JUDGMENT 1. - Instant criminal revision impugns the judgment dated Sept. 25, 1993 of the leaned Additional Sessions Judge (Special Judge) Essential Commodities Act, Jaipur, whereby the appeal of the accused petitioner (for short the accused) was dismissed and his conviction under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short the Act) was confirmed. 2. The accused was convicted and sentenced under section 7/16 of the Act to undergo three months rigorous imprisonment and a fine of Rs. 500/-. The prosecution case was that on June 29, 1978 the Food Inspector found the accused Mool Chand having in his possession about 15 kgs. of milk carried for a sale in a drum. He demanded a sample and after purchasing 660 ml. of milk, he sent the same to the Public Analyst for examination. From the chemical analysis report the milk was found adulterated by reason of containing 34% of the added water. The Food Inspector, after obtaining the sanction filed complaint against the accused. 3. I have given my anxious consideration to the rival submissions and carefully scrutinised the material on record. 4. Admittedly the Food Inspector, B.P Mathur, was not examined by the prosecution. The receipt Ex. P/t-through which milk is said to be purchased from the accused did not bear the signatures of the accused. There is however a note on the receipt in the handwriting of B.P. Mathur that the accused refused to sign over the receipt. It has also not been mentioned as to whether it was cow's milk, buffalo's milk or goat's milk. PW.1 Devi Singh was produced by the prosecution to prove the signatures of B.P Mathur. PW.2 Devi Sharan deposed that he drafted Ex. P/1, and put his signatures over it. According to him the milk was purchased from the accused. PW.3 Suraj Prakash an independent witness did not support the prosecution case and he was declared hostile. PW.4 Banshi Lal, Class Fourth employee deposed that at the relevant time he was with Food Inspector. He deposed that the milk was purchased by the Food Inspector from the accused. He however, admitted that he accompanied the Food Inspector 5-10 time and appeared in a witness box. 5. In order to prove the guilt of the accused it was incumbent upon the prosecution to prove that the milk was meant for sale. He deposed that the milk was purchased by the Food Inspector from the accused. He however, admitted that he accompanied the Food Inspector 5-10 time and appeared in a witness box. 5. In order to prove the guilt of the accused it was incumbent upon the prosecution to prove that the milk was meant for sale. The only evidence in the case on hand is of Devi Sharan PW.2 and Banshilal PW.4. They are the witnesses of the department. From the perusal of their statements, it is not clear as to whether the milk purchased by the Food Inspector was of cow, buffalo or goat. From the report of Public Analyst, it is also not clear as to whether the sample of milk did not confirm to the standard of purity prescribed for cow's milk, buffalo's milk or goat's milk. 6. Guide lines have been laid down for careful and accurate sampling of milk in the "A Laboratory Manual of Milk Inspection" by A.C. Aggarwala and R.M. Sharma, Fourth Edition, 1961. At page 115 of the said Book, the learned Authors observed as follows: "General Sampling : The careful and accurate sampling of milk is of utmost importance in all analyses of milk. Probably more errors are caused through careless preparation of samples than in the actual performance of the tests. The most important thing to bear in mind in this connection is that the whole body of milk from which a sample is to be drawn should be uniform throughout in its composition, and any sample of milk drawn out of it for analysis must necessarily be a true representative of the whole body of milk. The factors disturbing the uniformity of composition of milk are mainly the separation and partial churning of fat. Thorough mixing of milk must first be ensured either by stirring with a long handled dipper if the container is big, or by pouring from one vessel to another or by shaking gently." 7. Therefore, it was necessary for the prosecution to prove that the milk was purchased after stirring with a long handled dipper or by pouring from one vessel to another or by shaking it gently. Neither Devi Sharan PW.2 nor Banshilal PW.4, have deposed that the sample of milk was taken after stirring the milk by the Food Inspector. Therefore, it was necessary for the prosecution to prove that the milk was purchased after stirring with a long handled dipper or by pouring from one vessel to another or by shaking it gently. Neither Devi Sharan PW.2 nor Banshilal PW.4, have deposed that the sample of milk was taken after stirring the milk by the Food Inspector. The Food Inspector could have been the best witness to prove this fact but he could not be produced as he was not alive at the time of his examination. 8. In Masta Singh v. Union Territory, Chandigarh (1979 Cr.L.R. (SC) page 170 , their Lordships of the Supreme Court propounded that where it was not proved that the milk was cow's milk, the accused was entitled to acquittal. 9. In State of Rajasthan v. Kachab (1979 RLW 307) the Division Bench of this court indicated that if the milk sample was not taken properly according to instructions, the accused entitled to acquittal. 10. As already stated that in the case on hand the prosecution has failed to prove that the sample of milk was of which animal and it did not confirm to the standard of purity prescribed for which milk. It has also not been proved that the sample of the milk was taken according to the instructions. 11. Therefore, both the courts below have committed illegality in not appreciating the evidence in the right perspective. The accused under these circumstances deserve to be acquitted. 12. Resultantly, the revision succeeds and is hereby allowed. The conviction of the accused under Section 7/16 of the Act stands set aside and he is acquitted from the said charges. He is on bail, his bail bonds stand cancelled.Revision allowed. *******