JUDGMENT Kundan Singh, J. - This appeal has been preferred by Nagar Swasthya Adhikari, Nagar Mahapalika, Agra, against the judgment and order dated 27.8.77 whereby Sri A.N.Khan, the then Additional Chief Judicial Magistrate, Agra, has acquitted the accused respondent of the charge under Section 7/16 of the Prevention of Food Adulteration Act. 2. It is said that on 22.12.74 at about 12 noon Sri R.C. Saxena, Food Inspector, took a sample of milk from the shop of the accused-respondent, situated in Loha Mandi, Agra. The sample was sent to the Public Analyst for analysis, who found 5.6% fatty solids and 6.3% non-fatty solids in the sample of milk taken from the shop of the respondent and in the report of the Public Analyst it was mentioned that the milk of the respondent was found deficient in non-fatty solids. 3. The learned Magistrate has passed the order of acquittal solely on the ground that the deficiency of non-fatty solids in the milk being marginal was ignorable and also observed that Mahavir Prasad, the own witness of the prosecution, has not supported its case. 4. I have heard the learned counsel for the complainant and that of the respondent. The learned counsel for the appellant argued that deficiency of non-fatty solids cannot be ignored and in this connection he relied upon the case Prem Chand v. State of U.P. 1984 (21) ACC 416 in which it was held that deficiency of non-fatty solids was not ignorable simply because the fatty contents were more than the prescribed standard. This point has also been considered by this court in the case Nawal Singh v. State of U.P., 1985 (Suppl.) ACC 199. . In this case Hon'ble V.N. Mishra, J. while disagreeing with some of the decisions referred to in his judgment desired constitution of a larger Bench by the Hon'ble the Chief Justice for an authoritative decision on the following question: " Whether milk in which non-fatty solids alone are found deficient and less than the prescribed standard would be deemed to be adulterated or not?" 5. The matter thus came up before a Division Bench and the learned Judges while recording their opinion on the point referred by the learned Single Judge. The matter thus came up before a Division Bench and the learned Judges while recording their opinion on the point referred by the learned Single Judge. They placed reliance on a Full bench decision in the case Prem Dass v. State of U.P., 1961 A.W.R. 405, and also a Division Bench decision of this court in State of U.P. v. Safri Ram, 1963 A.W.R. 768 and opined that the milk must be held to be adulterated even if it found to be deficient only in non-fatty solids. 6. The learned counsel for the respondent could not substantiate that the aforesaid view taken by this court is not applicable to the facts and circumstances of the instant case. The learned counsel for the respondent again urged that it appears that the trial court has passed the order of acquittal only on the ground that non-fatty solids found in the milk could not be made basis for recording the verdict of guilt against the respondent whereas there are certain other points which ought to have been considered by the trial court and therefore, it would be better if the order of acquittal is set aside and the case is remanded back to the learned Magistrate for considering other points as well inasmuch as appropriate opportunity for the accused-respondent would be available at the trial stage and not in this court for challenging the prosecution of the respondent. I have considered this argument of the learned counsel consciously and feel that it would be proper in the facts and circumstances of the case if the case is sent back to the trial court where both parties be given opportunity of being heard and findings be recorded on other points leaving the question of deficiency of non-fatty solids in the milk. As both the parties have already led their evidence, no fresh evidence be permitted by either party. 7. In the result, the appeal is allowed. The order of acquittal recorded by the learned Additional Chief Judicial Magistrate, dated 27.8.77 is set aside. The case is sent back to him for a fresh decision in the light of the observations made above either by himself or by any other Magistrate of competent jurisdiction. The learned Magistrate shall take steps to summon the accused-respondent and give opportunity to both the parties of hearing without entertaining fresh evidence from either side. 8. The case is sent back to him for a fresh decision in the light of the observations made above either by himself or by any other Magistrate of competent jurisdiction. The learned Magistrate shall take steps to summon the accused-respondent and give opportunity to both the parties of hearing without entertaining fresh evidence from either side. 8. The office is directed to send down the record of the court below forthwith.