This Govt. appeal is directed against the judgment and order dated 24. 9. 80 passed by the learned Chief Judicial Magistrate, Kamrup, Gauhati, by which the accused-present respondents were acquitted of the charges under Section 16/17 read with Section 7 of the Prevention of Food Adulteration Act, 1954, hereinafter 'the Act'. 2. On 12.8.77 at about 2-45 P. M. Joy Gobinda Kakoty Area Food Inspector, hereafter 'the Inspector' after disclosing his identity decided to take sample of 'Dahi' from M/s. Gopal Hotel & Restaurant situated at Kumrup Chamber Road, Fancy Bazar, Gauhati, of which the respondent No. 2 was the Man­ager and Respondents No. 3 and 4 were the partners. The Inspector collected the sample which was sent to public Analyst who reported that the sample of Dahi did not conform to standard. Necessary sanction was obtained and accused-res­pondents were prosecuted. In support of its case the prosecution examined P. W. 1 Joy Gobinda Kakoty and P. W. 2 Dhru-bajyoti Das who had accompanied the Inspector and relied upon documents including the report of the Public Analyst. The accused persons denied the charge but did not adduce any evidence. The learned trial court on consideration of the evidence came to the conclusion that the prosecution had not proved that the sample of Dahi was taken in accordance with law and accordingly acquitted the accused. 2. Aggrieved, the State has come in appeal and Sari G. Gopal, learned public prosecutor appearing on its behalf has submitted that the sample of curd had been taken in accord­ance with law and rules and the Public Analyst Report clearly established that it was adulterated. Shri J. M. Choudhury, learned counsel appearing on behalf of respondents on the other band submitted that Public Analyst Report did not establish that the sample of curd was adulterated. 3. We have considered the submissions of the learned counsel on both the sides. 4. Ext. 5, is the Public Analyst Report which is the foundation of the contention that the sample of curd was adulterated. It shows that on analysis it was found that the sample of curd contained the following: "Milk fat- 3.68% Solids not fat- Deficiency in 12.1% milk fat- 38.67% Sucrose- Absent." The prosecution relied upon the provision in 'A. II. 02. 04' of the Prevention of Food Adulteration Rules, 1955 framed under the Prevention of Food Adulteration Act, 1954. It reads:- "A. II. 02. 02. 04' of the Prevention of Food Adulteration Rules, 1955 framed under the Prevention of Food Adulteration Act, 1954. It reads:- "A. II. 02. 04- "Dahi or curd" means the product obtai­ned from pasteurized or boiled milk by souring natural or otherwise, by a harmless lactic acid or other bacterial culture. Dahi may contain added cane-sugar. Dahi shall have some minimum percentage of milk-fat and milk solids non-fat as the milk from which it is prepared. Where dahi or curd, is sold or offered for sale without any indication of class of milk the standards prescribed for dahi prepared from buffalo milk shall apply". In A. II. 01. II, the standard for different classes of milk are laid down. It shows that while for buffalo milk in Assam the minimum percentage of 'milk fat' is 6.0% and milk solid not- fat' is 9.0% ; for cows milk in Assam minimum percentage of 'milk fat' is 3.5% and for 'milk solids not fat' is 8.5%. 5. It may be noted that the 'Dahi' in question conform­ed to standard of cow milk Dahi but not to the standard of buffalo milk Dahi. 6. Shri G. Gopal, learned Public Prosecutor has contended that in view of-the provision that in the absence of any indication of class of milk the standard of Dahi prepared from buffalo milk was to apply and hence the 'DAHI' in que­stion was adulterated. Shri Gopal has also placed reliance on the statement of P. W. -1 the inspector in cross-examination that the DAHI from which sample was taken was of 'buffalo milk' 7. We have not found it reasonable to accept the state­ment of P. W.-1 Joy Gobinda Kakoty that the DAHI had been prepared from buffalo milk for the reasons firstly, it had an were been so stated earlier and secondly, the DAHI had not been prepared in his presence and therefore his statement that it was buffalo milk 'DAHI' should not be accepted. It may be noted that P. W. -2 D. Das said 'I do not remember what sort of milk the curd was made of, cow milk or buffalo milk. I do not know whether witness No. I asked anything about it.' P. W. -1 the Inspector admitted that there was curd in three other containers which were full and be did not suspect the curd in it. I do not know whether witness No. I asked anything about it.' P. W. -1 the Inspector admitted that there was curd in three other containers which were full and be did not suspect the curd in it. The sample was taken from a fourth container from which curd had been sold. 8. The prosecution did not prove that accused Manager at the time was required to indicate the class of milk from which the 'DAHI' had been prepared but had refused to do so or had evaded the required indication. We think that the prosecution should have proved the fact, that is that, the class of milk used was not indicated at the time of sale and then alone the aforesaid provision in A. 11. 02.04. could be invoked. 9. In so far as reliance on the second part of A.II.02.04 referred above is concerned, we think that it should not be so readily accepted and invoked because as is well known even though 'buffalo milk' is available in Assam, it not commonly availble and commonly sold in the Market and the milk com­monly so understood and sold in the market is generally 'cow milk'. So also 'DAHI available and sold in Gauhati and most other parts of the State is prepared from cow milk. During the hearing there was no controversy or dispute at the 'Bar' that milk available and sold in Gauhati and most of the other parts of this State is only cow milk. Here in trade parlance as well as in common parlance, milk means cow milk. It is so understood in the trade by the trader and the consumer. During the hearing there was no controversy or dispute at the 'Bar' that milk available and sold in Gauhati and most of the other parts of this State is only cow milk. Here in trade parlance as well as in common parlance, milk means cow milk. It is so understood in the trade by the trader and the consumer. In our opinion the need for indication of the class of milk from which the 'DAHI' was prepared and was offered for sale, could arise only when DAHI from 'buffalo milk' and 'cow milk' both were commonly prepared and were available for sale, we think that while considering the provision which requires indication of class of milk the fact that 'milk' as commonly understood in GAUHATI and this State is cow milk more so when buffalo milk' is not commonly available and sold as milk, in the State should also be duly considered and it shall not be proper and just, without anything more, to accept that because the sample of 'DAHI taken did not can form to the standard prescribed for buffalo milk 'DAHI' it was adulterated. The aforesaid, pro­vision could be invoked where cow milk and buffalo 'milk' are available for sale and 'DAHI' prepared from both kind of milk is commonly available for sale, so that it may be necessary to indicate the class of milk used in preparation of the milk product such as 'DAHI' As said before since in the State of Assam and in Gauhati generally only cow milk is available and 'DAHI' sold is prepared from cow milk and in trade parlance and common parlance 'DAHI' is understood to be cow milk 'DAHI' prepared from cow milk, we are unable to rely only on the said provision to accept that the 'DAHI' in question which did not conform to buffalo milk 'DAHI' but which did conform to standard of cow milk DAHI was adulterated. 10 It may also be noted that in examination under section-313 of the Code of Criminal Procedure no such question was put to accused persons, who could have possibly stated about the class of milk from which 'DAHI' was prepared. 11. For the aforesaid reasons, we thick that the prosecution had not established that sample of DAHI taken was adultera­ted. In this view of the matter it is not necessary to go into other questions involved in this appeal. 11. For the aforesaid reasons, we thick that the prosecution had not established that sample of DAHI taken was adultera­ted. In this view of the matter it is not necessary to go into other questions involved in this appeal. The appeal fails and is dismissed.