 he had asked Balraj Yadav to take the milk to Vikrama Singh. This witness was not cross examined by learned counsel for the prosecution. ( 4 ) ON a consideration of this evidence, the learned Special Judicial Magistrate found that Balraj Yadav was selling adulterated milk and therefore, convicted and sentenced as mentioned above. The Nagar Swasthya Adhikari was not satisfied by the sentence passed by the Special Judicial Magistrate and therefore, the present appeal has been filed. ( 5 ) ON a notice being issued, Balraj Yadav put in appearance. It is argued by learned counsel for the appellant that Balraj Yadav could not be released on probation. On the other hand learned counsel for the opposite party argued that the conviction and sentence passed against Balraj Yadav is illegal and must be set aside. ( 6 ) THERE is no doubt that the special Judicial Magistrate has erred in releasing Balraj Yadav on probation. He probably lost sight of section 20aa, which says: Nothing contained in the Probation of Offenders Act, 1958 (20 of 1958) or section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to a person convicted of an offence under this Act, unless that person is under eighteen years of age. ( 7 ) IN the statement before the Special Judicial Magistrate Balraj Yadav on 19. 4. 1977 stated that he was about 20 years of age. Consequently even on the date of the occurrence he was more than 18 years of age. iherefore, the Special Judicial Magistrate has erred in releasing the opposite party on probation. To that extent the appeal has force but the following facts will show that on the evidence on record Balraj Yadav could not be convicted of the offence punishable under section 7/16 Prevention of Food Adulteration Act. Before I come to the fact of this case I may refer to various rules framed under the Act. Rule 5 says that: Standard of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix. Before I come to the fact of this case I may refer to various rules framed under the Act. Rule 5 says that: Standard of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix. Rule 9 (F) says that: 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 there under. Rule 12 relates to notice of intention to take sample for analysis and it may be quoted as under: When a Food Inspector takes a sample of an article for the purpose of analysis, he shall give notice of his intention to do so in writing in Form VI, then and there, to the person from whom he takes a sample and simultaneously, by appropriate means also to the persons if any, whose name, address and other particulars have been disclosed under section 14a of the Act. Appendix B defines and lays down standards of quality as provided under Rule 5 mentioned above and Article 11. 01. 11 lays down standards for different classes and designations of milk. Minimum percent, fat and non fat have been prescribed for buffalo, cow, goat and sheep, mixed, standardised, recombined, toned, double toned and skimmed milk. A note added to this Article says that: When milk is offered for sale without any indication of the class, the standards prescribed for buffalo milk shall apply. ( 8 ) THE argument of learned counsel for the appellant is that while judging the sample the public analyst rightly applied the standards for buffalo milk while on the other hand the learned counsel for the accused has argued that there being no indication about the quality of milk purchased, no reliance can be placed on the report of the public analyst. ( 9 ) RELIANCE has been placed by learned counsel for the appellant on Shyam Bahadur v. State of U. P. , in which it has been held that when no indication has been given by the appellant about the milks category the standards prescribed for buffalos milk would apply. This ruling is mostly based on the note reproduced above. Learned counsel for the accused relied on the following rulings; In Ashiq v. State. This ruling is mostly based on the note reproduced above. Learned counsel for the accused relied on the following rulings; In Ashiq v. State. 2, it has been held by this Court that: T1the Food Inspector has, to find out whether the milk is being offered for sale as buffalo milk, cow milk or of any other class of milk or merely as milk without any indication of the class. The evidence shows that the Food Inspector never cared to find out what class of milk the applicant claimed to be carrying. In that case it would not be possible to contend that the milk was offered for sale without any indication of the class and fall back on the note apply the standard for buffalo milk if on making such enquiries the vendor does not make any disclosure only then the question of raising a presumption under the above said Article of Schedule B of the Rules would arise. On the other hand, if the Food Inspector does not make any enquiry or if the vendor voluntarily does not state the milk or curd as the case may be, is buffalo milk there can be no question of raising a presumption referred to in the aforesaid article. Recently following the above case, in Nagar Swasthya Adhikari v. Asharji Lal Yadav3, this court has found that rule 9 (f) has not been complied with as Food Inspector while taking the sample of milk, did not ask as to what was its class and therefore, the accused was entitled to the benefit of doubt. ( 10 ) THE note added to Appendix B does not override the duty cast on the Food Inspector under rule 9 (f) as under Rule 12 notice of intention to take the sample for analysis is given by the Food Inspector and he draws the notice in Form VI. This notice must clearly express that the duty cast on the Food Inspector under Rule 9 (f) has been fulfilled, namely, that he has made enquiries about the article of food being sold in contravention of the Act. If the fact is not mentioned in the notice, the omission is fatal to the prosecution case. This notice must clearly express that the duty cast on the Food Inspector under Rule 9 (f) has been fulfilled, namely, that he has made enquiries about the article of food being sold in contravention of the Act. If the fact is not mentioned in the notice, the omission is fatal to the prosecution case. ( 11 ) THIS enquiry must be made at the time when the article is being purchased to detect that the sale of the article of food is in contravention of the Act. Any statement made subsequently is only an afterthought. Even if the appellant had told the Food Inspector that the article was milk (without specifying its kind) it was the duty of the Food Inspector to pin him down and further enquire if the milk of the class and designation is specified in Article 11. 01. 11 so that proper analysis could be made and it could be found if the article of food was being sold in contravention of the Act. Unless further specifications were sought at that time it could not be said that the enquiry was complete to detect whether the article of food was adulterated or not. ( 12 ) IN this case Food Inspector Ram Chander bas stated that the opposite party had told him that it was milk which was being sold and, therefore, it was argued that it was for the opposite party to specify the class of milk that was being sold. The prosecution can get no advantage from the statement made by the Food Inspector because rule 9 (f) says that the enquiry must be such as may be, necessary to detect the sale of the article of food in contravention of the Act. Therefore, it was necessary for the Food Inspector to make full enquiry as to the quality of the milk being sold. ( 13 ) THE Statutory duty and function of the Food Inspector to comply with the terms of Rule 9 (f) has not been satisfactorily proved and the learned counsel for the appellant can derive no help from the case reported in All India Prevention of Food Adulteration Journal 1980 because the note appended to Article 11. 0 1. 11 does not apply to the present case. 0 1. 11 does not apply to the present case. ( 14 ) IN view of the discussion given above, the appeal is allowed and the conviction and sentence passed against the opposite party Balraj Yadav under section 7 (1)/16 (1) (a) (i) of the Prevention of Food Adulteration Act is set aside. Balraj Yadav is acquitted of the offence with which he is charged. The bail bonds and sureties filed by the opposite party are cancelled. Appeal allowed. .